E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.