Asymmetric Constitutional Hardball

68 Pages Posted: 28 Feb 2018 Last revised: 1 May 2018

See all articles by Joseph Fishkin

Joseph Fishkin

University of Texas at Austin - School of Law

David Pozen

Columbia University - Law School

Date Written: 2018

Abstract

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity.

After defining constitutional hardball and defending this descriptive claim, this Essay offers several overlapping explanations. Asymmetric constitutional hardball grows out of historically conditioned differences between the parties' electoral coalitions, mediating institutions, views of government, and views of the Constitution itself. The "restorationist" constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party's use of constitutional hardball.

Finally, and more tentatively, this Essay looks to the future. In reaction to President Trump, congressional Democrats have begun to play constitutional hardball more aggressively. Will they close the gap? Absent a fundamental political realignment, we submit that there are good structural and ideological reasons to expect the two parties to revert to the asymmetric pattern of the past twenty-five years. If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.

Keywords: constitutional law, constitutional politics, political parties, norms, conventions, polarization, partisanship, Congress, originalism, living constitutionalism, constitutional restorationism

Suggested Citation

Fishkin, Joseph and Pozen, David E., Asymmetric Constitutional Hardball (2018). Columbia Law Review, Vol. 118, pp. 915-82, 2018. Available at SSRN: https://ssrn.com/abstract=3126344

Joseph Fishkin

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

HOME PAGE: http://www.utexas.edu/law/faculty/profile.php?id=jrf84

David E. Pozen (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/david-pozen

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