Skip to content

Mark Tushnet, Constitutional Workarounds, 87 Tex. L. Rev. 1499 (2009).

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.