Constitutional hardball

Last updated

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. [1] [2] Legal scholars and political scientists have characterized constitutional hardball as a threat to democracy, 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. [3] [4] [2]

Contents

The concept stems from a 2004 article by Mark Tushnet of Harvard Law School. [5] [6] Harvard University political scientists Daniel Ziblatt and Steven Levitsky have argued that democracies such as Argentina and Venezuela shifted to authoritarianism in part through constitutional hardball, as Juan Perón and Hugo Chavez used legal court-packing schemes to cement power. [7]

In the United States

David Pozen, Professor of Law at Columbia Law School, wrote in 2018 that "the concept of constitutional hardball seemed to be passing into common usage" in the United States. [8]

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), routine use of the filibuster, routine refusal of appointments, court-packing, [9] 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. [4] [1] [2] [10] [11] [7] [8] [12]

It has been suggested that the use of constitutional hardball in the United States Congress 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. [4] [13]

See also

Related Research Articles

Politics of Cambodia Political system of Cambodia

The politics of Cambodia are defined within the framework of a constitutional monarchy, in which the king serves as the head of state, and the prime minister is the head of government. The collapse of communism set in motion events that led to the withdrawal of the Vietnamese armed forces, which had established their presence in the country since the fall of the Khmer Rouge. The 1993 constitution, which is currently in force, was promulgated as a result of the 1991 Paris Peace Agreements, followed by elections organized under the aegis of the United Nations Transitional Authority in Cambodia. The constitution declares Cambodia to be an "independent, sovereign, peaceful, permanently neutral and non-aligned country." The constitution also proclaims a liberal, multiparty democracy in which powers are devolved to the executive, the judiciary and the legislature. However, there is no effective opposition to the Prime Minister Hun Sen, who has been in power since 1985. His Cambodian People's Party won all 125 seats in the National Assembly in 2018 after the banning of opposition party CNRP and KNLF. KNLF became a main a opposition exiled in Denmark after CNRP was dissolved. Event if the communal election which will be in 2022 and national 2023, there is no international observers such as EU or UN. The government is considered to be autocratic.

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.

Mitch McConnell American politician and lawyer (born 1942)

Addison Mitchell McConnell III is an American politician and retired attorney serving as Senate minority leader since 2021 and as the senior United States senator from Kentucky, a seat he has held since 1985. A member of the Republican Party, he previously served as Senate majority leader from 2015 to 2021, and as minority leader from 2007 to 2015.

Political polarization is the divergence of political attitudes away from the centre, towards ideological extremes.

An illiberal democracy describes a governing system in which, although elections take place, citizens are cut off from knowledge about the activities of those who exercise real power because of the lack of civil liberties; thus it is not an open society.

<i>The Spirit of Law</i>

The Spirit of Law, also known in English as The Spirit of the Laws, is a treatise on political theory, as well as a pioneering work in comparative law, published in 1748 by Charles de Secondat, Baron de Montesquieu. Originally published anonymously, as was the norm, its influence outside France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published the first English translation. In 1751 the Roman Catholic Church added De l'esprit des lois to its Index Librorum Prohibitorum.

Jack Balkin American legal scholar

Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a research center whose mission is "to study the implications of the Internet, telecommunications, and the new information technologies for law and society." He also directs the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale Law School.

Social disruption is a term used in sociology to describe the alteration, dysfunction or breakdown of social life, often in a community setting. Social disruption implies a radical transformation, in which the old certainties of modern society are falling away and something quite new is emerging. Social disruption might be caused through natural disasters, massive human displacements, rapid economic, technological and demographic change but also due to controversial policy-making.

Bruce Arnold Ackerman is an American constitutional law scholar. He is a Sterling Professor at Yale Law School. In 2010, he was named by Foreign Policy magazine to its list of top global thinkers. Ackerman was also among the unranked bottom 40 in the 2020 Prospect list of the top 50 thinkers for the COVID-19 era.

Democratic legitimacy of the European Union

The question of whether the governance of the European Union (EU) lacks democratic legitimacy has been debated since the time of the European Economic Community in the late 1970s. This led in part to an elected European Parliament being created in 1979 and given the power to approve or reject EU legislation. Since then, usage of the term has broadened to describe newer issues facing the European Union. Voter turnout at the elections to the European Parliament fell consecutively at every election from the first in 1979 up to 2014 when it hit a low of 42.54%, before finally rising in 2019. The 2014 turnout figure is lower than that of any national election in the 27 countries of the European Union, where turnout at national elections averages 68% across the EU.

Steven Levitsky American political scientist (born 1968)

Steven Levitsky is an American political scientist and Professor of Government at Harvard University. A comparative political scientist, his research interests focus on Latin America and include political parties and party systems, authoritarianism and democratization, and weak and informal institutions. He is notable for his work on competitive authoritarian regimes and informal political institutions.

Authoritarianism is a form of government characterized by the rejection of political plurality, the use of strong central power to preserve the political status quo, and reductions in the rule of law, separation of powers, and democratic voting. Political scientists have created many typologies describing variations of authoritarian forms of government. Authoritarian regimes may be either autocratic or oligarchic and may be based upon the rule of a party or the military.

Kenneth P. Miller is a professor of Government at Claremont McKenna College, specializing in state politics, policy, and law. Miller is the Director of the Rose Institute of State and Local Government, a research institute known for its expertise in redistricting, elections, demographic research, and public policy analysis. He has written extensively on state politics and policy, direct democracy, constitutional law, courts, and political polarization. He is a member of the California State Bar Association and the American Political Science Association. He has been a visiting scholar at Princeton University's James Madison Program in American Ideals and Institutions (2011-2012) and Southern Methodist University’s John Goodwin Tower Center for Public Policy and International Affairs (2017-2018).

Gerrymandering in the United States Setting electoral district boundaries to favor specific political interests in legislative bodies

Gerrymandering in the United States has been used to increase the power of a political party. Gerrymandering is the practice of setting boundaries of electoral districts to favor specific political interests within legislative bodies, often resulting in districts with convoluted, winding boundaries rather than compact areas. The term "gerrymandering" was coined after a review of Massachusetts's redistricting maps of 1812 set by Governor Elbridge Gerry noted that one of the districts looked like a salamander.

Democratic backsliding Phenomenon where liberal democracies may gradually become authoritarian

Democratic backsliding or autocratization is the decline in the democratic characteristics of a political system: the opposite of democratization.

<i>How Democracies Die</i> 2018 book on democracy

How Democracies Die is a 2018 comparative politics book by Harvard University political scientists Steven Levitsky and Daniel Ziblatt about how elected leaders can gradually subvert the democratic process to increase their power. In 2021, The Economist described the book as the "most important book of the Trump era." The book, which offers stark warnings about the impact of the Republican Party and Donald Trump's presidency on U.S. democracy, influenced Joe Biden prior to his decision to run for president in the 2020 presidential election.

Daniel Ziblatt is an American political scientist and a professor at Harvard University with a research focus on comparative politics, democracy and democratization as well as the politics and political history of Western Europe. Since 2018 he has been Eaton Professor of the Science of Government at Harvard University. He is the author of the book Conservative Parties and the Birth of Democracy. In 2018, Ziblatt also published How Democracies Die with fellow Harvard professor Steven Levitsky. The book examines the conditions that can lead democracies to break down from within, rather than due to external events such as military coups or foreign invasions. How Democracies Die received widespread praise. It spent a number of weeks on The New York Times Best Seller list and six weeks on the non-fiction bestseller list of the German weekly Der Spiegel. The book was recognized as one of the best nonfiction books of 2018 by The Washington Post, Time, and Foreign Affairs.

Protect Democracy is a nonprofit organization based in the United States. A nonpartisan group, Protect Democracy seeks to check authoritarian attacks on U.S. democracy.

Democratic backsliding, also known as autocratization, is the decline in democratic qualities of a political regime.

Democratic backsliding in the United States American political phenomenon

Democratic backsliding in the United States has been ongoing since the 2010s, as part of the third wave of autocratization occurring in several countries around the world. According to constitutional law scholar Aziz Z. Huq, the primary causes of democratic backsliding are: "(1) the incomplete democratization of national institutions created in 1787; (2) a half century of rising inequalities in wealth, market power, and political influence; and (3) a resurgence of intolerant, authoritarian, white-ethnic identity politics associated with the Republican Party".

References

  1. 1 2 Pierson, Paul; Hacker, Jacob S.; Persily, Nathaniel, Editor (2015). "Confronting Asymmetric Polarization". Solutions to Political Polarization in America. Cambridge University Press. doi:10.1017/cbo9781316091906.003 . Retrieved January 6, 2019.{{cite web}}: |first3= has generic name (help)
  2. 1 2 3 Levitsky, Steven; Ziblatt, Daniel (2018). "How Democracies Die". Penguin Publishing Random house.
  3. Bernstein, Jonathan (December 4, 2018). "Constitutional Hardball Is Back. Look Out". Bloomberg.
  4. 1 2 3 Valelly, Rick (2018-04-08). "Trump Meets Political Science". Washington Monthly . Vol. April/May/June 2018. ISSN   0043-0633 . Retrieved January 7, 2019.
  5. Tushnet, Mark V. (2004) Constitutional Hardball, PDF 37 J. Marshall L. Rev. 523-553 John Marshall School of Law
  6. Glassman, Matt (December 11, 2018). "Republicans in Wisconsin and Michigan want to weaken incoming Democratic governors. Here's what's the usual partisan politics — and what isn't". The Washington Post . Retrieved January 16, 2019.
  7. 1 2 Levitsky, Steven; Ziblatt, Daniel (January 27, 2018). "How Wobbly Is Our Democracy?". The New York Times . ISSN   0362-4331 . Retrieved January 7, 2019.
  8. 1 2 Pozen, David (October 11, 2018). "Hardball and/as Anti-Hardball". Lawfare . Retrieved January 7, 2019.
  9. Lemieux, Scott (May 2018). "Democrats: Prepare to Pack the Supreme Court". The New Republic . Retrieved January 13, 2019.
  10. Matthews, Dylan (July 2, 2018). "Court-packing, Democrats' nuclear option for the Supreme Court, explained". Vox . Retrieved January 7, 2019.
  11. Melber, Ari. "What happens when losers of elections won't relinquish power?". The Washington Post .
  12. "Democracy's Undemocratic Transition of Power". Brown Political Review. 2020-12-10. Retrieved 2020-12-10.
  13. Yglesias, Matt (October 8, 2015). "American democracy is doomed". Vox . Retrieved January 19, 2019.