Hardball Republic: Constitutional Hardball During Periods of Ordinary Politics

03 September 2020, Version 1
This content is an early or alternative research output and has not been peer-reviewed at the time of posting.


Since the 1980s, congressional parties have traded increasingly narrow majorities, forgoing interparty compromise for unabashedly partisan lawmaking tactics. This includes “constitutional hardball,” in which lawmakers entrench their party position on high stakes votes by bending normal lawmaking procedure. Nevertheless, literature on the topic is new and descriptive (Balkin 2017, Fishkin and Pozen 2018, Pozen 2018), suggesting that hardball occurs briefly, during rare transformative moments (Tushnet 2003, Ackerman 1993, 1998, 2014). I argue that constitutional hardball is a durable, regular feature of congressional struggles over judicial nominations and voting rights. Specifically, I argue that given Article V’s high barriers to amendment, members of Congress unable to pass formal amendments have instead used hardball measures to achieve quasi-constitutional reform on judicial powers and voting rights. To test this claim, I offer case studies on the Enabling Act of 1889, House reapportionment after the 1920 Census, and contemporary Article V amendment proposals.


Comments are not moderated before they are posted, but they can be removed by the site moderators if they are found to be in contravention of our Commenting Policy [opens in a new tab] - please read this policy before you post. Comments should be used for scholarly discussion of the content in question. You can find more information about how to use the commenting feature here [opens in a new tab] .
This site is protected by reCAPTCHA and the Google Privacy Policy [opens in a new tab] and Terms of Service [opens in a new tab] apply.