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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
Jack M. Balkin*
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
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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