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26 QLR 579 (2007-2008)
Constitutional Hardball and Constitutional Crises

handle is hein.journals/qlr26 and id is 589 raw text is: CONSTITUTIONAL HARDBALL AND CONSTITUTIONAL CRISES Jack M. Balkin* INTRODUCTION This is the second time I have had the pleasure of honoring Mark Tushnet's life and work. In this Essay, as in the previous one I wrote with Sandy Levinson,' I will focus on a theme that is central to both Tushnet's work and mine. I call it 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. Historicists assume that legal materials and the internal conventions of legal argument are not infinitely malleable and, at any point in time, are genuinely constraining on practitioners of legal argument. Nevertheless, they are sufficiently flexible to allow law to become an important site for political and social struggle. Indeed, these legal materials and conventions of legal argument are themselves gradually changing in response to the political and social struggles that are waged through them. As a result, the internal norms of good legal argument are a moving target; they are constantly in the process of changing in response to political, social, and historical forces in ways that norms of legal reasoning do not always directly acknowledge. Anyone who is a constitutional historicist must be interested in the processes of constitutional change. And so Tushnet is; he has offered an interesting theory of constitutional orders, and within that theory, a very useful concept of how political actors move from one constitutional order to a new one. He calls it constitutional hardball.2 The purpose of this Essay is to discuss Tushnet's account of constitutional hardball * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. 1. Jack M. Balkin & Sanford Levinson, Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore, 90 GEO. L.J. 173 (2001). 2. Mark Tushnet, Constitutional Hardball, 37 J. MARSHALL L. REV. 523 (2004).

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