Constitutional hardball is the exploitation of procedures, laws and institutions by political actors for partisan gain in ways which violate pre-established norms and push the bounds of legality. Legal scholars and political scientists have characterized constitutional hardball as a threat to

democracy Democracy (from , ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which political power is vested in the people or the population of a state. Under a minimalist definition of democracy, rulers are elected through competitiv ...

, because it undermines shared understanding of democratic norms and undermines the expectation that the other side will comply with democratic norms. As a result, the use of constitutional hardball by one side of partisans encourages other partisans to respond in similar fashion. The concept stems from a 2004 article by Mark Tushnet of

Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...

. Harvard University political scientists Daniel Ziblatt and

Steven Levitsky Steven Robert Levitsky (born January 17, 1968) is an American political scientist and professor of government at Harvard University and a senior fellow for democracy at the Council on Foreign Relations. He is also a senior fellow at the Kette ...

have argued that democracies such as

Argentina Argentina, officially the Argentine Republic, is a country in the southern half of South America. It covers an area of , making it the List of South American countries by area, second-largest country in South America after Brazil, the fourt ...

and

Venezuela Venezuela, officially the Bolivarian Republic of Venezuela, is a country on the northern coast of South America, consisting of a continental landmass and many Federal Dependencies of Venezuela, islands and islets in the Caribbean Sea. It com ...

shifted to authoritarianism in part through constitutional hardball, as

Juan Perón Juan Domingo Perón (, , ; 8 October 1895 – 1 July 1974) was an Argentine military officer and Statesman (politician), statesman who served as the History of Argentina (1946-1955), 29th president of Argentina from 1946 to Revolución Libertad ...

and

Hugo Chavez Hugo or HUGO may refer to: Arts and entertainment * Hugo (film), ''Hugo'' (film), a 2011 film directed by Martin Scorsese * Hugo Award, a science fiction and fantasy award named after Hugo Gernsback * Hugo (franchise), a children's media franchise ...

used legal court-packing schemes to cement power.

In the United States

Examples of constitutional hardball include the use of the debt ceiling to force others to agree to one's demands (hostage-taking), disenfranchising voters for the opposing party (

voter suppression Voter suppression is the discouragement or prevention of specific groups of people from voting or registering to vote. It is distinguished from political campaigning in that campaigning attempts to change likely voting behavior by changing the o ...

), routine use of the

filibuster A filibuster is a political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent a decision. It is sometimes referred to as "talking a bill to death" or "talking ...

, routine refusal of appointments, court-packing, actions by lame-duck administrations and legislatures to curb the powers of incoming legislators and administrations, using

pardon A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the j ...

ing powers on oneself or one's associates, and refusal to commit to the

peaceful transition of power A peaceful transition or transfer of power is a concept important to democracy, democratic governments in which the leadership of a government peacefully hands over control of government to a newly elected leadership. This may be after elections o ...

. David Pozen, Professor of Law at

Columbia Law School Columbia Law School (CLS) is the Law school in the United States, law school of Columbia University, a Private university, private Ivy League university in New York City. The school was founded in 1858 as the Columbia College Law School. The un ...

, wrote in 2018 that "the concept of constitutional hardball seemed to be passing into common usage" in the United States. It has been suggested that the use of constitutional hardball in the

United States Congress The United States Congress is the legislature, legislative branch of the federal government of the United States. It is a Bicameralism, bicameral legislature, including a Lower house, lower body, the United States House of Representatives, ...

has strengthened the role of the executive in policy-making, as the President becomes more likely to use the powers of office to circumvent the legislature; Obama's use of executive orders is mentioned as an example of constitutional hardball. In the 1990s, House Speaker

Newt Gingrich Newton Leroy Gingrich (; né McPherson; born June 17, 1943) is an American politician and author who served as the List of speakers of the United States House of Representatives, 50th speaker of the United States House of Representatives from 1 ...

's use of "asymmetric constitutional hardball" led to increasing polarization in American politics driven primarily by the Republican Party.

References

{{Reflist, 2 Constitutional law Political science terminology Democratic backsliding Democratic backsliding in the United States Constitutional crises

In the United States

See also

References