Constitutional Hardball

Forthcoming, Cambridge Handbook of ConstitutionalThoery (J. King & R.Bellamy eds.)

Harvard Public Law Working Paper No. 21-37

30 Pages Posted: 7 Oct 2021 Last revised: 13 Dec 2021

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Date Written: September 11, 2021

Abstract

After defining the term constitutional hardball and examining how political actors defend specific examples of constitutional hardball, this Chapter examines why political actors engage in hardball, focusing first on their short-term political motivations and then turning to the function of constitutional hardball within reasonably well-functioning constitutional democracies. After examining how political actors defend hardball practices, it offers a “regime-centered” analysis, arguing that constitutional hardball is a signal of proposed or impending constitutional change, and the change might be for the better rather than for the worse. The Chapter ends with a discussion of what might be done to convert constitutional hardball into ordinary political maneuvering, concluding that such efforts are unlikely to succeed and might be inappropriate (though not illiberal) efforts to halt more or less ordinary transformations in political practices.

Suggested Citation

Tushnet, Mark V., Constitutional Hardball (September 11, 2021). Forthcoming, Cambridge Handbook of ConstitutionalThoery (J. King & R.Bellamy eds.), Harvard Public Law Working Paper No. 21-37, Available at SSRN: https://ssrn.com/abstract=3921575 or http://dx.doi.org/10.2139/ssrn.3921575

Mark V. Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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