Constitutional Borrowing

66 Pages Posted: 20 Apr 2009 Last revised: 23 Nov 2009

See all articles by Nelson Tebbe

Nelson Tebbe

Cornell Law School

Robert L. Tsai

Boston University School of Law

Date Written: April 23, 2009

Abstract

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 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 borrowing, and identifies some of the risks involved. 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 attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Keywords: constitution, borrowing, First Amendment, Equal Protection, culture, minimalism, living constitutionalism, originalism, liberty, equality

Suggested Citation

Tebbe, Nelson and Tsai, Robert L., Constitutional Borrowing (April 23, 2009). Michigan Law Review, Vol. 108, 2010, Brooklyn Law School, Legal Studies Research Paper No. 145, American University, WCL Research Paper No. 09-36, Available at SSRN: https://ssrn.com/abstract=1392122

Nelson Tebbe

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

Robert L. Tsai (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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