Whenever I’m looking to put the political plays of the Bush “administration” in long-term context, I point people to “Constitutional Hardball,” (PDF) a law review article written by Georgetown now Harvard Law Prof. Mark Tushnet. I think it’s a real eye-opener for those who might otherwise advocate simply waiting out the Bush gang, and “fixing” the problems they’ve created at the ballot box.
What is constitutional hardball?
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.3 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.
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3 By this I mean the “go without saying” assumptions that underpin working systems of constitutional government. They are had to identify outside times of crisis precisely because they go without saying. (An alternative term would be conventions.)
How do you know when it’s happening?
One way to distinguish periods of ordinary politics from periods of transformation is that during the former pre-constitutional understandings are taken for granted, whereas during the latter such understandings are brought into question.
And what’s really going on when it’s happening?
The idea is that the institutional arrangements characteristic of a particular constitutional order — characteristic, that is, of each specific period of ordinary politics — are the presuppositions accepted by all politically significant actors in that period, whereas the whole point of constitutional transformation is to alter the previously taken-for-granted institutional arrangements. Of course the proponents of transformation are going to place pre-constitutional understandings in question, because they want to replace those understandings with others.
How does this relate, exactly, to today’s situation? Read on after the jump.
Tushnet provides an illustrative example:
A crude example, far more crude than a full analysis would be: Prior to the New Deal, Congress initiated legislation subject to modest review by the President, whereas after the New Deal the President initiated legislation subject to modest review by Congress. And, during the transformative period when Franklin D. Roosevelt was attempting to construct a new constitutional order, his efforts to seize the legislative initiative were understood to be challenges to settled pre-constitutional understandings about the relation between President and Congress — and, as such, revolutionary.
Tushnet’s article dates from 2003. How might we illustrate the concept of constitutional hardball today? Would we conclude that the Bush “administration’s” assertion of broad, unconstrained executive power — including the power to abrogate federal law (like FISA) — constitutes an example? How about this “administration’s” understanding and use of signing statements, no longer used merely as markers denoting the President’s position on matters of constitutional law, but rather as policy directives to the entirety of the executive branch as to how to interpret and execute the law? The novel concept, driven by Tom DeLay (with Jack Abramoff’s money), that Republican-controlled states could and should redraw their Congressional districts in between the accepted ten year intervals, purely for partisan advantage? The application of political litmus testing to the appointment of U.S. Attorneys? The White House’s assertion that its senior officials are not subject to the subpoena power of the Congress?
Or perhaps the Military Commissions (read: Torture) Act?
Political actors can play constitutional hardball with substantive principles. Proponents of a constitutional transformation will propose legislation that pushes the envelope of existing constitutional doctrine. The proposed statutes will not be obviously unconstitutional, because constitutional hardball consists of actions that are plausibly defensible under existing constitutional doctrine. But, they will signal that their proponents have a substantially different understanding of government’s role than had seemed settled. And, importantly, the proposals, if enacted, might have the effect of enhancing the political strength of the coalition seeking to change the constitutional order.
So what does it look like to lose a “game” of constitutional hardball?
The high-stakes characteristic of constitutional hardball shows that hardball is an element of the more general phenomenon Jack Balkin and Sanford Levinson identified as partisan entrenchment. According to Balkin and Levinson, large-scale changes in deep institutional arrangements occur through a process of partisan entrenchment.
Balkin and Levinson focus on partisan entrenchment in the courts. “When a party wins the White House, it can stock the federal judiciary with members of its own party, assuming a relatively acquiescent Senate.” In doing so, the president extends his party’s policy positions, and its positions on the meaning of the Constitution, over a much longer period than his own presidency. And, once the judges are in place, “they start to change the understandings of the Constitution that appear in positive law.” For Balkin and Levinson, partisan entrenchment means that “[p]arties who control the presidency install jurists of their liking — given whatever counterweight the Senate provides.”
The process of partisan entrenchment should, I believe, be understood more broadly than Balkin and Levinson’s initial presentation. The full process of partisan entrenchment has several stages, in which control of the courts in only one phase. First, proponents of a particular set of arrangements gain control over one component of the government. They then use that control to devise mechanisms that ensure their continued control of that component. For example, they might develop ways of implementing civil service regulations, intended to eliminate eliminating partisan influence on the lower levels of the bureaucracy, so that lower-level bureaucrats are in fact committed to a particular partisan program.
U.S. Attorneys replaced — without Senate advice and consent — according to partisan litmus tests?
Or, perhaps more important, they set their substantive legislative or executive agenda to attract strong support from some, and to demobilize their opponents.
Huge and lopsided tax cuts for the “base?” The enormous shift of federal grant resources from community-based to “faith-based” organizations?
Further, those who control one component of the government try to leverage that control into taking control of other components.
Mid-census, partisan redistricting plans approved by Justice Department political operatives despite unanimous opposition from career civil servants in the Voting Rights section? Federal and local law enforcement using “enhanced powers” of surveillance to infiltrate and undermine opposition activists? The use of highly politicized U.S. Attorneys’ Offices to strategically prosecute local Democrats?
And what are the stakes involved in losing such a “game?”
The stakes are high when politicians play political hardball, that is, because the politicians believe that the winners might end up with permanent control (meaning, control for the full time-horizon of today’s politicians) of the entire government. The winner of constitutional hardball takes everything, and the loser loses everything.
Pretty serious, wouldn’t you say? And yet, it is precisely the Serious People — that is, the political punditry and the forgers of the Conventional Wisdom — who counsel us to ignore the dynamics of constitutional hardball, to seek the “middle ground,” and prize the art of “bipartisan compromise.” What might be the result of such an asymmetrical response? Tushnet answers:
I suspect that most readers are likely to think that there is something distasteful about constitutional hardball as a process. After all, playing for keeps in politics is, it might be thought, a recipe for social disaster, leading at the extreme to genocide and annihilation of the enemy. Even short of that, constitutional hardball might lead to unpleasant personal relations among politically active people. And, as L. Michael Seidman has emphasized, playing for keeps might be wrong just because it fails to acknowledge the possibility that one’s political-constitutional opponents might actually be right about the Constitution — a possibility that, according to Seidman, is ever-present.
Note, though, that some of these normative questions are not about constitutional hardball itself, but are about what happens when someone wins the game. Consider, for example, the sheer distastefulness of constitutional hardball. That problem could be eliminated after constitutional transformation occurs — after, that is, we emerge from the tunnel into the new constitutional order. Then, the politicians having control of the government can revert to ordinary constitutional politics, and their opponents can, like Eisenhower and Nixon in 1960, play the game on the winners’ terms, hoping to pick up a victory or two themselves. If our normative misgivings are founded in simple distaste for constitutional hardball, exacerbated by the fact that politicians have been playing it for more than twenty years now, we can take solace in the possibility that someday the Republicans might win.
So, what do you say, folks? Shall we bide our time and rely on the courts to fix it all for us? Will oversight and exposure of the Nixon/Bush doctrine be enough? Will Americans finally and miraculously simply awaken to the realities of constitutional transformation? Did the Clinton impeachment really make us so afraid of the process itself that it should be considered unavailable to us in combating the constitutional-level game undertaken by Republicans? Is this really something we can actually debate our way out of? Can we really afford to head into 2008 under the banner of “bipartisan cooperation?”