Constitutional Hardball vs. Beanball: Identifying Fundamentally Antidemocratic Tactics

Abstract

The constitutional “hardball” metaphor illuminates an important phenomenon in American politics, but it obscures a crisis an American democracy. In baseball, hardball includes legitimate tactics: pitching inside to brush a batter back, but not injure; hard slides, hard tags. Much of the constitutional hardball maneuvers identified by scholars like Mark Tushnet, Jack Balkin, Joseph Fishkin, David Pozen, and David Bernstein have been legitimate, if aggressive, constitutional political tactics. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock the opposing player out of the game.

In this Reply in the Columbia Law Review Online to Fishkin, Pozen, and Bernstein, I first respond to Bernstein’s objections that Obama and Democrats engaged in hardball. In fact, Fishkin and Pozen’s thesis acknowledged that Democrats play hardball, even if not as aggressively as Republicans have. I discuss government shutdowns, birtherism, debt ceiling threats, abuses of the DOJ, and the contrasting manipulations leading to the Iraq War versus the Iran nuclear deal.

This Reply then identifies the Republicans’ fundamentally antidemocratic beanball: voter ID laws and other voting restrictions; extreme gerrymandering; marginalizing racial minorities (e.g., the “birther” conspiracy theory); abusing the Department of Justice (DOJ), for example. The antidemocratic tactics of Trumpism are not a break from the establishment Republican Party, but rather are continuous, if only more extreme. The destructive politics of beanball reflect a deep existential paranoia, racial status anxiety, and a panic over dispossesion and the loss of historical privilege.

Keywords: Constitutional law, legal history, law and politics, hardball