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 grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which people, the people have the authority to deliberate and decide legislation ("direct democracy"), or to choo ...

, 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 University political scientists Daniel Ziblatt and Steven Levitsky have argued that democracies such as

Argentina Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, th ...

and

Venezuela Venezuela (; ), officially the Bolivarian Republic of Venezuela ( es, link=no, República Bolivariana de Venezuela), is a country on the northern coast of South America, consisting of a continental landmass and many islands and islets in th ...

shifted to authoritarianism in part through constitutional hardball, as Juan Perón and

Hugo Chavez Hugo or HUGO may refer to: Arts and entertainment * ''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 based on a ...

used legal court-packing schemes to cement power.

In the United States

David Pozen, Professor of Law at

Columbia Law School Columbia Law School (Columbia Law or CLS) is the law school of Columbia University, a private Ivy League university in New York City. Columbia Law is widely regarded as one of the most prestigious law schools in the world and has always ranked i ...

, wrote in 2018 that "the concept of constitutional hardball seemed to be passing into common usage" in the United States. Examples of constitutional hardball include the use of the

debt ceiling A debt limit or debt ceiling is a legislative mechanism restricting the total amount that a country can borrow or how much debt it can be permitted to take on. Several countries have debt limitation restrictions. Description A debt limit is a l ...

to force others to agree to one's demands (hostage-taking), disenfranchising voters for the opposing party (

voter suppression Voter suppression is a strategy used to influence the outcome of an election by discouraging or preventing specific groups of people from voting. It is distinguished from political campaigning in that campaigning attempts to change likely voting ...

), routine use of the filibuster, routine refusal of appointments,

court-packing The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...

, actions by lame-duck administrations and legislatures to curb the powers of incoming legislators and administrations, using pardoning 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 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 or during t ...

. It has been suggested that the use of constitutional hardball in the

United States Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...

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.

References

{{Reflist, 2 Constitutional law Political science terminology

In the United States

See also

References