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"Constitutional hardball" bends the rules. "Constitutional beanball" breaks democracy. Republicans excel at both. Lawprofs @DPozen & Joseph Fishkin on 1st, @jedshug on 2nd: 1/11 salon.com/2019/02/09/wel…
In 2004, law prof Mark Tushnet coined the term "constitutional hardball" here: dash.harvard.edu/bitstream/hand…
I described it as "things a judge might let you get away with under the Constitution, but that your mother never would”: violations of norms, not laws. 2/11
I described it as "things a judge might let you get away with under the Constitution, but that your mother never would”: violations of norms, not laws. 2/11
For years, political commentators argued that Reps did it >> than Dems, reflecting the asymmetry described by @MattGrossmann & @DaveAHopkins in *Asymmetric Politics* amazon.com/Asymmetric-Pol… 3/11
Last year, law profs @DPozen & Joseph Fishkin rigorously developed that argument in "Asymmetric Constitutional Hardball,”
columbialawreview.org/content/asymme…
which I wrote about here: salon.com/2018/03/18/til… 4/11
columbialawreview.org/content/asymme…
which I wrote about here: salon.com/2018/03/18/til… 4/11
One key point they made was: “Constitutional hardball remains *reciprocal but not symmetrical*, One party, the Republican Party, has become especially identified with hardball tactics, with large consequences for our constitutional system.” 5/11
There've now been 2 response & a reply. In the first, @ProfDBernstein ignored the reciprocal/symmetrical distinction, harping on Dem examples.
columbialawreview.org/content/consti… 6/11
columbialawreview.org/content/consti… 6/11
In the second, @jedshug looked at this back-and-forth & said, 'woa, there's something more serious on one side,' GOP is doing things that are "fundamentally antidemocratic," what he called "Constitutional Beanball": papers.ssrn.com/sol3/papers.cf… 7/11
"Hardball in baseball is a legitimate and appreciated style of play, whereas beanball is a kind of tactic that gets you rejected and fined,” @jedshug explained. So it's a vital disctinction. 8/11
Examples of constitutional beanball include voter-ID laws designed to disenfranchise, extreme gerrymandering, abuse of the DOJ to prosecute political enemies (as in the Bush US Attorney's scandal) and “racial marginalizing and stigmatizing the other.” 9/11
In their reply, @DPozen & Fishkin criticized @ProfDBernstein for fallacious reasoning, and saw promise in @jedshug's idea of "constitutional beanball", though with some caveats. papers.ssrn.com/sol3/papers.cf… 10/11
This discussion is crucial for making sense of dangers to democracy today. I discuss this all, with comments from @DPozen, Fishkin & @jedshug, in my new @Salon story: salon.com/2019/02/09/wel…
11/11
11/11
