Mark Tushnet (Harvard University - Harvard Law School) has posted Constitutional Workarounds (Texas Law Review, Vol. 87, 2009) on SSRN. Here is the abstract:
This Essay, forthcoming in the Texas Law Review, examines constitutional workarounds, which arise (a) when there is significant political pressure to accomplish some goal, but (b) some parts of the Constitution's text seems fairly clear in prohibiting people from reaching that goal directly, yet (c) there appear to be other ways of reaching the goal that fit comfortably with the Constitution. The routes to the goal are workarounds. Finding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts - and do so without (obviously) distorting the tools we use.
Constitutional workarounds raise important questions about the Constitution and constitutional theory. They can occur only if the Constitution is in some sense at war with itself: One part of the text prohibits something, but other parts of the text permit it, and the Constitution itself does not appear to give either part priority over the other. And, to the extent that workarounds occur when there is political pressure to accomplish a goal blocked by parts of the Constitution's text, workarounds place under severe pressure the idea that a constitution is a form of commitment to avoid improvident actions that we are inclined to take because of perhaps passing political considerations: The first bit of text expresses our commitment not to do something in response to immediate political pressures, but the workaround allows us to succumb to those pressures.
The Essay offers a simple classification of workarounds - true, fraudulent, and contested - and then discusses the prerequisites for workarounds, which include general agreement that the constitutional texts obstructing action no longer make much sense and, perhaps related to the existence of such agreement, some substantial degree of bipartisan agreement that using the workaround is constitutionally appropriate. The Essay concludes with some thoughts about the implications of workarounds for constitutional theory.
And from the text:
In 1992, after several years of negotiating, the political leaders of the United States, Canada, and Mexico signed the North American Free Trade Agreement (NAFTA).15 To go into effect the agreement had to be adopted as law by each nation pursuant to its own constitutionally mandated procedures. President Bill Clinton supported the agreement, but many in his own party did not. President Clinton sought to temper disagreement about NAFTA by negotiating additional agreements about labor rights and environmental protection. Even with those side agreements, though, the president could not be sure that he could find enough votes in the Senate to ratify the agreement as a treaty. He therefore chose to submit the agreement as a statute to be enacted by ordinary majorities in the House and the Senate. By making the agreement an important part of his political agenda, the president was able to secure its adoption in November 1993, by a narrow majority in the House and by a vote of 61-38 in the Senate, short of the two-thirds majority required for the adoption of a treaty. Constitutional scholars differed over whether NAFTA was adopted in a constitutionally permissible manner, with some taking the position that international obligations with such extensive scope had to be adopted as treaties.16 Notwithstanding these doubts, by 2009 NAFTA and its legal status were clearly settled. Voilá: An international obligation undertaken by statute rather than treaty.
And:
The thick Constitution consists of the organizational details such as the Emoluments and Origination Clauses. These provisions set up and regulate the national government and, though they do rest on policy judgments about how a good government is best organize, they do not reflect deep commitments of political philosophy and theory – or, perhaps more precisely, they reflect judgments about political philosophy and theory that could readily be satisfied by other organizational choices.32 The thin Constitution, in contrast, consists of constitutional provisions that do directly reflect such deep commitments, implementing the commitments truly basic to the Constitution.33 The distinction has bite in the present context because working around the thin Constitution’s provisions might be worrisome in a way that working around the thick Constitution’s provisions. It is not the purpose or motive that leads to concern about workarounds, but rather their target.
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