“Constitutional Hardball”, Mark Tushnet2004 (law, sociology)⁠:

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a “constitutional order”.

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. 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.