Constitutional Hardball

Notes from a few papers on ‘Constitutional Hardball’

Nomic is a game in which changing the rules is a move. In that respect it differs from almost every other game. The primary activity of Nomic is proposing changes in the rules, debating the wisdom of changing them in that way, voting on the changes, deciding what can and cannot be done afterwards, and doing it. Even this core of the game, of course, can be changed.
Nomic: A Game of Self-Amendment by Peter Suber

tl;dr: Constitutional Hardball is a deliberate disruption of the pre-accepted spirit of the game that is non-frivolous and within the letter of the game, undergone in order to re-order the social understanding of the rules, usually in response to an opportunity to avoid longterm loss of said game. It is a high-risk move that can backfire or have unintended consequences, and is therefore not usually attempted during the course of “ordinary politics”, according to the paper from which it is coined. Other papers I’ve found in this discourse discount the idea of a peaceful “ordinary politics”, arguing instead that hardball is a feature of the system that is often attempted by political winners to entrench themselves structurally almost all of the time, only sometimes succeeding in a longer term consensus of the constitutional order.

Most of the world’s nations have codified constitutions, and the United States was the first modern state to do this. There is still a body of institutions, culture, and jurisprudence that inform our understanding of the Constitution and the evolving system that runs on it.

The concept of constitutional hardball (coined in 2004):

A shorthand sketch of constitutional hardball is this: it consists of political claims and practices – legislative and executive
initiatives – that are without much question within the bounds of existing constitutional doctrine and practice but that are
nonetheless in some tension with existing pre-constitutional
understandings. It is hardball because its practitioners see
themselves as playing for keeps in a special kind of way; they
believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents’ victory would be a serious, perhaps permanent setback to the political positions they hold.
Constitutional Hardball, Mark Tushnet (2004)

This is a sensible sketch that makes sense given constitutional historicism, “the idea that the conventions that determine what makes an argument about the Constitution good or bad, what legal claims are plausible, and which are ‘off the wall,’ change over time in response to changing political, social, and historical conditions.” The main amendment I would support is that there are many distinct groups with different constitutional interpretations at any given time, so the idea of “supplanting the existing pre-constitutional understandings” can often actually mean entrenching your own pre-existing episteme against a sea of other contenders. Granted, many cases are more opportunistic than procedural, and many epistemes are larger and more mainstream than others.

There are three rationales for constitutional hardball:

Offensive: The majority party might see an opportunity to change the constitutional order to stave off scenarios of significant power loss
Defensive: To avoid some permanent or serious incursion from the majority party, the minority party might see an opportunity to increase their power while in the minority semi-permanently. Think of the evolution of the filibuster
Protective: After a failed offensive attempt to change the constitutional order, the actor may fear serious retribution. Nixon and Bush II’s late-administration claims to sweeping executive privilege and state secret keeping were generally inspired by fear of legal and political accountability. (This rationale was introduced by another author, later)

Partisan entrenchment exacerbates the use of constitutional hardball. The immediate example the author gives in his 2004 paper is Democratic use of the filibuster during the Bush era, to slow the appointment of judges that were seen as excessively conservative. An earlier and seminal example is the introduction of the judicial review of law in Marbury vs Madison, although it arguably established a ‘pre-constitutional consensus’ rather than going against an existing consensus. One of the clearest examples in recent years was the holding of Merrick Garland’s seat by McConnell’s Senate.

The author claims that “constitutional hardball is the way
constitutional law is practiced distinctively during periods of constitutional transformation.” [or rather, during perceived opportunities for constitutional transformation.]

Characteristics of constitutional hardball:

“One should not be able to observe episodes of
constitutional hardball during periods of ordinary politics. ” (i.e. there must be periods of ordinary politics in order to contrast.) – Some other authors will contest this.
“One way to distinguish periods of ordinary politics from periods of transformation is that during the former pre-constitutional understandings are taken for granted, whereas during the latter such understandings are brought into question. The idea is that the institutional arrangements characteristic of a particular constitutional order – characteristic, that is, of each specific period of ordinary politics – are the presuppositions accepted by all politically significant actors in that period, whereas the whole point of constitutional transformation is to alter the previously taken-for-granted institutional arrangements”
Constitutional hardball might be determined by the immediate political environment and a response to an apparent semi-permanent change to the political order, but the arguments are “non-frivolous”.
Political actors play constitutional hardball when they believe that a shift in constitutional orders is possible. They fail when that belief turns out to be mistaken. This idea might threaten to undermine the idea of Constitutional Hardball, but the perception of the moment of transformation is notable. 1952 and 1960 are ordinary event elections-Nixon positioned himself in a ‘more of the same’ mold- but 1968 was different. Nixon calculated that between the New Deal decaying under the strain of the Civil Rights movement and that the Vietnam War, the possibility of dramatic change on the table. “Putting this analysis in the terms I have developed, Nixon believed in 1968 that there was a possibility of constitutional transformation, and therefore began to play constitutional hardball. As it happened, Nixon misjudged either the situation or his own ability to win at constitutional hardball. But, the difference between his 1960 and 1968 campaigns shows that constitutional hardball need not be the ordinary condition of politics.”

Constitutional Hardball Variants:

Brushback: In baseball, a pitch designed to intimidate the pitcher. Example: FDR’s failed court packing bid, which was ostensibly about court efficiency but was universally understood as a political scheme. FDR didn’t succeed at packing the court, but his instinct was correct about the opportunity for a sweeping new institutional arrangement.
Failures: Sometimes constitutional hardball moves are attempted but doesn’t succeed at any scale. Nixon’s Republicans had adopted an electoral strategy of picking up congressional seats in the South, and a constitutional strategy of attempting to pull power from the Democratic-majority national Congress towards either the Executive or the States; however, Tushnet argues that Nixon was not in a position to transform the constitutional order. When he tried to impound money that was appropriated by Congress for other purposes, his argument that he had a constitution obligation to control spending to control inflation was defeated- he was unable to change the consensus of what was true. Later, Reagan challenged the supremacy of the Supreme Court’s interpretations over the Executive’s own interpretation, and (depending on who you ask) either failed or at least failed to complete the transformation.

The author, writing in 2004, believes that we have been in a period of constitutional hardball for roughly 20 years. It is unclear whether they would agree that normal politics returned in the 15 years since the paper, though I find that hard to believe. From that year, when I was 13, the author closes,

“Are there any ways that politics might produce politicians who refuse to play constitutional hardball? The answer, I suspect, lies in breaking out of the confines of conventional politics. The dynamics I have described occur because the two major parties are ideologically polarized. One institutional solution would be the creation of a third party, an energized center. Because the emergence of such a party seems extremely unlikely, I suspect that we are going to experience constitutional hardball until the Republican party establishes its dominance in all branches, or until its leaders realize that they are not likely to do so in the foreseeable future.”
Constitutional Hardball, Mark Tushnet (2004)

Cute.

A taxonomy of major Constitutional Arrangements is not attempted in these papers, which is too bad because that would have been fun to see. Based on a summary of a contemporary book by the 2004 paper author, his overhanging idea is that the Post-New Deal American Constitutional Arrangement lasted from the 1930s to the 1990s (with Bill Clinton’s electoral gambits and the 1996 claim that the “Age of Big Government is Over”, a philosophical claim that the government’s aspiration to “achieve justice through the law has been chastened”).

We are now in a new constitutional order — one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime’s animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems.
The New Constitutional Order – book overview by Princeton University Press

Constitutional Hardball Tactics

Constitutional hardball is generally a tactic to dig into the political procedural layer to win more games on a partisan or policy level; however, as this paper (Balkin 2008) argues, sometimes constitutional practices are amended without succeeding in locking in partisan power. Bush II brought about a massive increase in executive power – a longtime Republican tactic, for reasons described re: Nixon earlier, and broadly seen as a electoral strategy for Republicans to cloak itself as the security party for the future. Due to Bush II’s unpopularity, though, the next President was a Democrat who was able to retain these new executive powers. While acting less apparently autocratic (some argue), Obama normalized the new order and the resulting National Surveillance State.

Sometimes the water is muddied by whether a partisan goal or a policy goal is better served by constitutional hardball versus ordinary politics. For example, overturning Roe vs Wade is clearly a major goal of some part of the Republican coalition, but one could imagine that achieving this goal could turn out to be an electoral disaster; likewise, Johnson may have calculated that the reshuffling caused by the Civil Rights Act could conceivable lose the Democrats more seats than it gains in the medium term.

Thus, we need to recognize that political actors might play constitutional hardball for two reasons. First, they want to establish that the Constitution means one thing rather than another. Second, they want to stay in power and keep those who agree with them in power as long as possible. Tushnet’s basic assumption, which I think is correct, is that for most political actors, the second reason dominates the first. That does not mean that the first goal is merely a byproduct of the second. Rather, political actors sometimes fool themselves into believing that if they change the Constitution through hardball tactics, the public will reward them by keeping them in office. Sometimes that does happen, but sometimes a significant constitutional change has the opposite effect. It leads to a reaction that undermines the political forces that brought about constitutional transformation.
Constitutional Hardball and Constitutional Crises, Jack Balkin (2008)

The 2008 paper argues convincingly that we can only know if a period is transformative in hindsight. Offensive hardball especially is actually a very common political tactic during “ordinary politics” as well, as winners have the motive and opportunity to try to entrench their position.

Winners try to extend their advantages over losers, first, because they believe that they are right, and second, because they think they can. This may be the best account of the conservative movement in recent U.S. history, which, after having dominated presidential politics, repeatedly tried for the whole bag of marbles. If it eventually does transform the constitutional order, then we will look back on the period from 1980-2007 as part of a long transformative period. But if it fails, we will view this period as one of “normal politics.”

Constitutional Crises

According to Levinson and Balkin:

A constitutional crisis occurs when the constitutional system can no longer perform this important function [of “preserving political stability and making ordinary forms of democratic politics possible in order to meet the challenges of government in changing times”]. It cannot meet existing challenges, or it cannot keep people from going outside of the Constitution or outside of the normal forms of politics.

Potential outcomes:

Crisis averted, back to status quo
Change in constitutional practice and understanding
Creation of a new order

Levinson and I believe that many so-called “constitutional crises” are not real crises at all, but rather heated disagreements about the Constitution in which people fear (whether reasonably or unreasonably) that the system will spin out of control into a real constitutional crisis.

The three varieties of Constitutional Crisis:

Type 1: A political actor asserts the right to suspend features of the Constitution (or the constitutional order) due to extraordinary events. Curiously, the authors argue that this has effectively never happened in the United States, and I’m suspicious of this claim but don’t have the scholarship to argue the fine points. The authors argue that even US states that attempted nullification or secession claimed it as their constitutional right.
Type 2: Relevant political actors believe that they are complying with the Constitution, which does not empower them to address a particular crisis. The secession winter of 1860-61 is given as an example, where President Buchanon believed the secession was illegal but both he and the southern states agreed that the federal government could do nothing to stop them from leaving.
Type 3: Disagreement between political actors about who is in bounds or in violation of the Constitution, to the point that political order is stretched or transparently broken (e.g. mass civil disobedience, or the deployment of overwhelming state force). Either a compromise is made or the winner unilaterally rewrites the constitutional order. This is not exclusively the domain of constitutional hardball, since hardball can exist outside of constitutional crises.

A swipe at the current situation

In the rush of real-time narration, as history unfolds around us, it is easy to tell a story about this episode and others before it that emphasizes tit-for-tat mutual escalation and the constitutional hardball of both sides. Such stories, we submit, neglect the elephant in the room. For a quarter of a century, Republican officials have been more willing than Democratic officials to play constitutional hardball—not only or primarily on judicial nominations but across a range of spheres. Democrats have also availed themselves of hardball throughout this period, but not with the same frequency or intensity. This partisan gap is in some ways analogous to the phenomenon of “asymmetric polarization” that social scientists have documented. As we discuss below, asymmetric constitutional hardball is not simply an epiphenomenon of asymmetric polarization, although the latter is almost certainly one of the former’s causes. This Essay will suggest that the two phenomena are intertwined.
Asymmetrical Constitutional Hardball, Fishkin & Pozen

And a prediction:

Barring a fundamental realignment in the party system, we believe the now-familiar pattern of asymmetric constitutional hardball is likely to continue for the foreseeable future: While Democrats may well become more aggressive practitioners of constitutional hardball, they will not keep pace with Republicans—and this partisan difference will continue to be a pivotal feature of American constitutional government.
Asymmetrical Constitutional Hardball, Fishkin & Pozen

More from Fishkin & Pozen here. Counterargument that redistributes blame more evenly here.

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