Constitutional Politics

THE PUZZLES AND POSSIBILITIES OF ARTICLE V

David E. Pozen* & Thomas P. Schmidt**

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar...

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein’s response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often “takes two” to play, both sides must be playing it in a similar manner. Shugerman’s response, on the other hand, helps combat the common fallacy of equating...

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have...

This Response addresses Professors Joseph Fishkin and David Pozen’s Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in “asymmetric constitutional hardball” since 1993. This Response accepts the authors’ contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.

Part I questions whether one of the authors’ primary examples...

ASYMMETRIC CONSTITUTIONAL HARDBALL

Joseph Fishkin* & David E. Pozen**

Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of consti­tutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican office­holders have been more likely...