Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda

Columbia Law Review Online, Forthcoming

Columbia Public Law Research Paper No. 14-621

13 Pages Posted: 13 Feb 2019 Last revised: 27 Mar 2019

See all articles by Joseph Fishkin

Joseph Fishkin

University of Texas at Austin - School of Law

David Pozen

Columbia University - Law School

Date Written: February 28, 2019

Abstract

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional hardball, Shugerman's distinction between hardball and "beanball" provides a useful starting point for theorizing the conditions under which constitutional hardball may be more or less justified as a matter of political and constitutional morality.

Keywords: constitutional law, constitutional politics, constitutional norms, political parties, government shutdowns, Obama administration, Congress

Suggested Citation

Fishkin, Joseph and Pozen, David E., Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda (February 28, 2019). Columbia Law Review Online, Forthcoming; Columbia Public Law Research Paper No. 14-621. Available at SSRN: https://ssrn.com/abstract=3325195

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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