Forthcoming, Cambridge Handbook of ConstitutionalThoery (J. King & R.Bellamy eds.)
Harvard Public Law Working Paper No. 21-37
MARK TUSHNET, Harvard Law School
Email: mtushnet@law.harvard.edu
After defining the term constitutional hardball and examining how political actors defend specific examples of constitutional hardball, this Chapter examines why political actors engage in hardball, focusing first on their short-term political motivations and then turning to the function of constitutional hardball within reasonably well-functioning constitutional democracies. After examining how political actors defend hardball practices, it offers a “regime-centered” analysis, arguing that constitutional hardball is a signal of proposed or impending constitutional change, and the change might be for the better rather than for the worse. The Chapter ends with a discussion of what might be done to convert constitutional hardball into ordinary political maneuvering, concluding that such efforts are unlikely to succeed and might be inappropriate (though not illiberal) efforts to halt more or less ordinary transformations in political practices
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