This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional hardball, Shugerman's distinction between hardball and "beanball" provides a useful starting point for theorizing the conditions under which constitutional hardball may be more or less justified as a matter of political and constitutional morality.
Joseph Fishkin & David E. Pozen,
Evaluating Constitutional Hardball: Two Fallacies and a Research Agenda,
Columbia Law Review Online, Vol. 119, p. 158, 2019; Columbia Public Law Research Paper No. 14-621
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