Constitutional Hardball by Kagro X / Daily Kos

[Demeter]

http://www.dailykos.com/storyonly/2007/4/7/192112/0900

Constitutional Hardball by Kagro X

Sun Apr 08, 2007 at 03:44:50 PM PDT

Whenever I'm looking to put the political plays of the Bush "administration" in long-term context, I point people to "Constitutional Hardball," (PDF) a law review article written by Georgetown Law Prof. Mark Tushnet. I think it's a real eye-opener for those who might otherwise advocate simply waiting out the Bush gang, and "fixing" the problems they've created at the ballot box.

What is constitutional hardball?

A shorthand sketch of constitutional hardball is this: It consists of political claims and practices -- legislative and executive initiatives -- that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.3 It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.... By this I mean the "go without saying" assumptions that underpin working systems of constitutional government. They are had to identify outside times of crisis precisely because they go without saying. (An alternative term would be conventions.)

How do you know when it's happening? ....Tushnet's article dates from 2003. How might we illustrate the concept of constitutional hardball today? Would we conclude that the Bush "administration's" assertion of broad, unconstrained executive power -- including the power to abrogate federal law (like FISA) -- constitutes an example? How about this "administration's" understanding and use of signing statements, no longer used merely as markers denoting the President's position on matters of constitutional law, but rather as policy directives to the entirety of the executive branch as to how to interpret and execute the law? The novel concept, driven by Tom DeLay (with Jack Abramoff's money), that Republican-controlled states could and should redraw their Congressional districts in between the accepted ten year intervals, purely for partisan advantage? The application of political litmus testing to the appointment of U.S. Attorneys? The White House's assertion that its senior officials are not subject to the subpoena power of the Congress?

Or perhaps the Military Commissions (read: Torture) Act?
So what does it look like to lose a "game" of constitutional hardball?
U.S. Attorneys replaced -- without Senate advice and consent -- according to partisan litmus tests?
Huge and lopsided tax cuts for the "base?" The enormous shift of federal grant resources from community-based to "faith-based" organizations?
...Further, those who control one component of the government try to leverage that control into taking control of other components....
Mid-census, partisan redistricting plans approved by Justice Department political operatives despite unanimous opposition from career civil servants in the Voting Rights section?
Federal and local law enforcement using "enhanced powers" of surveillance to infiltrate and undermine opposition activists?
The use of highly politicized U.S. Attorneys' Offices to strategically prosecute local Democrats?


The stakes are high when politicians play political hardball, that is, because the politicians believe that the winners might end up with permanent control (meaning, control for the full time-horizon of today's politicians) of the entire government. The winner of constitutional hardball takes everything, and the loser loses everything.


So, what do you say, folks? Shall we bide our time and rely on the courts to fix it all for us? Will oversight and exposure of the Nixon/Bush doctrine be enough? Will Americans finally and miraculously simply awaken to the realities of constitutional transformation? Did the Clinton impeachment really make us so afraid of the process itself that it should be considered unavailable to us in combating the constitutional-level game undertaken by Republicans? Is this really something we can actually debate our way out of? Can we really afford to head into 2008 under the banner of "bipartisan cooperation?"