Constitutional Harball

Several years ago Mark Tushnet wrote a paper in which he tries to develop a notion he terms “Constitutional Hardball”. He embeds the concept in a larger conceptual framework that I don’t necessarily buy, but the basic idea is very valuable in my view:

This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible — though sometimes only barely so — by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order. I offer a number of illustrations from constitutional history and contemporary controversies. Although the Essay is largely descriptive, I conclude with some modest normative observations about whether constitutional hardball is healthy for a constitutional community and, for those who think it is not, how we can avoid the practice.

The basic idea is that there are some things that it seems people are permitted to do, but that also “just aren’t done” until suddenly they are. Tushnet offers the idea of doing redistricting in a non-census year as an example, and also the Bush-era Senate Democrats’ decision to start filibustering Appeals Court nominations.

I think this is a good way to think about the escalating series of filibusters and holds in recent years. America is a country with a written constitution, but a great deal of our constitutional practice turns out to include unwritten norms of conduct. Recently, a lot of political actors have been breaking those norms and deciding to play constitutional hardball. Arguably the real source of all this hardball is increasing levels of partisan identification and ideological coherence. It’s less-and-less likely that you’ll alienate your core supporters by “going too far” and more-and-more likely that you’ll alienate your core supporters by “not fighting.” Consequently, even if people’s views aren’t becoming any more extreme (and I think they really aren’t), politicians are becoming much more tenacious in their pursuit of their objectives.