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.