The Download of the Week is Constitutional Workarounds by Mark Tushnet. 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.
Highly recommended. Download it while its hot!