Nate's 3 rules for constitutional hardball
A “democracy agenda” should be principled, create a stable equilibrium, and pass muster with voters.
This has been one of those weeks when the hard-working Silver Bulletin staff has devoted most of its hours to some longer-term features — most importantly, the midterm and World Cup models1 — and several of the articles we have planned are in a state of half-finishedness. When this sort of thing happens, it can be easy to feel a sense of substackschuld — the German word for the guilt felt for not having published a newsletter for several days (OK, I made that up).
Giving in to substackschuld sometimes just perpetuates the problem by pushing back everything else on your to-do list. So this was supposed to be a short newsletter that just posted the video of the show Galen, Clare, and I did at Comedy Cellar on Wednesday night (you can find that at the very end). But I talked myself into a full article after reading this excellent post by friend-of-the-newsletter Matt Glassman on “constitutional hardball”.
What is constitutional hardball?
Glassman defines “constitutional hardball” as “using political tactics and strategies that are thoroughly legal under the constitution but flout the basic assumptions about the rules that we all agree upon”: in other words, things that are technically legal, but which violate democratic norms. An example might be Virginia Democrats changing the retirement age for the state supreme court, enabling them to appoint an entirely new court and presumably to overturn the court’s decision to block the state’s redistricting referendum.
Virginia Democrats have abandoned that effort, to which I say, good: I argued at the live show that I really disliked the plan. It felt like a violation of norms: too much of an escalation, the sort of thing that Democrats would blast as exceptionally undemocratic if Republicans did it, for frankly too little gain (just a couple of seats in the House for two years).
And norms matter. Often, they do most of the work. This is not a perfect heuristic, but in any sort of long-term relationship, it’s usually a bad sign when you have to “look at the contract” instead of counting on both sides to just behave “reasonably”.
But what constitutes “hardball” and what’s going “too far” isn’t so straightforward. As you may have noticed, democratic norms have been severely weakened in the United States, and President Trump has not exactly shown much respect for the Constitution.
Were Republicans playing hardball when they threatened to breach the debt ceiling to extract concessions out of Barack Obama? When they refused to hold a confirmation vote on Merrick Garland? When Texas Republicans kicked off a mid-decade redistricting war last summer? I’ve chosen these three examples because the first two preceded Trump, and the last one sort of does: Texas Republicans did basically the same thing under George W. Bush in 2003. This isn’t entirely a new problem or a Trump problem.
The golden rule of constitutional hardball
And what about some of the ideas Kamala Harris floated this week in what she called a “no-bad-idea brainstorm”? Such as adding Puerto Rico and Washington, D.C. as states, or expanding/packing the Supreme Court?
For his part, Glassman — who lives in Virginia and voted against the state’s redistricting amendment out of a sense of principle — is on board with gerrymandering reform and with new states2, but not with court packing. For the most part, I share his intuitions.
But “intuitions” is exactly what they are. Other than finding some way to end the insanity of the current gerrymandering/redistricting prisoner’s dilemma, I don’t think any of these are easy calls, exactly. Puerto Rico and D.C. statehood seem fine/good to me, but I don’t feel that way about the occasional proposals to divide California (or on the GOP side, Texas) into several states. Then again, state boundaries are hardly sacred: there really don’t need to be two Dakotas, and creating them was an explicitly partisan move.
Meanwhile, you can argue that expanding the court would be a tit-for-tat maneuver for the Garland thing — though a more precise and reciprocal retaliation would be Democrats refusing to confirm a Republican president’s nominee should they control the Senate during a GOP presidency. A situation that has roughly a 50/50 chance of coming into play after the midterms, by the way.
Even as someone who thinks of himself as a principled guy, I don’t think there’s necessarily anything wrong with inductive moral reasoning, meaning that you look at the edge-cases (“this feels right, but I don’t think this is OK”) and “work backward” to impute some general principles from them. The better approach, though, usually involves some synthesis of inductive and deductive reasoning: you look at the edge cases to help define the rules, but then consider how the rules would define the other edge cases, and so on until you converge on a point of some coherence. (This all feels weirdly intuitive to me because it’s very similar to the process of creating a statistical model. You neither want to overfit a model (doing too much “gerrymandering”, if you will, around the edge cases) or to underfit one by failing to capture key features of the system.3)
But probably I’m abstracting this too much. Glassman proposes this test of when something constitutes undesirable constitutional hardball:
This can get quite messy, but here’s a rough shorthand test: do you favor instituting your reform when the other side is in power or will otherwise benefit, or only when you are/will? If it’s the latter, that’s a good sign that it’s not a neutral reform, and not likely to be productive in a non-partisan, democracy affirming and republic-strengthening sense.
I like Glassman’s test, but I’d extrapolate a half-step beyond. We might ask: what is the equilibrium that emerges if both sides reciprocate, which they almost inevitably will? Is it a stable equilibrium or one that would potentially oscillate out of control? Or in a more formal philosophical sense, what is the categorical imperative?
If Democrats were to add two new Supreme Court justices, Republicans would probably do the same the next time they held a trifecta. The equilibrium would be that: 1) whenever a party won a trifecta, they’d also gain control of SCOTUS and 2) a Supreme Court with dozens (eventually hundreds, thousands, etc.) of justices. I’m not sure how stable that is, and that certainly doesn’t feel right if you believe in any sense of checks and balances.
Or, what is the equilibrium that emerges from totally unconstrained mid-decade redistricting? It’s basically that the U.S. House becomes a sort of version of the Electoral College. Whenever a party wins a state trifecta, they rejigger congressional boundaries until they control all or nearly all of the districts in a state.
That bothers me slightly less. The lack of representativeness in the House and the lack of competitive districts are major negatives, but I can imagine this norm changing without really threatening the integrity of the Constitutional system. It at least still has an electoral mechanism, in that you have to win state-level elections to enact your maximalist plan.4 And for better or worse, it’s the equilibrium we’re headed toward anyway until and unless either Congress takes action on gerrymandering or SCOTUS does (and the current SCOTUS isn’t going to). Incidentally, such an equilibrium would not necessarily be bad for Democrats, provided they’re just as aggressive about redistricting as Republicans are, including in their own majority-minority districts.
A “democracy agenda” should be popular
Still, whenever I see a partisan Democrat proposing to fight back by any means necessary — including by doing things like kicking Virginia’s current supreme court out of office — I’m reminded that the parties aren’t in perfectly symmetrical positions.
For one thing, Republicans get to play as the home team because of the current composition of the court. For another, Democrats, especially in their past three presidential campaigns, really emphasized the point that they were the party that stood for norms, institutions and democracy in general. One tactical advantage that Trump has is that he’s so flagrantly hypocritical that nobody expects him to be anything other than self-dealing. Democrats are threading more of a needle.
Do Democrats at least get any political mileage out of their messaging around democracy? Maybe. In 2024, Kamala Harris beat Trump 80-18 among the roughly one-third of the electorate who cited “democracy” as their most important issue. Then again, voters sometimes reason backward on this sort of poll question5 — and Harris lost. Then again, it’s hardly surprising that Trump won given record-setting levels of both immigration and inflation, the whole Biden fiasco, and the generally unpopular position of incumbents around the world — and Trump is now super unpopular.
So here’s a proposed tiebreaker for the edge cases: is your proposed reform popular? Would voters like it?
I’ve written before about some of the undemocratic tendencies of Democrats who wear the “democracy” label on their sleeve. They don’t tend to trust voters much, and they’re more technocrats than populists. By contrast, not only do I think it’s more democratic to actually consider public opinion above and beyond just elections, but I also think that voters will come to better judgments than elites much of the time. I often find myself in a weird part of the Venn diagram as someone who has many technocratic characteristics but is fairly skeptical of central planning and expert judgment.
If you’re going by the polls:
Any sort of gerrymandering reform would potentially be quite popular;
And voters are strongly opposed to court packing, but support term limits and/or a mandatory retirement age for Supreme Court justices.
Some of this isn’t going to happen (changes to the tenures of existing justices, unlike court expansion, would require a constitutional amendment). Still, I’d happily take that deal. And it represents a solid foundation for any sort of “democracy agenda” that Democrats might seek to propose in the future — better than presuming the possibility of some sort of total partisan victory in an era of short-lived majorities.
Finally, as promised, here’s the video of my event with Clare and Galen, which was a really fun show. Due to the idiosyncrasies of the Substack publishing system, it’s behind a paywall6, but you can find a free preview of the first 20 minutes over at Galen’s newsletter.