Counter-Majoritarian Constitutional Hardball

Robinson Woodward-Burns

This Essay defines and describes counter-majoritarian constitutional hardball. Counter-majoritarian constitutional hardball occurs when legislators bend lawmaking rules to win a legislative majority without winning an electoral majority. Counter-majoritarian constitutional hardball is a specific type of constitutional hardball. Constitutional hardball describes the manipulation of lawmaking rules for partisan gain. Hardball bends lawmaking norms without breaking overt constitutional rules. Lawmakers use hardball tactics to durably entrench their party’s institutional power. These measures are therefore often baldly partisan. Hardball lawmaking can also entail a tit-for-tat pattern—when one party bends procedure, the other will do the same in reprisal, eroding constitutional rules.