Episode 3 of the University of Miami School of Law's Constitutional Crisis Seminar features features Mark Tushnet, William Nelson Cromwell Professor of Law, Emeritus, at Harvard Law School. He is one of the giants of legal theory in the US academy. His extensive career ranges from clerking for Supreme Court Justice Thurgood Marshall to his current status as a professor at Harvard Law. He has made major contribution to the study of constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world, and the creation of other “institutions for protecting constitutional democracy.” He has written extensively in legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s. Of note is his important work in the Critical Legal Studies movement—first in helping form the theory, then in both explaining it to the legal community, and also in some cases providing internal critique and exposition. Currently Professor Tushnet is working on several short pieces on authoritarianism and the law.

In this lecture, Professor Tushnet outlines the concept of “Constitutional Hardball” – something perhaps distinct from a ‘constitutional crisis’ -- a concept he first identified, and then developed in conversation with Jack Balkin, Sandy Levinson, and others.

Mark Tushnet outlines his theory of constitutional hardball. The key concept is that many constitutional practices are based on long-standing norms, not constitutional text. These norms can change and evolve, especially in periods of stress. And Presidents seeking to advance their agendas can push past limits set by norms without necessarily violating any written constitutional provisions. The tendency is that when a norm breaks to serve the interest of one political party, even when a different party takes power the norm is rarely if ever restored—although Tushnet notes that an exception is the two-term limit for Presidents, which was a tradition started by George Washington and then broken by Franklin Delano Roosevelt—only to be restored via the 22nd Amendment.)

Critically, while hardball pushes legal limits, and may involve controversial or disputed interpretations of Constitutional law, it clothes itself (arguably justly) in legality. Professor Tushnet argues that, so far at least, most of the Trump administration’s controversial actions are hardball; he therefore questions whether calling our current moment is not most usefully termed a ‘Constitutional crisis’.

Indeed, constitutional hardball is not, he argues, inherently bad. It can be a way to adapt a governmental structure to changing times and urgent needs. In normal times, the risk that once it gets into power the other party will exercise new power claimed by the executive also serves as a check, a form of tit-for-tat as described in game theoretic solutions to the prisoner’s dilemma. To the extent that the executive overreaches anyway, we have multiple mechanisms to push back including pressure from civil society, electoral pressure, and especially pressure or even noncompliance by states as they have great influence in a federal structure.