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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, 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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