Constitutional Beanball

by: Paul Rosenberg

Sun Jan 24, 2010 at 16:00

In my book, the Supreme Courts' Citizens United decision was a perfect example of Constitutional Beanball.  What do I mean by "Constitutional Beanball"?  It's a heightened variation on a term introduced by in 2003 by constitutional law professor Mark Tushnet, then of Georgetown, now of Harvard, in a law review article simply titled, "Constitutional Hardball", which he explained thus in the paper's abstract:

This Essay develops the idea that there is a practice called constitutional hardball. The practice has three characteristics: it involves arguments and behavior by political actors (including judges, although their role is less interesting than that of other political actors) that are defensible - though sometimes only barely so - by standard constitutional doctrine; it is inconsistent with settled pre-constitutional understandings; and it involves extremely high stakes (control over the national government as a whole). I argue that constitutional hardball occurs when political actors see the chance for a permanent transformation of the constitutional order.

Specifically, it attempts to describe how "common sense" is contested and redefined, which is one of key aspects of hegemonic struggle.  However, two other constitutional scholars, Jack Balkin and Sanford Levinson, had previously articulated a more robust and far-reaching analytical framework covering related territory in their 2001 article, "Understanding the Constitutional Revolution", a work that began by directly referencing Bush v. Gore.  At his website just above the link to the article, Balkin describes the article thus (emphasis added):

For the past decade the Supreme Court has led a revolution in constitutional doctrine in the areas of federalism, civil rights, religious liberty, and property rights. This article describes the nature of the revolution and the directions it might go. It offers a theory of "partisan entrenchment" through Presidential appointments to the judiciary to explain why constitutional revolutions occur and the sources of their legitimacy. Debates over constitutional revolutions are debates over competing visions of the country which cannot be resolved by ordinary norms of legal craft. Nevertheless, the procedural irregularities of the 2000 Election and of the Supreme Court's decision in Bush v. Gore seriously undermine the legitimacy of the current constitutional revolution. The same five Justice majority that decided the key cases producing the current constitutional revolution used the power of judicial review to install a President who would be most likely to make judicial appointments to further that revolution without sustained support from the American electorate. The decision, therefore, represents an illegitimate attempt by the five Justice majority to secure its own preferred successors. The only practical way to exhibit opposition to the Court's decision, given the majority's self-conscious attempt to limit the doctrinal reach of Bush v. Gore to the specific facts of the 2000 presidential election, is to encourage the Senate to exercise to its powers of "advise and consent" to resist the further entrenchment of judges who will carry out the revolution. Given the structure of the American Constitution, the ultimate fate of the constitutional revolution and of Bush v. Gore will be decided through electoral politics.

As described by Wikipedia, at the time of my Jan, 2008 diary, Will The Real Culture War Please Stand Up???:

Gramsci did not contend that hegemony was either monolithic or unified. Instead, hegemony was portrayed as a complex layering of social structures. Each of these structures have their own "mission" and internal logic that allows its members to behave in a way that is different from those in different structures. Yet, as with an army, each of these structures assumes the existence of other structures and by virtue of their differing missions, is able to coalesce and produce a larger structure that has a larger overall mission.

The abstract of this article begins:

This essay develops and refines our theory of constitutional change and constitutional revolutions, and applies it to the constitutional events of the last five years. We argue that constitutional change and constitutional revolutions occur through a process called partisan entrenchment, in which Presidents appoint judges and Justices to the federal judiciary who are thought to share the broad political agenda of the political party led by the President. When presidents are able to appoint enough such judges and Justices, constitutional doctrines start to change. The pace of change is faster if many appointments are made in a comparatively brief period of time.

Courts' development of constitutional doctrine occurs within the broader framework of changes in constitutional regimes, which include changes in institutions, legislation, and administrative regulation. These changes are driven by the forces of democratic politics, and the major actors are the political branches. Although courts may initially resist these changes, in the long run they cooperate with them, define their contours, and legitimate them.

Of course, the fact that changes are driven by democratic politics doesn't mean that courts express the popular will.  Even elections do not reliably do that, and judicial appointments rarely figure much in why people vote as they do.  Moreover, by their very nature, liberals are less authoritarian and doctrinaire, and thus less likely--having won elections--to go about deliberately packing courts to carry out an ideological agenda.  FDR's court-packing threat in response to repeated vetoes of his New Deal legislation was the exception that proves the rule. It was a sort of "last straw" response.  In contrast, the modern conservative movement focused on the notion of systematically expunging liberals and packing the courts with conservatives from its very beginnings, and it has used profoundly disingenuous narratives ("judicial restraint" vs. "judicial activism", "original intent", etc.) as well as highly questionable doctrines, and arbitrary decisions to advance its cause.

A sort of spin-off of this earlier work is presented in their 2009 law review article, "Constitutional Crises", also available online in a 2007 pre-publication form, "The Types of Constitutional Crises".  In the abstract to the published version, they write:

In popular discussion, the term constitutional crisis is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.

The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly - even if people strongly disagree with each other and threaten each other - there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight.

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used - or threatened - in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

Balkin & Tushent's Approaches Compared--With Analogies To Thomas Kuhn & Abraham Maslow

The Balkin/Levinson approach and Tushnet's approach come into focus together in Balkin's 2008 paper, "Constitutional Hardball and Constitutional Crises", which the abstract describes thus:

This essay, written for a conference in honor of Mark Tushnet, discusses Tushnet's concept of constitutional hardball: political claims and practices devised by a political party or movement that are high stakes and designed to alter the existing order's power relations. If successful, they will shift political power to the victors and entrench it for some considerable period of time.

In contrast to Tushnet, I argue that constitutional hardball is not limited to periods of transformative politics, but rather occurs throughout American history. That is because attempts at transformative politics are always bubbling up. Ascendant political movements may try to change the existing order and fail. More likely, dominant political parties and political movements within the existing constitutional order may try to extend and further entrench their power, leading to defensive maneuvers by the other side. Indeed, people are most likely to push the envelope when they are already most empowered within the existing constitutional order. Thus, we should say that constitutional hardball involves attempts to change the constitutional order or to extend and further entrench it. Many, if not most, of these attempts will fail, and so, in hindsight, we will describe the period in which they occurred as one of normal politics.

The second half of the essay compares constitutional hardball with Sanford Levinson's and my theory of constitutional crises. Constitutional hardball is closest to what we call Type Three crises, in which contending sides claim to be faithful to the Constitution and are willing to go outside the boundaries of ordinary politics to press their claims. But not all such crises involve constitutional hardball, and, equally important, not all examples of constitutional hardball produce constitutional crises. In fact, there may be many examples of stealth constitutional hardball, which fly below the radar of public recognition.

Although constitutional hardball does not help us separate transformative periods from normal periods, the concept is still useful precisely because it helps us understand how periods of constitutional normalcy are actually special cases of periods of constitutional transformation.

There was Balikin/Levinson-like alternative at the time, though it was entirely ignored by those who became involved in the debate.  This came from humanistic psychology's foremost theorist, Abraham Maslow, in his 1966 book, Psychology of Science: A Reconnaissance.  Building on his own hierarchy of needs, as well as direct observation of how scientists actually work, Maslow distinguished between "safety science" primarily oriented toward building an edifice of irrefutable facts, and "growth science" primarily oriented toward answering big questions.  This distinction actually echoed a much earlier distinction by William James between what he identified as two opposite imperatives: "seek truth" vs. "shun error", both of which James argued, had their place, but lead to distinctly different types of behavior.  While Kuhn had argued that revolutionary science only appeared when "normal science" broke down, Maslow argued that growth science and safety science were always being practiced side-by-side, though it was entirely possible that those practicing growth science might abandon some field as unpromising.  Nonetheless, the point was that there was nothing abnormal about growth science, it was part of the normal scientific process, just as Balkin/Levinson argue that constitutional hardball is to be found during periods of normal politics, often passing without notice.

Constitutional Beanball, And A Helping Of Abstract Analysis

All the above finally brings us to my notion of constitutional beanball, which recognizes the potential normalcy of Tushnet's concept, as well as the greater generality of the Balkin/Levinson theory, but still sees the sense in recognizing particular acts of lawless, power-grabbing audacity.  Hence, "constitutional beanball."  Dred Scott was one such example, Plessy another, Santa Clara County v. Southern Pacific Railroad (creating corporate personhood out of thin air) is another, Bush v. Gore yet another, and finally Citizens United another still.  In claiming the existence of such a class of cases, I am not claiming  that there are no grey areas of cases one could dispute. Indeed, I'm explicitly claiming that constitutional beanball belongs within the comprehensive Balkin/Levinson framework, even as it preserves Tushnet's sense that some moves are truly outside the norms that govern others.

How can both of these things be true?  Consider the analogy of the mathematical concept of integration.  Since math is an almost contentless expression of the structure of human thought (for insight into its content, see Where Mathematics Comes From, co-authored by George Lakoff), examples from mathematics, properly chosen can illuminate conceptual relationships that may seem incredibly muddled otherwise, and such is the case here, I believe.  Simply put, integration is the process of finding the area under a curve.  Doing this involved the process of taking small pieces of the curve, and cutting them into smaller and smaller pieces, and discovering a limit value that they approach. Over a period of centuries the practice of integration generally preceded the theory, eventually resulting in two different theoretical constructs, Reimann integration (first explained in 1954) , which cut the pieces along the x-axis (top below). and Lebesgue integration, which cuts pieces along the y-axis (bottom:  

The Lebesgue integral is generally superior (although there are some functions that are Reiman integrable,but not Lebesgue integrable).  The reason has to do with taking limits of functional series, which lead to unusual-seeming functions which turn out to be far more common than "normal functions".  The classic example of this is the Dirichlet function, which is zero for every rational number, and one for every irrational.  Because every rational is surrounded by infinitely many irrationals, and vice-versa, it's impossible to take a limit along the x-axis, which is necessary for a Reimann integral.  Such functions are called "non-differentiable".  But the number of rational numbers is a countable infinity, while the number of irrationals is uncountable.  Lebesgue was able to show that eliminating a countable infinity of points from a function did not change the value of an integral using his definition, thereby allowing a infinitely larger class of funcitons to be integrated.

The analogy here is not perfect, but strongly suggestive-one can think of Reimann integration as conceptually akin to Tushnet and Kuhn's approach, and Lebesgue integration as conceptually similar to Maslow and Balkin/Levinsons.  But there's more to the story.  Around 1930, the legendary mathematical physicist Paul Dirac came up with what's known as "Dirac's Delta Function", which technically speaking was not a function at all.  It was defined as having the value of zero everywhere, except at one point, and having an integral of one. This function was necessary for the math to describe certain phenomena, but no real function can have this property.  However, a series of functions can come arbitrarily close to looking like this function.  That was good enough for Dirac, and good enough for the physics community, but it took another two decades for the mathematicians to come up with a rigorous framework to explain it.  Although not identical to Lebesgue integration, the spirit of the new integral was very much the same, only with a broader conceptual scope.

So, one can think of my notion of constitutional beanball as analogous to Dirac's Delta Function.  It may or may not clash with Balkin & Levinson in the short run, but it's fully in keeping with the spirit of their approach.

Beanball & Hardball Compared

Now, one last piece of clarification about how constitutional beanball differs from constitutional hardball.

Here are two passages from Tushnet's "Constitutional Hardball" article.  First, his introduction of the concept:

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.

And later in the text and a footnote, Tushnet notes:

I have described constitutional hardball as a strategy rational
politicians adopt.25

....

25 Louis Michael Seidman has suggested to me that there is another form of constitutional hardball, which he believes is more important. In the alternative version, politicians play constitutional hardball out of an essentially irrational belief that their political opponents are so deeply wrong that their continuation in office, or the possibility of their becoming dominant, is a threat to everything for which the nation stands. Seidman points to the impeachment example, where the Republicans in the House of Representative must have known that they had no chance of removing Clinton from office (and that, if they did, they would get Al Gore in his place). My argument, that the House Republicans had an eye on the 2000 presidential elections, seems strained to him. Seidman and I agree that both forms of constitutional hardball might well occur.

In addition to the original definition, illustrated by a deliberatly small number of examples, I would distinguish constitutional beanball from constitutional hardball in two ways:

(1) Tushnet says that constitutional hardball is "without much question within the bounds of existing constitutional doctrine and practice".  This is not necessarily true of constitutional beanball.  In fact, one may find striking evidence to the contrary.  While there will certainly be a pretense that what Tushnet says is true, the reason for this is along the lines of what Balkin and Levinson say about Type I and Type II crisis, and why there's such a strong tendency to recast them as Type III crises.

(2) The simplistic notion of a clear-cut rational/irrational distinction is irrelevant to the concept of constitutional beanball. Conservatives don't think the same way that liberals do.  What's "rational" for them is sometimes sheer lunacy.

With all that in mind, the floor is now open for questions.

In Part II, I will bring all this down to earth, and explain how it helps explain what's wrong with "liberal" defense of the  Citizens United decision.