ASYMMETRIC CONSTITUTIONAL HARDBALL

• Published in: Columbia law review Vol. 118; no. 3; pp. 915 - 982
• Main Authors: Fishkin, Joseph, Pozen, David E.
• Format: Journal Article
• Language: English
• Published: New York Columbia Law School 01.04.2018; Columbia Law Review Association, Inc
• Subjects: Asymmetry; Attorneys; Coalitions; Conservatism; Constitutional conventions; Constitutional law; CONSTITUTIONS; COSTS; Court hearings & proceedings; Elections; ESSAY; Evaluation; Filibusters; Governance; Government shutdowns; Influence; Integrity; Intellectuals; Judges & magistrates; Judicial appointments; JUDICIAL REVIEW; Judicial reviews; Left wing politics; Legislatures; Liberalism; Morality; Narratives; National debt; Nominations; Polarization; Polarization (Social sciences); Political conventions; POLITICAL PARTIES; Political partisanship; Politicians; Politics; POLITICS AND GOVERNMENT; Presidents; Realignment; Right wing politics; Senators; U.S. states; United States Senate; Voting; UNITED STATES
• ISSN: 0010-1958; 1945-2268

Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity. After defining constitutional hardball and defending this descriptive claim, this Essay offers several overlapping explanations. Asymmetric constitutional hardball grows out of historically conditioned differences between the parties’ electoral coalitions, mediating institutions, views of government, and views of the Constitution itself. The “restorationist” constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party’s use of constitutional hardball. Finally, and more tentatively, this Essay looks to the future. In reaction to President Trump, congressional Democrats have begun to play constitutional hardball more aggressively. Will they close the gap? Absent a fundamental political realignment, we submit that there are good structural and ideological reasons to expect the two parties to revert to the asymmetric pattern of the past twenty-five years. If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.