Constitutional Hardball and Constitutional Crises

Abstract

This essay, written for a conference in honor of Mark Tushnet, discusses Tushnet's concept of constitutional hardball: political claims and practices devised by a political party or movement that are high stakes and designed to alter the existing order's power relations. If successful, they will shift political power to the victors and entrench it for some considerable period of time.

In contrast to Tushnet, I argue that constitutional hardball is not limited to periods of transformative politics, but rather occurs throughout American history. That is because attempts at transformative politics are always bubbling up. Ascendant political movements may try to change the existing order and fail. More likely, dominant political parties and political movements within the existing constitutional order may try to extend and further entrench their power, leading to defensive maneuvers by the other side. Indeed, people are most likely to push the envelope when they are already most empowered within the existing constitutional order. Thus, we should say that constitutional hardball involves attempts to change the constitutional order or to extend and further entrench it. Many, if not most, of these attempts will fail, and so, in hindsight, we will describe the period in which they occurred as one of normal politics.

The second half of the essay compares constitutional hardball with Sanford Levinson's and my theory of constitutional crises. Constitutional hardball is closest to what we call Type Three crises, in which contending sides claim to be faithful to the Constitution and are willing to go outside the boundaries of ordinary politics to press their claims. But not all such crises involve constitutional hardball, and, equally important, not all examples of constitutional hardball produce constitutional crises. In fact, there may be many examples of stealth constitutional hardball, which fly below the radar of public recognition.

Although constitutional hardball does not help us separate transformative periods from normal periods, the concept is still useful precisely because it helps us understand how periods of constitutional normalcy are actually special cases of periods of constitutional transformation.

Keywords: constitutional hardball, constitutional crisis, transformative politics

JEL Classification: K1