I believe that Cass is describing a very real social phenomenon. There surely are, and have always been, some positions or “norms” that are sufficiently “beyond the mainstream” as to disqualify someone from national office. These norms are “effectively binding” in the sense that one publicly disavows them at one’s peril. While these norms remain stable over time, they can also be contested and eventually supplanted. All this sounds perfectly reasonable and plausible as a description of social norms, but I am still left wondering:
(a) In what sense is such a norm accurately described as a “commitment“;
(b) In what sense is such a norm “constitutive“;
(c) What argumentative purpose is served by invoking the concept of “constitutive commitment”? That is, what does it add to otherwise familiar normative or descriptive claims about rights, law, justice, etc.?
Clarifying these three matters would go a long way to helping me better understand the normative and/or descriptive claim Cass is making about the Second Bill of Rights.
Update: Larry Solum offers his take on constitutive commitments here.
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