Jogo Duro Constitucional

Abstract

This essay develops the idea that constitutional hardball designates a distinctive political practice: the use of initiatives that fall within the plausible boundaries of existing constitutional doctrine, but that are incompatible with the pre-constitutional understandings that make the ordinary operation of constitutional government possible. Drawing on examples such as filibusters of judicial nominations, electoral redistricting, presidential impeachment, New Deal legislation, and Marbury v. Madison, I argue that constitutional hardball tends to emerge in periods of constitutional transformation, when political actors perceive that what is at stake is not merely an episodic political victory, but the establishment of a new constitutional order. The argument connects these practices to partisan entrenchment, the reconfiguration of institutional arrangements, and the role of courts in moments of transition.