Hardball, Again

Joseph Fishkin as well as David Pozen

Last spring, an eon agone inwards political time, nosotros published an essay inwards the Columbia Law Review titled “Asymmetric Constitutional Hardball.”  The key claim of the essay is that over the yesteryear twenty-five years or so, an asymmetry has arisen betwixt the ii major parties inwards their propensity to force the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings.  Democrats as well as Republicans both produce this.  But, the essay argues, Republicans lately produce it more.  The essay is a deep dive into the potential causes as well as consequences of this asymmetry.

The Columbia Law Review is right away publishing ii responses to our essay, yesteryear David Bernstein as well as Jed Shugerman.  They come upward at us from contrary directions.  In “Constitutional Hardball Yes, Asymmetric Not So Much,” Bernstein argues (among other things) that at that topographic point is no asymmetry.  Once 1 appreciates that Democrats acquit every bit much responsibleness every bit Republicans produce for recent authorities shutdowns, as well as 1 time 1 considers the unique lawlessness of the Obama Administration, the perception of partisan imbalance disappears.  In “Constitutional Hardball vs. Beanball,” Shugerman argues (among other things) that the asymmetry is fifty-fifty starker than our essay suggests.  Once 1 appreciates the fundamentally antidemocratic graphic symbol of sure enough hardball tactics—the “beanball” kinds—used mainly yesteryear Republicans, the partisan imbalance turns out to move zip curt of terrifying.

We accept merely posted a draft of our response to both Bernstein as well as Shugerman: “Evaluating Constitutional Hardball: Two Fallacies as well as a Research Agenda.”  In a nutshell, nosotros attempt to demo why Bernstein’s whole approach represents a mensuration backward for the written report of constitutional hardball whereas Shugerman’s represents a mensuration forward.  Our reply likewise briefly discusses around political events from the yesteryear several months, at both the federal as well as nation levels, that tend to reinforce as well as illustrate the asymmetry thesis.