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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.

The Essay begins in this Part with some examples of constitutional hardball, followed by a description of the practice in more general terms. Part II develops the connection, asserted in this Part, between constitutional hardball and changes in fundamental constitutional arrangements or, in my own terms, constitutional orders. Part III then describes the events surrounding Marbury v. Madison as an episode of constitutional hardball. Part IV offers further elaborations of the concept, emphasizing in particular the ways in which constitutional hardball can fail and defending the concept against the charge that it does not in fact single out a practice that is different from ordinary constitutional politics. Finally, Part V provides some modest normative reflections on constitutional hardball.

Publication Citation

37 J. Marshall L. Rev. 523-553 (2004)