Donald Trump recently became the first President since James Garfield in 1881 to take office with a vacant Supreme Court seat to fill.
Political struggle, as much as luck, produced this result. The vacancy arose more than eleven months prior to President Trump’s inauguration. After President Obama submitted a “consensus nominee”
on March 16, 2016, Senate Republicans refused to give the nominee a hearing. They resolved to block anyone selected by President Obama from filling the seat. They also suggested that more was to come. As election day approached, one prominent Republican Senator “promise[d]” that his Republican colleagues would likewise “be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”
The arguably unprecedented blockade of the Merrick Garland nomination
stands as a classic example of constitutional hardball.
The Democrats’ response to this highly salient and consequential act of constitutional hardball was comparatively muted. President Obama did not choose to raise the stakes. He did not, for instance, threaten to install Judge Garland on the Court on a theory of implied or forfeited Senate consent, as some commentators urged as early as April 2016.
Nor did he give Garland a recess appointment.
Following President Trump’s election, Senate Democrats, under heavy pressure from progressive groups,
engaged in a bit of constitutional hardball of their own. They used the filibuster to block President Trump’s nominee, then-Judge Neil Gorsuch, for the seat Judge Garland had been denied.
Senate Republicans swiftly responded by exercising the “nuclear option” to change cameral rules so that a Supreme Court nominee no longer needs more than a simple majority vote.
In the rush of real-time narration, as history unfolds around us, it is easy to tell a story about this episode and others before it that emphasizes tit-for-tat mutual escalation and the constitutional hardball of both sides. Such stories, we submit, neglect the elephant in the room. For a quarter of a century, Republican officials have been more willing than Democratic officials to play constitutional hardball—not only or primarily on judicial nominations but across a range of spheres. Democrats have also availed themselves of hardball throughout this period, but not with the same frequency or intensity. This partisan gap is in some ways analogous to the phenomenon of “asymmetric polarization” that social scientists have documented.
This Essay will suggest that the two phenomena are intertwined.
The small-c constitution
now finds itself at a crossroads. As the filibuster of Justice Gorsuch demonstrates, we are at a liminal moment in political time, in which Democratic Party leaders are showing a new appetite for playing constitutional hardball in response to President Trump. Will they close the hardball gap with their Republican counterparts in the months and years ahead? And would it be a good thing if they did?
The answer to such questions may be clouded temporarily by the political and constitutional turmoil wrought by the Trump Administration, which has put some unusual cross-pressures on congressional Republicans. We hazard no guess here about when a post-Trump political order will arrive or exactly what shape it will take. But our account of recent constitutional history leads us to offer one important prediction. Barring a fundamental realignment in the party system, we believe the now-familiar pattern of asymmetric constitutional hardball is likely to continue for the foreseeable future: While Democrats may well become more aggressive practitioners of constitutional hardball,
they will not keep pace with Republicans—and this partisan difference will continue to be a pivotal feature of American constitutional government.
This might seem like a reckless prediction to make at a moment when so much is in flux. But this Essay will document a number of longer-term dynamics that seem poised to perpetuate the divide.
To come to grips with the constitutional period the country has just lived through, and also with the new one it may be entering, we need to understand better both the causes and the consequences of asymmetric constitutional hardball.
I. Constitutional Hardball and Constitutional Conventions
Professor Mark Tushnet has defined constitutional hardball as “political claims and practices . . . 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.”
Constitutional hardball tactics are viewed by the other side as provocative and unfair because they flout “the ‘go without saying’ assumptions that underpin working systems of constitutional government.”
Such tactics do not generally flout binding legal norms. But that only heightens the sense of foul play insofar as it insulates acts of hardball from judicial review.
Although Tushnet allows for the possibility of judicial constitutional hardball,
his account focuses on legislative and executive actors, and the most straightforward cases of hardball often occur in legislatures. Legislative bodies teem with rules and norms, not expressly required by constitution or statute, that govern the interactions among political blocs within the institution. Tushnet’s original examples of constitutional hardball include the impeachment of President Clinton, the 2002-to-2003 Democratic filibusters of judicial nominations by President Bush, and the 2003 efforts of Republican representatives in Colorado and Texas to push through mid-decade redistricting plans.
The recent blockade of Judge Garland fits Tushnet’s model nicely, as there is a longstanding custom, but no clear-cut legal obligation, that the Senate provides timely advice and consent on Supreme Court nominations.
In what sense are these examples of constitutional hardball, rather than simply political hardball? We believe that the use of “forceful uncompromising methods”
by government actors can qualify as constitutional hardball in one of two basic ways. The first involves what some call constitutional conventions.
Constitutional conventions are “unwritten norms of government practice” that emerge in a decentralized fashion and “are regularly followed out of a sense of obligation but are not directly enforceable in court.”
Whatever explains their existence, constitutional conventions may foster consistency, coordination, and comity in governance by prescribing “the way in which legal powers shall be exercised” by high-level officials.
They fill in the gaps of adjudicated structural constitutional law.
A political maneuver can amount to constitutional hardball when it violates or strains constitutional conventions for partisan ends.
In other words, if all forms of hardball are marked by “questionable, qualm-producing means,”
when the means are seen as questionable and qualm-producing because they disrupt an especially respected or resilient interbranch or interparty practice, now we are talking about constitutional hardball. Uncompromising methods that do not disrupt the “machinery of government,”
by contrast, lack this small-c constitutional dimension. Although necessarily fuzzy at the edges, this formulation clarifies the ambiguous phrase “pre-constitutional understandings” in Tushnet’s definition. This formulation also highlights something distinctively constitutional about constitutional hardball tactics: They put pressure on the “norms of good institutional citizenship” that help to structure and “sustain the constitutional system.”
Given that constitutional conventions are thought to serve this systemic function, acts of hardball that subvert them are experienced by officials and observers on the other side as breaches of “constitutional morality,”
not merely as breaches of political etiquette. When the Republican-controlled Congress shut down the executive branch in 1995 and 1996 to gain leverage over President Clinton in budget negotiations, or when Senate Democrats started holding pro forma “gavel-in, gavel-out” sessions in 2007 to block President Bush’s recess appointments, many believed these tactics were legally permissible yet nevertheless constitutionally worrisome in some deep sense.
Both tactics are fairly classed as constitutional hardball because both violated or strained constitutional conventions for partisan ends.
The second way in which a political maneuver can amount to constitutional hardball is more direct: if it is reasonably viewed by the other side as attempting to shift settled understandings of the Constitution in an unusually aggressive or self-entrenching manner. Put differently, constitutional hardball can involve efforts to change big-C constitutional law that are themselves seen as violations of small-c constitutional norms regarding how such changes may legitimately be made. This category, too, is necessarily fuzzy around the edges. At any given time, a variety of actors may be trying to nudge constitutional interpretations and constructions in their preferred direction through a variety of means, such as bringing strategic lawsuits or introducing legislation that tests existing legal boundaries. These are standard moves in our constitutional politics and, without more, they are not constitutional hardball.
But sometimes, one side tries to do something bolder: to take a substantive position that was up until that moment “off the wall”
and turn it into constitutional law in a more abrupt and self-serving fashion, without the extended period of public argumentation and mobilization and the incremental advances that typically enable such transformations. In such a situation, members of the other side are apt to protest that their adversaries have pressed some handy institutional advantage—such as five votes on the Supreme Court or control of the executive branch—to rewrite the constitutional rules in their favor.
Many liberals viewed the early litigation against the Affordable Care Act (ACA) as an instance of constitutional hardball not because there was anything unusual or untoward about the formal tactic involved (filing a lawsuit), but rather because the litigation aimed to destroy the Act by creating an activity–inactivity distinction that they saw as having no basis in modern Commerce Clause doctrine.
The embrace of this formerly off-the-wall argument by conservative litigants and judges, from the liberals’ perspective, represented an exercise of raw partisan power to change constitutional law. Many liberals saw the Supreme Court’s reliance on a novel, case-specific theory of equal protection in Bush v. Gore
in similar terms.
For their part, many conservatives characterized various initiatives of the Obama Administration that were not clearly reviewable in court when they were undertaken—most notably, its “deferred action” programs for millions of unlawfully present immigrants—as constitutional hardball of this sort. Instead of waiting for a legislative overhaul, the Administration’s programs enacted what critics argued was an unprecedented expansion of executive enforcement discretion.
It is this sense of a radical, and opportunistic, departure from shared constitutional understandings that defines this second variant of constitutional hardball.
What connects these two forms of hardball—tactics that defy constitutional conventions and efforts to achieve especially aggressive or self-entrenching forms of constitutional change—is that they break the perceived rules of normal constitutional politics. They may reflect a sincerely held, long-term vision of a good constitutional order, as with libertarian arguments for the activity–inactivity distinction. Or they may seek a one-time victory with a powerful political effect, as with the equal protection argument in Bush v. Gore.
Either way, these maneuvers elicit in their opponents a feeling that constitutional institutions or ideas have been instrumentalized for partisan gain, that there has been a process breakdown, that they have “been had.” Recognizing such behaviors as constitutional hardball is not to deny their fundamentally political character, but rather to illuminate the nature of the stakes and the norms involved. And recognizing such behaviors as hardball is not to suggest they are inherently bad. While all acts of constitutional hardball create systemic risks, as Part III will discuss,
specific acts may be justified for a variety of contextual normative reasons; sound political judgment might even require that certain types of hardball be played in certain situations.
Many Beltway behaviors are contentious or obnoxious without being constitutional hardball. Rhetorical attacks on the other side will rarely disrupt the machinery of government or effect dramatic constitutional change.
So too with most policy proposals and programs. The Obama Administration’s national security surveillance activities, for example, certainly became controversial, and some of them may have even been unlawful. But they did not generate charges of unfair dealing or upend the rules of the policy game.
Although our definition for the most part builds on and refines Tushnet’s, it differs from his in that it does not limit constitutional hardball to periods of large-scale constitutional transformation.
While constitutional hardball may be more likely to occur “when one side sees an opportunity to shift the constitutional order,” we agree with Professor Jack Balkin that the phenomenon is more general.
In any event, Tushnet maintains that the United States has been undergoing an “extended period of constitutional transformation” since around 1980,
and no one seems to deny that we have been living with substantial amounts of constitutional hardball for decades now. At this point, it is the only world our politicians know.
II. Partisan Patterns (and Perceptions) of Constitutional Hardball
Because acts of constitutional hardball are seen as provocative and high-stakes, they tend to invite a response. Often this response involves another act of constitutional hardball. And just as in the schoolyard, the question of who started it arises and becomes part of the dispute itself. Typically, Tushnet writes, “each side contends that the other breached the relevant implicit understandings”—or constitutional conventions—“first.”
“The prior breach then is said to have destroyed the implicit understandings already, thereby taking the sting out of the charge that one is breaching taken-for-granted norms.”
In his account of this dynamic, Tushnet seems to suggest that a rough sort of symmetry, or parity, characterizes the partisan practice of constitutional hardball. Whichever side resorts to hardball, the other side will follow suit in a predictable sequence of tit-for-tat.
Following Tushnet, other legal scholars have suggested the same.
We agree that constitutional hardball lends itself to retaliation and escalation—and that both Democratic and Republican officeholders engage in it to some substantial extent.
Yet even if constitutional hardball is by nature reciprocal, it nonetheless remains possible that one side may play hardball more frequently or intensively than the other side over a sustained period of time. This is what we submit has happened for the past quarter century or so, since roughly the Gingrich Revolution
of the mid-1990s.
Constitutional hardball remains reciprocal but not symmetrical. One party, the Republican Party, has become especially identified with hardball tactics during this period, with large consequences for our constitutional system.
A. Methodological Challenges
We acknowledge at the outset that studying this potential asymmetry poses a considerable challenge. Because of the reciprocal character of constitutional hardball and the open texture of constitutional norms, both sides will frequently have a nonfrivolous claim to be responding to a transgression or provocation by the other side. And given the partisan overlay, perceptions among Democrats that Republicans play more constitutional hardball, or harder hardball, are almost inevitably going to be colored by “partyism,”
confirmation bias, myside bias, or the like. The same goes for us. Like Tushnet, we are keenly aware that our own political location may make us “more attuned to examples of hardball practices [we] see on the right.”
Further complicating matters, the structure of constitutional hardball itself confounds objective measurement. By definition, constitutional hardball consists of counter-conventional behaviors and efforts at constitutional change that may take any number of forms across any number of institutional and substantive domains—and that are therefore hard to count and compare. An interpretive judgment is always required to establish that a political maneuver amounts to constitutional hardball, because one must first determine what the relevant constitutional traditions and settled understandings are, at what level of generality to assess the historical record, and whether and to what extent the maneuver deviates from them. These judgments as to what is conventional or unconventional, norm-abiding or norm-defying, are to some extent endogenous to constitutional practice. There is no Archimedean point from which we, as observers of politics, can stand outside politics and be completely confident in the accuracy of our assessments.
In light of these challenges, one might be tempted to conclude that it is simply impossible to investigate the symmetry or asymmetry of constitutional hardball in a credible or useful manner, at least beyond certain discrete patches of government activity.
We think this conclusion cannot be right. For one thing, it proves too much. Many different public law practices have long been inflected with partisanship. It would be perverse to exempt some or all of them from scholarly inquiry on that basis. Moreover, the phenomenon of asymmetric constitutional hardball—if it exists—would be an extremely significant feature of American constitutional politics, with potential causes and effects too important for constitutional theorists to ignore.
Given its inherently contested and shape-shifting nature, we know of no good way to reduce the overall practice of constitutional hardball to a numerical scale, no scientific test to measure or code it.
And we suspect that such scales and tests, if devised, would be vulnerable to the biases and value choices of the politically aware humans who create them. In an exploratory Essay like this, we believe it is appropriate to take a more encompassing, qualitative approach. As a first cut, our basic strategy is to scour the legal, political science, and popular literatures on constitutional conflict in the political branches; to identify behaviors that plausibly satisfy the definition of constitutional hardball given in Part I; and to relate these examples to the growing bodies of research on partisan polarization, party organization, and the Constitution outside the courts. There are a number of specific domains of constitutional hardball (such as debt ceiling brinkmanship and restrictions on voting) within which the Republican–Democratic discrepancy seems plain, other domains (such as Senate obstruction of circuit court nominations) where the balance is more even. Taken together, however, the evidence suggests that constitutional hardball has been plausibly asymmetric for a quarter century. Laying out this evidence is the work of the rest of this Part.
B. Motivating Observations
What leads us to suspect that constitutional hardball has become asymmetric? The next section and Part III will consider numerous forms of indirect evidence. But the most immediate reason for suspecting as much is this: The recent historical record appears to contain more, and more distinctive, examples of constitutional hardball on the Republican side. Meanwhile, a perception of partisan asymmetry has emerged.
While this would be notable regardless of the reality, the perception has an empirical basis.
Our focus here is on the period from the mid-1990s through the end of the Obama Administration. Republicans and Democrats both controlled the presidency and each house of Congress for parts of this period. Partisan conflict was a near-constant, and President Trump had not yet brought his openly norm-shattering approach to the White House. There is no obvious a priori reason why one side would have become more identified with constitutional hardball than the other.
And yet that is what happened. The literature on constitutional conflict in the political branches has identified an impressive array of examples from this period that arguably qualify as constitutional hardball on the Republican side. A partial catalog from the pre-Obama years
might include the government shutdowns of 1995 and 1996;
Newt Gingrich’s efforts in that same Congress to consolidate power in the Speaker’s office and “dismantle” congressional institutions with professional staff;
the impeachment of President Clinton in 1998;
the 1,052 subpoenas issued by Dan Burton, then-Chair of the House Oversight and Government Reform Committee, to the Clinton Administration and other Democratic targets from 1997 to 2002;
a range of techniques used in Florida to restrict access to voting during the 2000 presidential election,
which inspired Republican regulators nationwide and opened up a new front in what some now call the “voting wars”;
various tactical moves by the Bush side in the Bush v. Gore litigation and the ensuing Supreme Court decision;
the firing of the Senate Parliamentarian in 2001;
the exclusion of congressional Democrats from conference committee deliberations
and the turn toward “closed” rules for bills on the House floor from 2001 to 2006;
the mid-decade redistricting plans developed in Colorado, Georgia, and Texas after the 2002 elections,
followed by the broader and more systematic partisan redistricting initiative known as REDMAP;
and the “seemingly endless” ways in which the Bush Administration “pushed the legal envelope” following 9/11 in its interactions with the other branches, from increased reliance on presidential signing statements to withholding information from congressional oversight bodies to aggressive interpretations and applications of the commander-in-chief power.
During the Obama Administration, Republican constitutional hardball further escalated—and, in the Senate, became programmatic. Committed self-consciously to a stance of “united and unyielding opposition,”
Republicans used filibusters and “holds” to block legislation and nominations on an unprecedented scale;
threatened repeatedly to default on the national debt;
“employed a battery of unorthodox procedural maneuvers,” including a government shutdown, “in a campaign to defund ‘Obamacare’”;
and refused to permit any appointments to leadership posts at the Consumer Financial Protection Bureau (CFPB) or the National Labor Relations Board (NLRB).
Senate Republicans’ stonewalling of the Garland nomination thus represented the culmination of a long line of convention-straining, yet not clearly law-violating, obstructionist maneuvers. “From its very first months,” journalist Matthew Yglesias opined in 2015, “Obama’s presidency has been marked by essentially nothing but constitutional hardball.”
To be sure, Democratic officeholders have also resorted to constitutional hardball numerous times since the mid-1990s—and many more times before then, perhaps most notably during the New Deal.
Hardball in the 1930s may well have had a partisan skew opposite to the one described in this Essay. More recently, the 1987 Senate campaign against Judge Robert Bork’s Supreme Court nomination was an important example of constitutional hardball; many observers, especially conservatives, viewed it at the time as an unprecedented escalation of the political battles over judicial appointments.
A historical study with a longer time horizon might reveal that asymmetric constitutional hardball has an epicyclical character in the American system, with the party that feels it was on the losing end of prior periods of hardball becoming the dominant hardball player in subsequent periods.
Over the past twenty-five years, arguable examples of Democratic constitutional hardball include the Clinton Administration’s increasingly controversial assertions of executive privilege from 1995 to 1999,
the repeated filibusters of President Bush’s first-term circuit court nominations,
and the use of pro forma sessions to block President Bush’s recess appointments in 2007 and 2008.
More recently, the Obama Administration and its congressional allies made a variety of moves that might be classified as constitutional hardball, from using the reconciliation process to amend the ACA without a supermajority vote,
to “repeatedly test[ing] the limits of executive authority in implementing the ACA,”
to making recess appointments to the CFPB and NLRB when Senate Republicans were holding pro forma sessions,
to eliminating the filibuster for non–Supreme Court nominees,
to announcing initiatives that would defer the deportation of large categories of unauthorized immigrants in the absence of legislative reform.
Republican officeholders clearly have no monopoly on constitutional hardball.
They appear to have a dominant market position, however. Especially within Congress, plausible examples of Democratic constitutional hardball in recent decades are harder to find. And intriguingly, when Democrats have played hardball, they have been more diffident and apologetic about it. During the Clinton and Bush years, Balkin has argued, Democratic constitutional hardball largely arose out of, and responded to, “the Republican Party’s desire to cement a lasting conservative political order.”
President Obama’s most controversial maneuvers were framed and defended as regrettable yet necessary acts of “self-help” in the face of extraordinary partisan obstruction.
Republican constitutional hardball, it seems, has been not only more common in practice since the mid-1990s but also more confident in justification.
In line with these observations, a rough consensus has emerged among analysts of Washington politics that Republicans have a decided edge in constitutional hardball. Political scientist Jonathan Bernstein wrote in 2012, for instance, that “the party that’s been [playing constitutional hardball] over the last 20 years . . . is the Republican Party.”
“[T]he most distinctive and damaging feature of Republicans’ right turn,” according to Professors Jacob Hacker and Paul Pierson, “is that they have steadily ramped up the scale, intensity, and sophistication of their attacks on government and the party most closely associated with it” through constitutional hardball tactics.
Thomas Mann and Norman Ornstein describe the contemporary Republican Party as an “insurgent outlier in American politics” that displays “disdain for negotiation and compromise” and has embraced “cynical and destructive means to advance political ends.”
Liberal pundits routinely echo these sentiments—remarking with envy as well as dismay that Republicans have “perfect[ed] constitutional hardball”
and “become past masters of the art,”
leaving Democrats “on the receiving end of constitutional hardball for more than two decades.”
We do not doubt that some conservative pundits would dispute these claims. Yet whereas allegations that Republicans play more constitutional hardball have become commonplace on the left, it is hard to find any published commentary that alleges the reverse.
In sum, while the academic legal literature generally continues to treat constitutional hardball as symmetric or to ignore its partisan distribution, the idea of asymmetric constitutional hardball has become increasingly familiar (if seldom analyzed in depth) outside the legal academy.
Hence the motivation for this Essay: to deepen these ongoing conversations and to spark a new scholarly conversation about this asymmetry, its causes, and its implications for constitutional law and politics.
C. The Plausibility of Asymmetry
Perhaps, though, we and all of the commentators we cite are misreading the historical record. As discussed above, the hardball asymmetry thesis cannot be “proved” in any straightforward manner, given that the phenomenon itself resists numerical calculation and the proper characterization of nearly every possible example, including those listed above, is subject to debate. Nevertheless, we believe that a number of factors, taken together, strongly support our reading of the post-1994 record as containing more methodical and unabashed constitutional hardball on the right.
First, certain constitutional hardball tactics used repeatedly by contemporary Republican legislators have not migrated to the other side of the aisle, whereas the hardball tactics attributed to Democratic legislators (such as pro forma sessions in the Senate, unilateral filibuster reform, and pushing the limits of the budget reconciliation process) have been used by both sides alike. For instance, Democrats have not threatened credibly to default on the national debt.
They have not enacted measures likely to suppress Republican voter turnout in federal elections.
They have not fired their own hand-picked Senate Parliamentarian in an effort to overturn rulings that displeased them.
They have not appointed agency heads known to oppose the agencies they will be leading.
And they have not impeached a President. This tactical divide suggests that there is a qualitative, not just a quantitative, difference in how the parties have been playing constitutional hardball—which we contend in section III.B.1 is grounded in part in Republicans’ greater willingness to incapacitate the government.
Second, our story takes place against a backdrop of asymmetric polarization: Social scientists have shown convincingly that since the 1970s, Republicans have moved further to the right than Democrats have moved to the left.
This is true for rank-and-file voters as well as party elites; it can be observed in public polling data as well as congressional voting patterns.
Moving beyond patterns of polarization, survey evidence suggests that Republican partisans are also strikingly more likely than Democratic partisans to reject consensual politics in principle. A 2010 poll, for instance, found that “a clear majority of Republicans” prefer politicians who “stand firm,” whereas “a large majority of Democrats” prefer politicians who “compromise.”
Insofar as constitutional hardball depends on political actors with strong substantive views eschewing compromise in order to advance those views, these differences in the parties’ attitudes seem illuminating. They suggest an overarching reason why constitutional hardball tactics would tend to hold greater appeal and less downside for Republican officeholders.
Asymmetric constitutional hardball cannot be reduced to asymmetric polarization—the relationship between a party’s ideological evolution and its approach to constitutional conflict is complex—but the existence of the latter surely makes the existence of the former more plausible.
Third, there is considerable evidence that the modern Republican Party acts more like a movement party, with clear and cohesive ideological goals, while the Democratic Party acts more like an amalgamation of interest groups. This is an oversimplified characterization of both parties, of course, but political scientists have repeatedly found a significant distinction along these lines.
Perhaps as a result of being more like a movement party, the current Republican Party also has fewer moderates in positions of power.
Insofar as constitutional hardball tactics depend on the existence or perception of an ideologically committed party with a shared vision of political change, these data points also help support the plausibility of asymmetric constitutional hardball.
Finally, differences in the constitutional philosophies of liberals and conservatives suggest different normative orientations toward constitutional hardball. We will return to this issue below.
Among other potentially relevant differences, stronger commitments on the Republican side to the theory of originalism and the idea of a “lost” Constitution are apt to yield considerably less deference toward the constitutional status quo and the set of unwritten norms that have evolved to facilitate moderation and cooperation in government.
Democrats’ comparatively dynamic (or “living”) understanding of the constitutional order’s legitimacy and ontology, in contrast, gives them a general reason to view destabilizing constitutional hardball tactics with suspicion. They may engage in such tactics anyway, but the effort will involve greater cognitive dissonance.
These different constitutional commitments of the two parties, it bears emphasis, are contingent and bounded in political time.
Perhaps in some future period, it will be liberals who think and speak in terms of restoring a lost constitutional order and conservatives who are more focused on defending a body of judicial precedents that has developed case by case.
But over the past quarter century or so, as Part III explains, it has been conservatives who have had more to gain from dramatic departures from established constitutional understandings, forged during the New Deal and Warren Court eras, while liberals have been pushed toward a more incrementalist and cautious constitutionalism.
The proposition that Republicans play harder hardball, in short, plausibly follows not just from the social science evidence on polarization and the structure of the parties, but also from the internal logic of each side’s constitutional vision.
III. Explaining Asymmetric Constitutional Hardball
Having established that asymmetric constitutional hardball is at least plausible, let us now examine its potential origins and meaning a little more carefully. Why would the officeholders of different political parties be differently disposed toward playing constitutional hardball, particularly in Congress? There are two basic ways to approach this question. The first looks to the incentives and constraints facing these officials as actors embedded in a web of institutional relationships, not only with fellow legislators but also with the voters, donors, advocacy groups, media outlets, and other important players who define the political environment within which they operate.
From this angle, we can disaggregate the question into a series of smaller ones. Which of these players tend to reward or punish elected officials for playing constitutional hardball, and under what circumstances? And do these dynamics vary across the parties? We suggest in section A of this Part that while both Republicans and Democrats face political pressure to play constitutional hardball, such pressure has been considerably stronger and more systematic on the Republican side.
However, this first approach to the question may risk begging it. Why are various crucial players within the Republican coalition more inclined than their Democratic counterparts to reward constitutional hardball or to punish its absence? A second approach moves the analysis to the level of values and ideas. Although all political parties are ideologically diverse, substantial segments of their coalitions hold identifiable clusters of beliefs that are part of what makes the coalitions cohere. We argue in section B that differences in the party coalitions’ moral, legal, and cultural beliefs further explain the asymmetry we observe.
Asymmetric constitutional hardball is not the sort of phenomenon that can be modeled in a neat, monocausal manner. As one examines the potential factors behind it, one quickly finds that many of them do not really offer alternative explanations; rather, they are interlocking elements of related causal stories. We cannot hope in an Essay like this to tease out the relative magnitude of the different causal stories, if doing so is possible at all. But we think it is useful to gather together their elements because, collectively, they can help us understand both why asymmetric constitutional hardball has become such a prominent feature of our politics, and whether it is likely to continue in the Trump era and beyond.
A. Asymmetric Institutions and Incentives
In order to get into office and stay in office, elected representatives need votes. To get votes, they need to secure numerous forms of political support, including the labor of campaign workers and volunteers, the money of campaign contributors and those willing to make officially independent expenditures on a candidate’s behalf, and the endorsements of activists, issue groups, public figures, and power brokers of various kinds. Successful politicians, accordingly, become embedded in a complex set of networks—local, state, and national—that generate powerful and sometimes conflicting incentives for their behavior while in government.
In recent decades, some of these networks have gained in importance while others have declined. A political scientist discussing these dynamics a generation ago likely would have emphasized the role of top party officials and, beyond them, top fundraisers and civil society leaders closely connected to those officials.
Without support from such “insiders,” candidates’ paths to victory in most electoral contexts seemed few and narrow. The influence of these insiders has been waning for some time, however, as the elections of the past decade brought into sharp relief. The center of gravity within each of the two major party coalitions has shifted considerably in the direction of so-called “outside” groups, which are not part of the formal party structure and have their own independent bases of support among donors and volunteers.
These outside groups include comprehensive ideological players such as FreedomWorks and Democracy Alliance; issue-specific outfits such as the Sierra Club, the National Rifle Association, and Planned Parenthood; a few unions that remain powerful locally or nationally on the Democratic side; and a large number of donor-driven groups organized under various legal categories, such as Super PACs or 501(c)(4)s.
These various “intense policy demanders”
may have strong views about whether elected officials should or should not engage in acts of constitutional hardball. Recall that constitutional hardball, as we have defined it, involves either breaching constitutional conventions for partisan ends or attempting to shift constitutional law in an unusually bold or self-entrenching manner—and very often it involves both. For any given elected official, the risks and rewards of playing constitutional hardball will therefore depend, first, on whether and to what extent key political constituencies and policy demanders wish to change settled understandings of the Constitution; and, second, on whether and to what extent these actors wish to see their goals pursued in a manner consistent with prevailing norms of government practice. On both of these dimensions, there is good cause to believe that the Republican coalition—including both the policy demanders and the voters
—generates stronger incentives than the Democratic coalition to play hardball.
1. Safe Seats and Primary Challenges. — One source of this imbalance is the primary system. A significant fraction of members of Congress from both parties now hold “safe seats,” with little prospect of general-election defeat to a candidate from the other political party.
While partisan gerrymandering may have contributed to this phenomenon in the House, rising levels of geographic polarization and party loyalty in voting have extended it to the Senate as well.
Structurally, this means that the main threat to many members’ electoral survival comes from the party primary.
In theory, this threat applies equally to Democrats and Republicans. In practice, its effects have been far from equal. Very few liberal primary challengers have defeated Democratic congressional incumbents in recent years.
Over a dozen “Tea Party” challengers, in contrast, unseated Republican incumbents from 2010 to 2014, including House Majority Leader Eric Cantor.
And well before the Tea Party emerged on the scene, Republican Senators and Representatives were experiencing a greater vulnerability to primary challenges—a trend that began in 1996.
Ever since the Gingrich Revolution, then, Republican members of Congress have had to worry considerably more than their Democratic counterparts about ideologically extreme rivals from their own party. Insofar as these rivals tend to favor a combative style of politics and to hold Beltway conventions in low regard, this dynamic pushes Republican officeholders in the direction of constitutional hardball. There is some intriguing anecdotal evidence from the Obama years that the most forceful demands for constitutional hardball within the House came from those representatives whose districts are overwhelmingly Republican, where these dynamics are likely the most pronounced.
The difficult question remains, though, why primary challenges have been playing out so differently on the Republican side. The balance of this Part offers some partial explanations.
2. Outside Funders. — One driving force behind Republican primary challenges and constitutional hardball over the past decade or so has been the Tea Party. The Tea Party arose both as a movement of voters within the Republican coalition and as a movement of groups within the Koch brothers’ network, most prominently FreedomWorks and Americans for Prosperity.
Like their precursors the Gingrich revolutionaries,
the leaders of this uprising viewed the conventional methods of political bargaining in Washington, as practiced by both parties, as a form of corruption that they sought to purge.
As we will discuss in section B, they also linked this ambition to a powerful vision of constitutional change, styled as constitutional restoration. In pressing its “no-compromise ideology,”
the movement drew organizational and financial support from a set of Republican-affiliated funders who have been developing, since the 1970s, an institutional infrastructure that channels monetary resources toward an agenda of deregulation, tax cuts, and generally reducing the scope of government.
These funders’ sheer financial clout, and willingness to spend, has had a substantial long-term effect on our politics.
On the Democratic side as well, the center of political gravity has been shifting from party leaders and officials to nominally outside groups, as noted above.
But the Democratic network of outside groups does not similarly revolve around large, well-resourced, and broad-gauge ideological players. Instead, on the left the story remains one of coalition politics.
It is a story of a few remaining major unions, environmental groups like the Sierra Club, PACs like EMILY’s List (which supports pro-choice female candidates), trial lawyers, and so on; the list is long, and all of these groups make their demands on Democratic officeholders.
But no financially significant group exerts constant pressure on them to upend prevailing norms of governance. On the contrary, many of the wealthy donors and funders on whom Democrats depend tend to have a moderating effect on the party, rewarding candidates who cater to the professional class and stake out centrist positions.
To be sure, there are some individual donors with strong ideological views who have an outsized role in contemporary Democratic politics. In the two most recent election cycles, the highest-profile example was hedge fund manager Tom Steyer. Before that, it was George Soros. The case of Steyer is instructive: While his funding may have encouraged Democrats to make addressing climate change a higher political priority, it is hard to see how any Democratic officeholder would have faced stronger incentives to play constitutional hardball, at least prior to the Trump presidency, because of support or lack of support from Steyer.
In the mid-twentieth century, when unions represented a much larger proportion of American workers, one could imagine how they might have spurred Democratic politicians to play constitutional hardball, at least on issues related to workers’ rights to organize and strike.
Their role in not only funding campaigns but also staffing them and organizing members on their behalf was for decades unparalleled.
Certain unions also brought a pugnacious style to Democratic politics. Yet after years of decline,
the labor movement was not even able to convince a sufficient number of Democrats to overcome a filibuster of the Employee Free Choice Act in 2009, when Democrats controlled both houses of Congress and enjoyed a filibuster-proof majority in the Senate.
Moreover, it has been a long time since the labor movement seriously pressed for a wholesale change in the direction of the Democratic Party, let alone a wholesale change framed in constitutional terms. For the past half century, labor leaders have tended, instead, to make deals with incumbent players as part of Democratic coalition politics.
There is, in short, no institutional equivalent on the left of the most powerful groups on the right that funded the Tea Party and its predecessors and that continue to threaten “moderate” members of Congress with primary challenges.
As we write these words, the Koch brothers’ donor network is reportedly pressing Senate Republicans to play constitutional hardball by doing away with the “blue-slip” custom through which home-state Senators have traditionally been allowed to block certain judicial nominees.
But this answer to our main question, once again, may seem to raise the same question in a new form. Why are Republican donors, like Republican voters, seemingly so much less interested in rewarding bipartisanship, incumbency, and dealmaking—and so much more interested in rewarding political hardball generally and constitutional hardball specifically? We will return to this question in section B of this Part.
3. Other Mediating Institutions. — So far, we have focused on the parties and some of the funders and advocacy groups in their coalitions. But many of the most important mediating institutions in American politics are none of these. The most obvious institution that mediates political reality for millions of Americans is the media: mass-communication outlets and the individual hosts, commentators, and journalists they feature. Another important but less obvious set of mediating organizations and individuals are the think tanks and experts who are called on to articulate competing sides in policy debates. Together, the news industry, think tanks, and the expert voices they credential play an essential role in constructing the American public sphere. For our purposes, a particularly significant set of speakers are those credentialed to speak about the law and the Constitution. But the general run of pundits matters as well.
Both the Democratic and Republican coalitions have media outlets that tend to take their side of policy debates. And at any given time, factions within each coalition have particular speakers whose voices they seek to promote and legitimate. Is there any reason, then, to believe these institutions generate asymmetric incentives for the parties to engage in constitutional hardball?
There is. To see why, it helps to step back and view the development of the relevant institutions in political time.
In the 1970s and ’80s, American conservatives emerged from the long wilderness of the post–New Deal era, eventually finding a popular president, Ronald Reagan, who brought many conservative ideas into the mainstream. That success belies significant challenges conservatives had to surmount during this period. From the perspective of those in the vanguard of an emerging coalition that was considerably to the right of the prior regime, it seemed that major institutions of almost every important type were unsympathetic to their cause, from print and broadcast media outlets
to Washington think tanks (Brookings being the preeminent one)
to philanthropic foundations.
The policy experts considered qualified, by the standards of the time, to speak on important issues seemed centrist at best. Some were the alumni of recent, relatively liberal or heterodox political administrations; some were university professors; very few were members of the conservative movement.
And so, the conservative movement began a massive institution-building effort across a number of spheres,
an effort whose trajectory one might usefully trace from the creation of the Heritage Foundation and the Cato Institute in 1973 and 1977, respectively,
through the 1996 launch of the Fox News Channel.
In the middle of this period, the Federalist Society emerged as a network of lawyers and law students that aimed to challenge the prevailing liberalism of law schools and to promote a conservative vision of American constitutionalism.
And of course, many existing organizations, from the Chamber of Commerce to groups on the religious right, aligned with different parts of the emerging conservative coalition and began to expand their political and legal work as well.
The story of this explosion of new and newly invigorated institutions is not uniform across all these different spheres. Many of the new think tanks and foundations were the result of an infusion of capital from wealthy, mobilized advocates of deregulation.
The Fox News Channel, in contrast, came into being when its founders saw a business opportunity to frame cable news for a more conservative audience—an opportunity that was partly regulatory, partly technological, and partly both a consequence and a cause of ideological polarization.
Yet despite their somewhat different origin stories, there are some commonalities across these institutions, particularly in their character and self-conception as insurgent challengers to what they perceived as the dominant liberalism of the established order.
These new institutions not only often disagreed with their “mainstream” counterparts, but also often operated according to a different ethic. To see why, it helps to understand that when conservatives complained in the 1970s and ’80s that the media and various centers of learning were generally “liberal,” there was good data corroborating their complaints. Print and broadcast journalists,
and scholars working in settings like the Brookings Institution
were indeed mostly liberal, as were the faculties and student bodies of law schools.
Such liberal leanings undoubtedly affected the way some of these actors thought about and addressed political issues. At the same time, however, such liberal leanings were constrained by norms of professional role morality that structured the work of these older institutions. Established foundations, for instance, “tended to disperse control among a large and diverse group of board members and staff” and “steered clear of political activism.”
Journalists in the mid-twentieth-century American tradition viewed the “objectivity norm,” and its expression in practices such as the separation of news reporting and editorializing, as central to their craft.
They were outraged when conservative critics accused them of shading their news coverage in ways that favored liberal policy positions.
The architects of the emerging conservative movement generally viewed these sorts of depoliticizing norms as either minor or fictitious.
Accordingly, when they established institutions to act as counterweights, they designed them in a more partisan manner, with diminished role-morality constraints. They built grantmaking nonprofits with highly centralized governance structures and a “consciously revolutionary political mission.”
They built a Heritage Foundation that proudly champions “conservative public policies” and makes no attempt to duplicate the Brookings Institution’s aspiration (or pretense) of being nonideological.
In the world of television news, where the pull of an objectivity norm remains particularly strong, Fox News famously branded itself “fair and balanced.” It nonetheless conceived of and sold itself as an ideological player to a degree that was unmatched among its “mainstream media” rivals.
The 2000s brought a liberal counter-reaction to these developments. New liberal think tanks and scholarly institutions such as the Center for American Progress (founded in 2003) and the American Constitution Society (founded in 2001) explicitly modeled themselves on conservative counterparts founded in the 1970s and 1980s, as they sought to challenge those institutions’ dominance during the early twenty-first century.
Following the 2008 elections, MSNBC moved to market itself as a liberal cable channel in the mold of Fox News.
By then, liberals and conservatives were increasingly learning about constitutional developments through different outlets, which credential different experts and privilege different scholarly institutions as sources of legal and policy analysis.
Yet if many on both the left and the right now occupy media “bubbles” or “echo chambers,” which are themselves shaped by larger networks of idea generation and dissemination, there is a significant asymmetry in the way the bubbles work. Liberals mainly continue to rely on, and to place greatest trust in, legacy media outlets such as CNN, NPR, and the New York Times,
whose institutional cultures continue to prize objectivity and to foster a relatively strong degree of respect for government and government officeholders.
In the world of opinion journalism, unabashedly liberal outlets abound. But their audiences have been small compared to the audience for conservative talk radio or the Fox News Channel,
and they themselves may be more constrained than their conservative counterparts by certain norms of professionalism.
Liberals do not tend to get their straight news from overtly ideological sources—think of Daily Kos or Democracy Now!—whose editors and producers have more leeway to feature voices arguing that the current conventions of politics or current constitutional understandings need radical revision.
The conservative echo chamber of the past two decades has been less staid and more self-contained.
Survey data show that a large plurality of conservatives, to an extent that has no parallel on the left, orient themselves around a single news source: Fox News.
And as already suggested, Fox News is less beholden than its mainstream rivals to conventions of bipartisanship and nonpartisanship.
Fox News journalists do operate with significant role constraints
as compared to, say, conservative talk-radio hosts.
But across the core media outlets and think tanks on the conservative side, for reasons having to do with their development in political time, the authorities presented tend to be more explicitly partisan and more willing to argue that the actions or priorities of the other side are egregious and indefensible.
From Fox News suggesting in the 1990s that President Clinton be impeached
to Cato Institute scholars suggesting in the early 2010s that the debt ceiling is “overrated,”
it is plausible to infer that these institutions are more likely to explicitly or implicitly promote constitutional hardball—urging officials to upend governmental norms, just as these institutions themselves upended elite extragovernmental norms, when necessary to rescue the country or the Constitution from the damage being done by political opponents.
B. Asymmetric Ideological Commitments
The two coalitions that make up our major political parties once teemed with internal ideological diversity. In recent decades, however, they have become increasingly ideologically coherent and distinct.
The resulting polarization opens the door to constitutional hardball on both sides. As a general matter, if each party has many moderates in office, or if many high-profile policy issues do not break neatly along party lines, there will be many opportunities for bipartisan bargaining and compromise. Legislators who contemplated hardball tactics in the mid-twentieth century could expect to encounter opposition within their own party, making such tactics not only costlier to pursue but also less effective.
As we suggested at the outset and began to flesh out in preceding sections, the fact that polarization itself has been asymmetric since the 1970s—with Republicans moving further to the right than Democrats have moved to the left—is likely bound up on several levels with the rise of asymmetric constitutional hardball over the past twenty-five years.
The main question we examine in this section is slightly different. So far we have talked of polarization (and its asymmetric character) largely without regard to the specific ideological commitments around which the parties have come to cohere. Does the content of those commitments also have implications for each side’s propensity to play constitutional hardball? The answer to this question may play a significant role in determining whether use of these tactics remains asymmetric in the years ahead.
We believe that the answer is yes—that constitutional hardball cannot be well understood without taking into account the values and ideas espoused by its practitioners. The axes of disagreement between the two major party coalitions now include views about (i) government, (ii) the Constitution, and (iii) the stakes of constitutional politics, all of which bear on officeholders’ assessments of the risks and rewards of engaging in certain forms of constitutional hardball. These ideological factors complement, and to some degree underpin, the institutional and electoral incentives discussed above.
1. Views of Government and the Costs of Constitutional Hardball. — Some of the last several decades’ most forceful—and Republican-identified—forms of constitutional hardball drew their force from the way in which they threatened to disrupt the ordinary operations of government. The thousand-plus subpoenas that Representative Burton issued to the Clinton Administration consumed an enormous amount of executive branch time and energy.
The routinization of Senate filibusters under President Obama made it more difficult to advance legislation and nominations.
Government shutdowns under both Clinton and Obama forced agencies to curtail nonessential operations and services for nontrivial periods of time.
Lately, large blocs of Republican legislators have flirted with defaulting on the national debt, with potentially severe economic and geostrategic consequences, by failing to raise Congress’s self-imposed “debt ceiling.”
All of these tactics seek to gain political leverage through behaviors that risk hobbling the government.
Whether this seems like a worthwhile risk to take depends in part on one’s views about how bad it would be to hobble the government. That question is a proxy for what one thinks about the value of the institution. Is government primarily a force for good that implements important public values, or is it primarily an impediment to individual freedom and a source of corruption and waste? There is ample reason to believe that Republicans’ views on this question lubricate the path to constitutional hardball.
The value of government—especially, but not only, the federal government—has become a point of deep division between the parties, with contemporary Republicans more likely to oppose taxes
and “view the [state] with suspicion even when in power,” and Democrats more likely to trust public entities and experts and to believe “a strong government is necessary in order to counterbalance private economic domination.”
If conservatives assume that they have largely lost the war to limit the size and scope of the federal government, that by itself may tend to make certain forms of government-hobbling constitutional hardball appealing, as a sort of guerrilla tactic or rearguard action.
Republican rhetoric surrounding recent government shutdowns and threatened shutdowns vividly conveys the connection between constitutional hardball and views of government. Asked about a possible veto by President Clinton of a balanced budget bill in 1995, House Speaker Gingrich retorted, “Which of the two of us do you think worries more about the government not showing up?”
“We’re very excited,” Representative Michele Bachmann said on the eve of the 2013 shutdown over the ACA. “It’s exactly what we wanted, and we got it.”
Prominent conservative commentators amplified these sentiments. “Bring on the shutdown,” wrote Tom Giovanetti, president of the libertarian Institute for Policy Innovation, in 2011. “Every day that Americans wake up and find that the coffee still brews and the water still comes out of the faucet without the assistance of the federal government, Republicans win.”
RedState contributor Jeff Emanuel celebrated a shutdown that same year as a means to combat “our bloated, overfunded (with borrowed money), unsustainable government, which is badly in need of trimming and streamlining.”
RedState’s then-editor-in-chief Erick Erickson tweeted in 2010: “The upside? No laws passed. No gov’t spending. Can’t wait for the shutdown.”
Picking up on these attitudes toward the federal government, President Trump recently touted the idea of a shutdown, even in a period of unified Republican control of Congress, as a way to “fix [the] mess” in Washington.
It is less clear whether this divide over the value of government affects the parties’ propensity to engage in other types of constitutional hardball that do not have such obvious implications for government capacity. We might draw a distinction here between obstruction-creating forms of constitutional hardball and obstruction-clearing forms of constitutional hardball. The latter aim to minimize or circumvent barriers that have arisen—sometimes as a result of forceful uncompromising methods by the other side—to prevent legislative or administrative action. Such forms of hardball enable the government to get things done. President Obama’s most controversial recess appointments and executive initiatives, for instance, were pitched in these terms.
Even if Democratic officeholders are more likely than Republicans to be constrained by a commitment to “the smooth functioning of government,”
as a former aide to Senator Harry Reid asserted last year, their corollary commitment to a strong government that solves economic problems
may have disinhibiting effects.
Overall, though, it seems safe to assume that the practice of constitutional hardball, and especially obstruction-creating hardball, tends in the aggregate to raise the transaction costs of governance. It may also lead to less durable and effective policy, insofar as it pushes those in power toward relatively precarious or piecemeal solutions that do not command broad bipartisan support and do not necessarily become legally entrenched. These policy consequences, in turn, may contribute to a decline in public trust in government as well as an exacerbation of constitutional conflict.
And so on multiple levels, one would expect that a party whose main commitments are framed in terms of incapacitating the government
would have a stronger political motivation to engage in more, and more destabilizing, forms of constitutional hardball. Conversely, one would expect that a party whose commitments are framed primarily in terms that demand government action would, as a general matter, be warier of constitutional hardball.
2. Originalism, Constitutional Restorationism, and Forms of Fidelity. — In addition to becoming more ideologically coherent and distinct, the parties have also become more constitutionally coherent and distinct over the past several decades. As numerous scholars have observed, the Republican Party has been associated since the 1980s with the interpretive theory of originalism,
often paired in political discourse with a commitment to judicial restraint and strict construction of the federal government’s powers.
The rise of the Tea Party only intensified these associations.
The Democratic Party, on the other hand, has been identified with a philosophy of “living constitutionalism” that is pluralistic as to interpretive method but generally concerned to construe the Constitution in a manner that safeguards canonical precedents and supports contemporary needs and values.
This partisan divide is itself asymmetric. While both coalitions have developed increasingly clear views about the basic direction in which they would like to see constitutional law go,
Republican politicians and activists have promoted their themes—originalism, strict construction, judicial restraint—far more vigorously than Democrats have promoted any alternative high-level constitutional vision.
Republican and Democratic voters show the same asymmetry, whether as a consequence of their politicians’ rhetoric or a cause of it or both. Significantly more Republicans tell pollsters that they regard the Supreme Court as an important or the most important issue when they vote for President,
and the content of their views about the Court indicates that “originalism has been translated into common parlance with some success.”
As suggested above,
the Republican Party’s embrace of originalism and its denigration of living constitutionalism may be relevant to its propensity to play constitutional hardball, in at least two ways. Rhetorically, these arguments have contributed to a narrative of constitutional corruption that authorizes, and maybe even requires, bold moves to recover a prelapsarian past. Conceptually, these arguments frame constitutional fidelity in a manner that heavily discounts the importance of judicial precedent and of unwritten norms that have developed over time to structure and facilitate the government’s work. The combination supplies both motivation and justification for acts of hardball that aim to deprive Democrats of the opportunity to make or apply constitutional law.
Uniting its stances on constitutional interpretation, constitutional history, and the proper role of government, we might say that the Republican Party has cultivated a politics of constitutional restorationism. One extreme form of this politics centers on the “Constitution in exile,” or the belief that the entire edifice of New Deal precedents enabling the growth of congressional and administrative power is unsupportable and ought to be overturned.
But well short of the Constitution-in-exile position, Republican activists have mobilized around ideas and tropes of constitutional restorationism for years now.
In political time, in other words, it seems that both sides’ basic constitutional outlooks remain the ones that were forged in the 1970s and ’80s, when a more rightward-leaning Supreme Court began to reshape the jurisprudence of the previous era. Wielding the charge of judicial activism and, subsequently, the theory of originalism, Republican officials going back to President Nixon have agreed on the necessity of restoring the Constitution’s true, real, lost meaning in the face of subversion by liberal judges and politicians.
This view lends itself naturally to engaging in constitutional hardball. The more illegitimate the other side’s constitutional usurpations, the more legitimate are the measures taken to counter them
—up to and including “united and unyielding opposition” to a President’s agenda
or flatly refusing to consider a Supreme Court nominee.
And if the key inputs into constitutional analysis are those that illuminate the meaning of the text at the time of its adoption, then the institutional norms and settlements that developed over the course of the twentieth century are not necessarily owed any constitutional respect, whether as a matter of precedent, prudence, or epistemic insight.
None of this is to suggest that Republicans’ views on constitutional hardball and their ideas about originalism or the lost Constitution will always or necessarily be in perfect alignment. Most people’s constitutional beliefs seem to be motivated in complex and often unconscious ways by their political preferences, moral values, and cultural worldviews,
and there is no reason to think that partisans on the right (or left) would be an exception.
People’s views about the efficacy and desirability of constitutional hardball are likewise the product of a range of factors. But at a minimum, ideas about originalism and the lost Constitution furnish a powerful legal vocabulary and conceptual toolkit with which to explain, defend, and rally around constitutional hardball.
Along with its resonance with conservative voters’ moral and cultural commitments, part of what makes originalist talk of constitutional restoration such a powerful discursive mode, and one that creates such a hospitable climate for constitutional hardball, is that it works on different levels for different audiences. Some appeals to originalism function as a kind of “value-laden . . . symbolic language” for the Republican electorate,
while others are highly nuanced—indeed, far more nuanced than the opinions of the Supreme Court—and suitable for debate among legal theorists, historians, and philosophers of language.
The more sophisticated versions cast a vague legitimating halo over the less sophisticated versions.
Ordinary voters may not know the difference between original expected application and original public meaning, but they get the message that liberal courts have gone wild, administrative agencies have ballooned, and drastic measures are needed to rein them in.
Originalist talk of constitutional restoration simultaneously provides professional respectability and populist ballast for a political coalition that, while conceiving of itself as an insurgent challenger to a left-wing judiciary, has controlled the Supreme Court for over forty years.
The Court’s conservatism, in turn, feeds back into the dynamics of constitutional hardball by decreasing the odds (real or perceived) that Republican hardball will be met with a judicial rebuke.
This same historical trajectory has had a very different effect on the other major political coalition and its orientation toward the Constitution. Democrats have been on the defensive in American constitutional politics since the late 1970s, and this has put a premium on articulating arguments for leaving past gains in place.
Like conservatives, liberals have come to insist on particular forms of constitutional fidelity. But instead of aligning themselves with the Founders’ Constitution and advancing claims about its “true” meaning, they tend to align themselves with the constitutional law that has developed in certain transformative periods of American history, especially Reconstruction and the Second Reconstruction that took place from 1954 through the early 1970s. Liberals argue for fidelity to, among other things, the Reconstruction Amendments;
Brown v. Board of Education’s promise of racial integration;
Roe v. Wade’s promise of reproductive autonomy;
and the precedents of the Warren Court that set the high-water mark for liberal constitutional interpretation in a variety of spheres, especially those having to do with electoral representation and the rights of the politically disempowered.
From the perspective of this sort of fidelity, plenty has been lost in recent decades, and there is plenty to restore. A few recent Supreme Court decisions, above all Citizens United v. FEC, have stirred Democratic voters and politicians to call for dramatic change, such as a constitutional amendment or a judicial reversal.
But for the most part, liberal constitutionalism in recent decades has instead emphasized fidelity to mid-twentieth-century precedents and to the established order.
If anything, the erosion of that order has prompted liberals to become even more staunchly protective of what remains. The net result for the Democratic Party has been a small-c conservative orientation toward the Constitution. It is an orientation that emphasizes incremental progress, the insulation of law from politics, and respect for the prevailing conventions and understandings of constitutional practice—and that, as such, is distinctively unsuited to constitutional hardball. If the Republican Party’s dominant conception of constitutional fidelity has emboldened its officials to play hardball, the Democratic Party’s “defensive crouch”
since losing the Supreme Court has made its officials wary of staking bold claims on the Constitution.
3. Existential Politics. — Constitutional narratives of debasement and restoration are consonant with a broader type of narrative in contemporary conservative politics: a story that something has gone fundamentally awry in the republic, on the order of an existential crisis, and that unpatriotic liberals have allowed or caused it to happen. We use the phrase type of narrative because it is not a single story. Within the conservative movement, there are some who worry deeply about the unsustainability of the national debt and excessive government spending; others focused on the perceived threat of unchecked immigration; others concerned that a growing bureaucratic state is stifling private enterprise; others who decry a deterioration in respect for institutions like the family or the police; and still others who believe their side to be losing the “culture wars” in ways that threaten the nation’s moral fabric.
Although it has become more ideologically coherent in recent decades, the conservative movement remains far from monolithic. Many who hold conservative positions on such issues do not frame them in existential terms. But many Republican Party activists and politicians do. As fears of the Party’s own “demographic extinction”
have mounted in recent years, a significant proportion of the Party’s most influential media personalities and legislators, from Rush Limbaugh to House Speaker Paul Ryan to Senator Ted Cruz (a famously fierce constitutional hardball player
), have drawn repeatedly on these themes when describing the stakes of partisan politics.
President Obama aroused a great deal of existential alarm on the right. Republican politicians questioned his commitment to principles such as free-market capitalism
and American exceptionalism,
and they encouraged a “birther” movement that insisted he was born in Kenya and therefore ineligible to hold office.
If one widens the historical lens, however, it is apparent that this general brand of racially charged alarmism laced with conspiracy theory was not simply a product of what some called Obama Derangement Syndrome.
Bolstered by the rise of fundamentalist groups and a conservative-media echo chamber, the “paranoid style in American politics”
had been making inroads into the Republican coalition for some time before President Obama was elected.
Republican officials at the state and national level, for instance, have been warning since Bush v. Gore, without any good evidence, of a “plague” of Democratic voter fraud that imperils the electoral system.
In the 2016 election cycle, a prominent politician on the right edge of the Republican Party argued explicitly that if Hillary Clinton were to win the presidency in 2016, it would be “the last election” the country would ever hold, as Democrats would finally go ahead and end American democracy.
A widely cited conservative essay described the Trump–Clinton contest as “the Flight 93 election,” in which American voters must “charge the cockpit or . . . die.”
Assertions like these make political sense only in the context of a coalition in which existential (or eschatological) thinking and profound suspicion of the other side play an important, and perhaps unifying, role.
Existential politics is not genteel. For obvious reasons, it does not facilitate bipartisan compromise or foster respect for the prevailing norms of governance. If enough of an elected official’s supporters conceive of politics in existential terms, the fact that a particular tactic flouts constitutional conventions or settled constitutional understandings may count in its favor. The question is whether that flouting can be linked to a politically credible claim that extraordinary threats to the republic call for an extraordinary response. As Richard Hofstadter argued in his famous essay on the paranoid style, if “what is at stake is always a conflict between absolute good and absolute evil, what is necessary is not compromise but the will to fight things out to a finish.”
Existential themes have not played nearly so prominent a role in liberal political discourse in recent decades—which gives us one more clue as to why constitutional hardball did not similarly take hold in the Democratic Party during this period. The closest analogy on the Democratic side is telling. Many liberals with strong environmental commitments view climate change as quite literally an existential threat to humanity, with apocalyptic implications if current trends are not reversed.
Yet while environmental groups have long been important actors in the Democratic political coalition, Democratic officeholders have largely resisted framing the climate change issue in dire terms.
The presidency of Donald Trump, on the other hand, has both unified the coalition on the left (including some independents in the middle) and generated a raft of apocalyptic rhetoric among liberal elites.
This presents an interesting test case, albeit one that is in certain respects sui generis. The short-term question is whether President Trump will inspire liberals in the same way that President Obama inspired conservatives—leading them to embrace a more existential view of politics and, on that basis, a correspondingly greater willingness, even eagerness, to engage in constitutional hardball in opposition to the President. This question quickly leads to several others. If President Trump does prove galvanizing in this way, will the partisan asymmetry in constitutional hardball that has been a defining feature of our politics for the past quarter century disappear or even reverse itself? Would such a change, if it occurs, prove more durable than the Trump presidency? And finally, would it be a good thing for the country? We conclude with some thoughts on these questions.
Conclusion: The Future of Constitutional Hardball—and the Republic
The central organizing claim of this Essay is that the Republican Party has played constitutional hardball with greater intensity and efficacy than the Democratic Party over the past quarter century or so. As the Essay has tried to show throughout, it is simply impossible to understand contemporary constitutional politics in the United States without understanding this point. Our project has been primarily descriptive and explanatory: to illustrate what asymmetric constitutional hardball has meant in practice; to set this asymmetry in a larger historical, institutional, and intellectual context; and to examine a range of factors that have likely contributed to it. We expect that some right-leaning readers may remain skeptical of the asymmetry thesis, while some left-leaning readers may feel we have enacted something analogous to the very Democratic tendencies we discuss, by being overly anxious to identify caveats and complications. Yet even if we cannot hope to garner agreement on all the particulars of our argument, we hope this Essay will spur sustained reflection from scholars of all stripes on the phenomenon of asymmetric constitutional hardball.
Although our aims in this Essay have been primarily descriptive and explanatory, the analysis also has predictive implications for whether Republicans will continue to play more constitutional hardball than Democrats in the years ahead. The evidence from President Trump’s first year in office has been mixed. Moreover, American politics is sufficiently unsettled right now that its future course seems even harder than usual to predict. It is quite possible, as Balkin has argued, that we are nearing the end of the long Reagan regime in American political time and will soon begin a very different era.
However, the factors identified in Part III are stubborn; despite our unsettled present, they show few signs of imminent change. Taken together, they give good cause to believe that the basic asymmetry explored in this Essay will persist through and beyond the Trump Administration. These factors illuminate preconditions that may need to be met for Democrats to eliminate the constitutional hardball gap. At this writing, they have not been met.
Briefly consider a few of them. The financial engine that drives a number of the central institutional players on the right, such as the Koch brothers’ network and the Heritage Foundation, continues to hum. The prospects for an equal and opposite counterweight on the left—a dramatic revival of the power of unions, say, or a decision by wealthy liberals to begin investing in political advocacy on a Koch-network-like scale—appear unlikely at this juncture.
In the media, the story is more equivocal. There has been a recent uptick in viewers for programs such as The Rachel Maddow Show that are unabashedly partisan on the left,
and some have suggested that mainstream outlets might respond with a sharper-edged, more liberal brand of news.
Even still, the conservative media bubble is likely to remain more insular than the liberal one for the foreseeable future, given the way each side’s news organizations and think tanks have been shaped by their development in political time.
Barring a major rearrangement in Democratic funding patterns or media consumption habits, it is hard to see what could generate and sustain a wave of primary challenges from the left to rival the Tea Party wave of challenges to Republican incumbents from the right.
Moreover, the two party coalitions seem set to retain their underlying attitudes about government. There will be no near-term reversal in the identity of the party that feels more keenly the danger of a prolonged government shutdown, a debt ceiling standoff, or the destruction of small-c constitutional norms that facilitate negotiation and legislation. Contemporary Democrats and liberals believe, centrally, in the promise and usefulness of government; outside of certain domains such as the military, contemporary Republicans and conservatives do not.
President Trump’s victory might have been thought to presage a radical realignment in this regard: the possible emergence of a populist conservatism that favors the welfare state and direct public spending on domestic infrastructure. Soon after his inauguration, however, it became clear that this (always remote) possibility was not occurring.
Democrats are likely to continue to see greater risk than Republicans in the numerous types of constitutional hardball that threaten to disable the machinery of government.
Perhaps even more importantly, the two party coalitions seem set to retain their views of the constitutional order. Notwithstanding the emergence of liberal versions of originalism within the legal academy, Democrats today largely continue to defend a doctrinal regime built up in accretive steps through Reconstruction, the New Deal, and the Warren Court era,
while conservatives largely continue to advocate fundamental revisions to the prevailing constitutional order. Conservatives may disagree internally about exactly which form of constitutional “restorationism” is preferable, but for our purposes these disagreements are unimportant. Any of the available options, or any combination of them, will do the work of justifying constitutional hardball.
As noted above, President Trump certainly seems to have moved the needle on liberals’ receptiveness to what we have called existential politics.
But some caution is in order. The existential alarm about Trump has fixated on him and his Administration, not on the Republican Party. It lacks the Manichean quality of the existential alarm that has been directed at Democrats and is therefore less apt to prove durable. Far from appearing the leader of a well-oiled national machine, President Trump appears to liberals (as well as to some members of his own party) a frightening and solitary sower of chaos. The resulting sense of crisis seems unlikely to survive without Trump in the Oval Office.
For all these reasons, we anticipate that the deep forces that drive asymmetric constitutional hardball will outlast the Trump Administration. They are too closely linked to the main disagreements that define the current party coalitions. Some liberal voices will continue to call on Democratic officeholders to “fight like Republicans” and play more constitutional hardball.
And in the short run, with Trump as President, they may occasionally get their wish. But in the medium and long run, any such hopes for equalizing the practice of constitutional hardball will be realized only if far-reaching institutional or ideological shifts have first altered the landscape this Essay has described. It is always possible that unanticipated new developments will reconfigure American constitutional politics. Our point is that these developments would have to be quite fundamental to remake the dynamics of constitutional hardball.
Finally, even if they were able to ramp up the practice of constitutional hardball in the medium and long run, it is not obvious to us that it would be wise for Democrats to do so. There are two basic game-theoretic models for the interaction between the parties’ approaches to constitutional hardball. According to one model, Republicans continue to deviate from cooperative strategies in part because Democrats—at least since the advent of Clintonian triangulation
—have failed to respond proportionately. More forceful “punishments” might have imposed political costs sufficient to compel Republicans to let up. This first model suggests that greater Democratic constitutional hardball would ultimately lead to an equilibrium with less Republican constitutional hardball. Prominent liberal law professors have urged greater Democratic constitutional hardball based implicitly on this model.
The second model, however, is one of tit-for-tat escalation with no obvious endpoint. According to this model, greater use of constitutional hardball by Democrats now would, if anything, tend to increase even further the use of constitutional hardball by Republicans, as members of both parties successively shred cooperative norms, shrink the space for bipartisan policy solutions, and make governance more difficult—all without paying a significant political price because of current levels of partisan polarization. The general observed pattern of mutual escalation of constitutional hardball over the past generation lends some support to the second model over the first, even though this escalation has so far been asymmetric.
Ramping up constitutional hardball, then, is a dangerous game to play over any extended period of time. It might bring the other side to the bargaining table. But especially if it does not produce immediate payoffs, it might also undermine the constitutional system and leave everyone worse off.
For liberals who are troubled by this Essay’s asymmetry thesis and yet also worry that sustained Democratic hardball is as likely to lead to mutual escalation as to de-escalation or Democratic electoral gains,
there are at least two other possible responses to the present asymmetry. First, liberals could try to work toward the sort of fundamental realignment of the political system—either a fracturing of the Republican coalition
or a wholesale reorientation of the Democratic one—that might alter the underlying drivers of constitutional hardball.
It goes without saying that any such effort would face immense challenges. We do not purport to know how best to tackle these challenges, although we hope this Essay has helped to clarify some of them.
A second possible response is not to play constitutional hardball whenever the opportunity arises, but instead to use temporary points of leverage to press for procedural changes that amount to anti-hardball. For instance, independent redistricting commissions, professionalized nonpartisan election bureaucracies, and the like, while far from optimal in terms of maximizing political advantage, have the effect of taking certain types of constitutional hardball off the table (and also, in the case of the redistricting commissions, of altering the constituencies of Republican and Democratic representatives alike so that elected officials would have somewhat less to fear from ideological primary challengers and thus from being seen as moderate, an effect that would likely be more transformative on the Republican side). Unfortunately and paradoxically, the “voting wars” have reached such a high temperature that even effectuating these temperature-lowering, anti-hardball solutions might in some cases require constitutional hardball.
Our analysis raises a different set of strategic questions for conservatives. The Republican coalition, this Essay has suggested, has increasingly been built around a set of narratives, beliefs, and institutional structures that justify and demand constitutional hardball. Indeed, this orientation toward constitutional hardball seems to be doing important work to unify a Republican coalition of considerable internal complexity. That is a major benefit, but there are also costs. Constitutional hardball has internal as well as external feedback effects. Engaging in hardball normalizes hardball; arguments offered in its defense put a premium on ideological purity and make it tougher to compromise at a later date. The more your side plays hardball, the less it even feels like you are playing hardball.
The appeal of flouting Washington norms is now very strong among Republican voters, and it takes no great public-opinion expertise to see that this appeal was central to the electoral success of President Trump.
The long-term problem is that organizing a coalition (in part) around constitutional hardball puts continual pressure on the conventions at the foundations of governance. If the ultimate goal is to build a broad and effective legislative majority, it is not at all clear that the Republican Party’s optimal strategy is to engage in continued escalation of the most polarizing forms of constitutional politics. And yet, for the reasons this Essay has discussed, it will often be risky for Republican officeholders to resist the incentives our system currently provides to engage in constitutional hardball.
Our conclusion is thus depressing for all sides—but asymmetrically so. Liberals have the strongest cause for despair. As long as the two major party coalitions and their institutional infrastructures look roughly as they do now, calls for Democratic officeholders to engage in persistent, Republican-style constitutional hardball are unlikely to succeed, while strategies that aim to reduce the overall amount of hardball face daunting odds. Conservatives, however, have reason to worry as well. It is possible for a political coalition to become too devoted to hardball culture for its own good, let alone the good of the republic. Constitutional hardball may have helped Republicans win a number of partisan skirmishes in recent decades, but it has also fueled demand for a mode of governance that makes governance itself more difficult. Breaking out of this vicious cycle will be one of the great challenges for American constitutionalism in the twenty-first century.