66 Pages Posted: 20 Apr 2009 Last revised: 23 Nov 2009
Date Written: April 23, 2009
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: 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