Constitutional Borrowing

A robust constitutional culture will permeate the beliefs and actions of individuals, sometimes subtly, sometimes in highly visible ways. For instance, as I argue in Eloquence and Reason, the rise of the First Amendment to its privileged place has encouraged advocates and jurists to draw upon the ideas of free speech, assembly, and religion in order to bolster or dislodge a wide array of governing values.

In Constitutional Borrowing, 108 Michigan Law Review (forthcoming 2009), Nelson Tebbe, Brooklyn Law School, and I tackle a number of the questions presented by a legal order in which the interpenetration of ideas is the norm.

The abstract follows:

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.