Interesting article by Paul Rosenberg in today's Salon about how and why Conservatives play constitutional hardball not as a tactic of last resort, but as guerrilla warfare tactics that are their fundamental m.o. in day-to-day politics. The phrase "constitutional hardball" comes from Mark Tushnet, who wrote an article in 2004 with the same title. Rosenberg quotes Tushnet here:
“…constitutional hardball is the way constitutional law is practiced distinctively during periods of constitutional transformation,” such as that which occurred during the New Deal. Constitutional transformations replace one constitutional order with another one, each involving a set of assumptions about fundamental institutional arrangements, “the relations between President and Congress, the mechanisms by which politicians organize support among the public, and the principles that politicians take to guide the development of public policy.”
As one illustrative example, Tushnet notes:
[P]rior to the New Deal, Congress initiated legislation subject to modest review by the President, whereas after the New Deal the President initiated legislation subject to modest review by Congress. And, during the transformative period when Franklin D. Roosevelt was attempting to construct a new constitutional order, his efforts to seize the legislative initiative were understood to be challenges to settled pre-constitutional understandings about the relation between President and Congress–and, as such, revolutionary.
While constitutional transformations may often occur relatively rapidly, this need not be case, Tushnet argues. In fact, he believes, “the concept of constitutional hardball does seem to describe a lot of recent, that is, post-1980, political practices. The reason, I believe, is that we have been experiencing a quite extended period of constitutional transformation.” The result is an “extended period in which political leaders played constitutional hardball. Indeed, it might come to seem as if constitutional hardball was the normal state of things rather than a symptom of the possibility of constitutional transformation. Transformation might seem like an ever-receding light at the end of the tunnel, and constitutional hardball the way politicians play day-to-day politics.”
Then toward the end of the article Rosenberg explains why these days conservatives have made it their day-to-day politics:
This begins to get at one of the ways in which both sides are not mirror images in this fight. Millhiser is right to point out that structural, systemic features of our political system can have generally symmetric destabilizing effects—in a similar vein, Tushnet points out that either side (ideology) or party can engage in constitutional hardball. But there are reasons why conservatives and Republicans are far more likely to engage in it, with a much deeper passion and long-term commitment. The broad popularity of the New Deal vision is one underlying factor. It causes conservatives to rely on a great deal more indirection and deceit in their politics, and it makes them far more conscious of how tenuous their hold on power is, making them all the more ferocious in hanging on to it. Although Tushnet uses a different language, one could make the same point in terms of his observation about how the GOP/conservative constitutional transformation remains in limbo.
As the nomination debate swirls, there have been immediate calls in several quarters—from liberals like Rachel Maddow as well as from centrists—for Obama to appoint a moderate, centrist “consensus” candidate. Millhiser rightly shows that such hopes are ill-founded, if this is supposed to make matters easier, but it does reflect a genuine difference between the two sides. There is a consistent constituency for moderation and compromise on the Democratic side, a view commonly held in contempt by Republicans. They have concluded that Roberts is a traitor, to be used in attacks on one another on the campaign trail, because he failed the talk-radio zealotry test on Obamacare.
In other words the GOP Right sees itself as guerrillas fighting what it understands to be an asymmetrical battle with a monstrous Liberal establishment. It's as if they are animated by a kind of Star Wars fantasy: They are the intrepid lovers of freedom doing whatever it takes to push back against the godless Liberal Evil Empire, and they have the Force with them because they are fighting God's fight. It doesn't matter that this fantasy has little basis in reality; there's just enough evidence to support it so that any evidence that contradicts it can be dismissed. And it's important for sane people to understand that when you are dealing with collectively deluded people who believe that they are fighting for their survival against the forces of Evil, then anything they do to survive is justified. Ted Cruz is their standard bearer of the moment.
It's hard to see a way out of this impasse. The only way things change is if the delusion is burst somehow, but it's self-reinforcing in a way that makes that virtually impossible. If I have reason to hope this can be resolved, it's that I'd estimate that only about about a quarter of the American electorate is possessed by this delusional complex. This delusional twenty-five percent has more power in the political system than its numbers warrant because the people in it have a robust political fantasy that keeps them engaged in a way that those in the center or on the Left just don't. They are therefore purpose driven in a way that factions to their left are not.
But here's one imagined path out of the impasse: I'd rough estimate that another quarter of the American electorate leans right, especially when it comes to customary or traditional values, but this conservative-ish sector is not infected by this delusional Star Wars freedom-fighter fantasy. It is culturally conservative because that's the kind of world the people in this sector grew up in. But they are hurting economically, and establishment politicians of either party have not given them a reason to think either cares about their interests, so they vote Republican because they feel more comfortable with cultural conservatives. These are the so-called Reagan Democrats: urban ethnic Catholics, Appalachians, the ex-urban and rural working poor everywhere. We find a route out of the impasse by finding a way to realign the American electorate by peeling off the non-delusional twenty-five percent from the coalition they loosely form now with the delusional twenty-five percent. It's this coalition that wins so many elections for the GOP. But you need to do more than peel them off: you need to mobilize them, and to mobilize them, you need to get them excited.
If we have learned anything over the last twenty years or so, the establishment Democratic Party does not excite this sector of the electorate. It doesn't excite anybody, really, even so many people who vote Democratic (most Democrats?) because it's the lesser evil. If Democrats have won, they've won with personalities not with policies. And the problem with Hillary right now is that she doesn't have that winning personality. She's not her husband, she's not Obama, she's not Elizabeth Warren. She's not Bernie. She's just annoying. If she wins, we remain in the impasse until 2024. The ideal scenario for me would be for Bernie to win, step down after his first term for age reasons, and hand off to Elizabeth Warren.
So does Bernie offer a route out of the impasse? Or does he just create a bigger one? Is the socialist label a deal breaker for too many in that non-delusional twenty-five percent? I don't know for sure, but I do know his message, his personality, and his biography are all capable of getting people who have felt alienated from the political process mobilized. How far that excitement extends to those in the non-delusional twenty-five percent, I'm not sure, but I think he has a better shot at reaching them in an energizing way than Clinton does. Whether once in office he knows how to direct a broad, mobilized electorate to de-legitimate the delusional twenty-five percent is an open question, but he at least understands that's the challenge.
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