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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.

County of Los Angeles v. Mendez, the Supreme Court’s recent decision rejecting shooting victims’ excessive force claims, has been written off as yet another case in which police violence has no civil rights consequences. The Court found that the deputies who shot Jennifer Garcia and Angel Mendez fifteen times used reasonable force because Mendez was holding a BB gun. But the deputies barged in on Garcia and Mendez while they were napping on a futon in their home, and Mendez grabbed his BB gun to stand up and steady himself. The Court remanded the case with instructions to consider whether the defendants’ warrantless entry into the plaintiffs’ home, a constitutional violation not entitled to qualified immunity, was the proximate cause of the deputies’ deadly force. Justice Alito, writing for the Court, advised plaintiffs that “there is no need to dress up every Fourth Amendment claim as an excessive force claim.” The invitation to attempt recovery through an alternative legal theory could prove revolutionary for victims of police-involved shootings. So long as they can rely on common law tort principles to show that their injuries were proximately caused by an earlier constitutional violation, they might avoid excessive force precedent’s insurmountable hurdles, which, in recent cases like Plumhoff v. Rickard and Brosseau v. Haugen, have sanctioned nearly all forms of law enforcement deadly force. If plaintiffs can recover damages for shootings, then 42 U.S.C. § 1983 might once again serve some real deterrent purpose, forcing police officers to think before they shoot.

This Response addresses Professors Joseph Fishkin and David Pozen’s Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in “asymmetric constitutional hardball” since 1993. This Response accepts the authors’ contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry. Part I questions whether one of the authors’ primary examples of Republican constitutional hardball—government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other—supports the authors’ thesis, especially given that the shutdowns could at least as easily be blamed on the Presidents as on Congress. Part II highlights important examples of Democratic constitutional hardball, especially hardball by the Obama Administration, that are omitted from the authors’ analysis. Part II also briefly reviews reasons why Democrats have been increasingly inclined toward constitutional hardball. Part III discusses in some detail a particularly important example of Obama Administration constitutional hardball—its efforts to reach and implement, over significant opposition in Congress, a nuclear agreement with Iran. These efforts circumvented Congress and involved lying to the public, engaging in legally aggressive lifting of sanctions on Iran, and even spying on the agreement’s domestic opponents.

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out the opposing player, against the basic rules of the game. In this Reply to Fishkin, Pozen, and Bernstein, I first address Bernstein’s examples of President Barack Obama and Democrats engaging in hardball. I note that Fishkin and Pozen’s “asymmetry” thesis acknowledged clearly that Democrats play hardball, even if not as aggressively as Republicans have. I discuss government shutdowns, birtherism, debt ceiling threats, abuses of the Department of Justice (DOJ), and the contrasting manipulations leading to the Iraq War versus the Iran nuclear deal. This Reply then identifies examples of Republicans’ fundamentally antidemocratic beanball: voter ID laws and other voting restrictions, extreme gerrymandering, marginalizing racial minorities, and abusing the DOJ. Beanball’s destructive politics reflect racial status anxiety, paranoia, and a panic over dispossession and the loss of historical privilege.