Constitutional Shoehorning

Abstract

Constitutional shoehorning refers to a litigant using a constitutional provision that addresses one type of concern to advance a different type of concern. A litigant that seeks to protect their rights by bringing a challenge under a federal division of powers provision is an example. This article makes three arguments in relation to the concept. First, it is an understudied and distinctive move in constitutional argumentation and adjudication, different from implications and strained interpretations. Although challenges can arise when trying to identify instances of constitutional shoehorning, they are surmountable in most cases. Second, it has both positive and negative attributes. Third, it is an important feature of Australian constitutional law due to the absence of a bill of rights.