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37 J. Marshall L. Rev. 523 (2003-2004)
Constitutional Hardball

handle is hein.journals/jmlr37 and id is 543 raw text is: CONSTITUTIONAL HARDBALL MARK TUSHNET* I. INTRODUCTION: THE CONCEPT OF CONSTITUTIONAL HARDBALL, WITH SOME EXAMPLES For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order.' A shorthand sketch of constitutional hardball is this: it consists of political claims and practices-legislative and executive initiatives-that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.' It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.3 The Essay begins in this Part with some examples of constitutional hardball, followed by a description of the practice in Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. 1. For my discussion of the idea of a constitutional order, on which the analysis in this Essay builds, see MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER (2003). 2. By this I mean the go without saying assumptions that underpin working systems of constitutional government. They are hard to identify outside of times of crisis precisely because they go without saying. (An alternative term would be conventions.) These assumptions are conceptually prior to the Constitution (thus, pre-constitutional), not necessarily temporally prior. 3. For a parallel investigation, dealing however with situations in which the stakes are quite substantially higher than they have been in the United States, see Jos6 Maria Maravall, The Rule of Law as a Political Weapon, in DEMOCRACY AND THE RULE OF LAW 261 (Jos6 Maria Maravall & Adam Przeworski eds., 2003).

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