Constitutional hardball

Constitutional hardball is the exploitation of procedures, laws and institutions by political actors for partisan gain in ways which violate pre-established norms and push the bounds of legality.[1][2] Legal scholars and political scientists have characterized constitutional hardball as a threat to democracy, because it undermines shared understanding of democratic norms and undermines the expectation that the other side will comply with democratic norms. As a result, the use of constitutional hardball by one side of partisans encourages other partisans to respond in similar fashion.[3][4][2]

The concept stems from a 2004 article by Mark Tushnet of Harvard Law School.[5][6] Harvard University political scientists Daniel Ziblatt and Steven Levitsky have argued that democracies such as Argentina and Venezuela shifted to authoritarianism in part through constitutional hardball, as Juan Perón and Hugo Chavez used legal court-packing schemes to cement power.[7]

In the United States

Examples of constitutional hardball include the use of the debt ceiling to force others to agree to one's demands (hostage-taking), disenfranchising voters for the opposing party (voter suppression), routine use of the filibuster, routine refusal of appointments, court-packing,[8] actions by lame-duck administrations and legislatures to curb the powers of incoming legislators and administrations, using pardoning powers on oneself or one's associates, and refusal to commit to the peaceful transition of power.[4][1][2][9][10][7][11][12]

David Pozen, Professor of Law at Columbia Law School, wrote in 2018 that "the concept of constitutional hardball seemed to be passing into common usage" in the United States.[11]

It has been suggested that the use of constitutional hardball in the United States Congress has strengthened the role of the executive in policy-making, as the President becomes more likely to use the powers of office to circumvent the legislature; Obama's use of executive orders is mentioned as an example of constitutional hardball.[4][13] In the 1990's, House Speaker Newt Gingrich's use of "asymmetric constitutional hardball" led to increasing polarization in American politics driven primarily by the Republican Party.[14][15][16]

See also

• Democratic backsliding

References

1. Pierson, Paul; Hacker, Jacob S.; Persily, Nathaniel, Editor (2015). Confronting Asymmetric Polarization. Cambridge University Press. pp. 59–70. doi:10.1017/cbo9781316091906.003. ISBN 9781107087118. Retrieved January 6, 2019. {{cite book}}: |first3= has generic name (help); |website= ignored (help)
2. Levitsky, Steven; Ziblatt, Daniel (2018). "How Democracies Die". Penguin Publishing Random house.
3. Bernstein, Jonathan (December 4, 2018). "Constitutional Hardball Is Back. Look Out". Bloomberg.
4. Valelly, Rick (2018-04-08). "Trump Meets Political Science". Washington Monthly. Vol. April/May/June 2018. ISSN 0043-0633. Retrieved January 7, 2019.
5. Tushnet, Mark V. (2004) Constitutional Hardball, PDF 37 J. Marshall L. Rev. 523-553 John Marshall School of Law
6. Glassman, Matt (December 11, 2018). "Republicans in Wisconsin and Michigan want to weaken incoming Democratic governors. Here's what's the usual partisan politics — and what isn't". The Washington Post. Retrieved January 16, 2019.
7. Levitsky, Steven; Ziblatt, Daniel (January 27, 2018). "How Wobbly Is Our Democracy?". The New York Times. ISSN 0362-4331. Retrieved January 7, 2019.
8. Lemieux, Scott (May 2018). "Democrats: Prepare to Pack the Supreme Court". The New Republic. Retrieved January 13, 2019.
9. Matthews, Dylan (July 2, 2018). "Court-packing, Democrats' nuclear option for the Supreme Court, explained". Vox. Retrieved January 7, 2019.
10. Melber, Ari. "What happens when losers of elections won't relinquish power?". The Washington Post.
11. Pozen, David (October 11, 2018). "Hardball and/as Anti-Hardball". Lawfare. Retrieved January 7, 2019.
12. "Democracy's Undemocratic Transition of Power". Brown Political Review. 2020-12-10. Retrieved 2020-12-10.
13. Yglesias, Matt (October 8, 2015). "American democracy is doomed". Vox. Retrieved January 19, 2019.
14. McCoy, Jennifer L.; Somer, Murat (November 29, 2021). "Political Parties, Elections, and Pernicious Polarization in the Rise of Illiberalism". In Sajó, András; Uitz, Renáta; Holmes, Stephen (eds.). Routledge Handbook of Illiberalism (1 ed.). New York: Routledge. pp. 486–499. doi:10.4324/9780367260569. ISBN 9781000479454. Retrieved November 11, 2024. p. 497: However, during the 1980s the rise of powerful and entrepreneurial politicians such as Newt Gingrich within the Republican Party, who promised to strengthen the party, were instrumental in the radicalization of this party's strategies in the US. These strategies helped the party win control of the House in 1994 after being in the minority in 58 of the prior 62 years (Mettler and Lieberman 2020), but also contributed to the growing polarization of US politics.
15. Lovett, Adam (November 7, 2022). "The ethics of asymmetric politics". Politics, Philosophy & Economics. 22 (1): 3–30. doi:10.1177/1470594X221133445. ISSN 1470-594X. Archived from the original on November 11, 2024. Retrieved November 11, 2024. In the 1990s, the Republican Party went off the deep end. At a first and very rough approximation, we can pin the blame on Newt Gingrich. Gingrich had been elected to the House of Representatives in 1978. The problem with the Republican Party at the time, he said, was 'that we don't encourage you to be nasty'.
16. Fishkin, Joseph; Pozen, David E. (April 2018). "Asymmetric Constitutional Hardball". Columbia Law Review. 118 (3): 915–982. ISSN 0010-1958. JSTOR 26397699. Retrieved November 10, 2024. The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left.