Daily Kos: Reading and Discussion: Constitutional Hardball

by Kagro X

Sun Apr 08, 2007 at 03:44:50 PM PDT

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.