Constitutional Workarounds

In this piece, Professor Mark Tushnet explores the questions of constitutional theory raised by what he terms “constitutional workarounds”: situations where an action seems to be prohibited by some part of the Constitution, but may be permissible based on (a sometimes creative reading of) another part. In such cases, the Constitution “is in some sense at war with itself.” Tushnet’s analysis focuses on a number of real-world situations where such tensions have arisen. He argues that, to the extent that workarounds occur in response to political pressure to do something apparently prohibited by the Constitutional text, workarounds strain the “commitment account” of constitutional understanding. The commitment account posits that a constitution embodies certain commitments to restrain ourselves from violating certain principles in response to to passing political pressures.

Tushnet then offers a basic tripartite classification of workarounds. Based on this framework, he identifies a number of prerequisite conditions for such workarounds: for instance, the existence of a general agreement among political actors that the constitutional provision to be circumvented doesn’t make sense, or in other words, that not following it would not break an important societal commitment.  He concludes by noting that two accounts of workarounds are possible: one is that they undermine past promises (commitment account) and are therefore violative of the Constitution; the other is that, at least under the right conditions, it is merely another technique (like judicial interpretation) to allow our understanding of Constitutional provisions to evolve.