Journal Article•
The Political Battle for the Constitution
22 Dec 2004-Constitutional commentary (University of Minnesota Law School)-Vol. 21, Iss: 3, pp 641-696
About: This article is published in Constitutional commentary.The article was published on 2004-12-22 and is currently open access. It has received 14 citations till now. The article focuses on the topics: Battle & Constitution.
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TL;DR: This article traced the development of a longstanding tradition of Supreme Court scholarship within political science (the "regime politics" literature) and its recent migration to the legal academy, focusing on recent books published by Michael Klarman, Mark Tushnet, and Jeffrey Rosen.
Abstract: Focusing on recent books published by Michael Klarman, Mark Tushnet, and Jeffrey Rosen, this article traces the development of a longstanding tradition of Supreme Court scholarship within political science (the "regime politics" literature) and its recent migration to the legal academy. These recent books provide illuminating accounts of the Court’s relationship to the broader political system, and they collectively represent a significant improvement over conventional legalistic accounts of the Court’s decision-making. Nevertheless, in borrowing so heavily from the regime politics tradition, these legal scholars have exacerbated two problems which have been present in that literature from the beginning.
35 citations
Posted Content•
TL;DR: For example, the authors argues that the practice of constitutional hardball has followed a similar trajectory in recent decades: the Republican Party has moved significantly further to the right than the Democratic Party has move to the left.
Abstract: Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity.
After defining constitutional hardball and defending this descriptive claim, this Essay offers several overlapping explanations. Asymmetric constitutional hardball grows out of historically conditioned differences between the parties' electoral coalitions, mediating institutions, views of government, and views of the Constitution itself. The "restorationist" constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party's use of constitutional hardball.
Finally, and more tentatively, this Essay looks to the future. In reaction to President Trump, congressional Democrats have begun to play constitutional hardball more aggressively. Will they close the gap? Absent a fundamental political realignment, we submit that there are good structural and ideological reasons to expect the two parties to revert to the asymmetric pattern of the past twenty-five years. If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.
31 citations
TL;DR: In this article, a presidential-focused political regimes model is used to understand when and what types of nominees are likely to face the most resistance in the Senate confirmation process for U.S. Supreme Court appointments.
Abstract: Before the nominations of John Roberts and Samuel Alito, scholars consistently pointed to the presence of divided government as an underlying reason for conflict in the confirmation process for U.S. Supreme Court nominees. However, the importance of party unity and coalition-building appointments—each of which highlights the role of the president in the process—should not be underestimated in these confirmation battles. Moreover, an examination of the sixty twentieth-century nominations reveals that a presidency-focused political regimes model provides significant explanatory force for understanding when and what types of nominees are likely to face the most resistance in the Senate. It does so by incorporating Stephen Skowronek's analytical framework for understanding presidential authority to explain how and why different periods of political time affect presidential attempts to shape the U.S. Supreme Court through appointments. In turn, the model places recent conflict in the confirmation process in historical context.
24 citations
Book•
30 Apr 2019TL;DR: For instance, the authors traces the history of American political parties from the Hamiltonian Federalists and Jeffersonian Republicans of the 1790s to the liberal Democrats and conservative Republicans of today, showing how changing party control of government institutions such as Congress, the presidency, and the Supreme Court, influences how party ideologies develop.
Abstract: This groundbreaking book challenges the dominant view of ideology held by both political scientists and political commentators. Rather than viewing ideological constructs like liberalism and conservatism as static concepts with fixed and enduring content, Professor Verlan Lewis explains how the very meanings of liberalism and conservatism frequently change along with the ideologies of the two major parties in American politics. Testing a new theory to help explain why party ideologies evolve the way that they do, this book traces the history of American political parties from the Hamiltonian Federalists and Jeffersonian Republicans of the 1790s to the liberal Democrats and conservative Republicans of today. Ideas of Power shows us how changing party control of government institutions, such as Congress, the presidency, and the Supreme Court, influences how party ideologies develop.
14 citations
Posted Content•
TL;DR: The authors traced the development of a longstanding tradition of Supreme Court scholarship within political science (the "regime politics" literature) and its recent migration to the legal academy, focusing on recent books published by Michael Klarman, Mark Tushnet, and Jeffrey Rosen.
Abstract: Focusing on recent books published by Michael Klarman, Mark Tushnet, and Jeffrey Rosen, this article traces the development of a longstanding tradition of Supreme Court scholarship within political science (the "regime politics" literature) and its recent migration to the legal academy. These recent books provide illuminating accounts of the Court’s relationship to the broader political system, and they collectively represent a significant improvement over conventional legalistic accounts of the Court’s decision-making. Nevertheless, in borrowing so heavily from the regime politics tradition, these legal scholars have exacerbated two problems which have been present in that literature from the beginning.
13 citations