Constitutional Hardball

31 Pages Posted: 9 Oct 2003  

Mark Tushnet

Harvard Law School

Abstract

This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible - though sometimes only barely so - by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order. I offer a number of illustrations from constitutional history and contemporary controversies. Although the Essay is largely descriptive, I conclude with some modest normative observations about whether constitutional hardball is healthy for a constitutional community and, for those who think it is not, how we can avoid the practice.

Suggested Citation

Tushnet, Mark V., Constitutional Hardball. John Marshall Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=451960 or http://dx.doi.org/10.2139/ssrn.451960

Mark V. Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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