Friday, February 01, 2019

Hardball, Again

David Pozen

Joseph Fishkin and David Pozen

Last spring, an eon ago in political time, we published an essay in the Columbia Law Review titled “Asymmetric Constitutional Hardball.”  The central claim of the essay is that over the past twenty-five years or so, an asymmetry has arisen between the two major parties in their propensity to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings.  Democrats and Republicans both do this.  But, the essay argues, Republicans lately do it more.  The essay is a deep dive into the potential causes and consequences of this asymmetry.

The Columbia Law Review is now publishing two responses to our essay, by David Bernstein and Jed Shugerman.  They come at us from opposite directions.  In “Constitutional Hardball Yes, Asymmetric Not So Much,” Bernstein argues (among other things) that there is no asymmetry.  Once one appreciates that Democrats bear as much responsibility as Republicans do for recent government shutdowns, and once one considers the unique lawlessness of the Obama Administration, the perception of partisan imbalance disappears.  In “Constitutional Hardball vs. Beanball,” Shugerman argues (among other things) that the asymmetry is even starker than our essay suggests.  Once one appreciates the fundamentally antidemocratic character of certain hardball tactics—the “beanball” kinds—used mainly by Republicans, the partisan imbalance turns out to be nothing short of terrifying.

We have just posted a draft of our reply to both Bernstein and Shugerman: “Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda.”  In a nutshell, we try to show why Bernstein’s whole approach represents a step backward for the study of constitutional hardball whereas Shugerman’s represents a step forward.  Our reply also briefly discusses some political events from the past several months, at both the federal and state levels, that tend to reinforce and illustrate the asymmetry thesis.

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