Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights

25 Pages Posted: 10 Mar 2019

See all articles by Joseph Blocher

Joseph Blocher

Duke University School of Law

Luke Morgan

Independent

Date Written: February 19, 2019

Abstract

The study of “rights dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “doctrinal dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly, for example in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying different constitutional guarantees, and the sometimes inextricable relationship between particular rights and their constitutive doctrines. In this Essay, we explore the definitional challenge—what is doctrine?—before identifying some lessons learned when doctrine migrates between rights, and when it stays home.

Keywords: constitutional law, rights, First Amendment, borrowing, dynamism, comparative law, doctrine

Suggested Citation

Blocher, Joseph and Morgan, Luke, Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights (February 19, 2019). William & Mary Bill of Rights Journal, 2020; Duke Law School Public Law & Legal Theory Series No. 2019-19. Available at SSRN: https://ssrn.com/abstract=3337818

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Luke Morgan

Independent ( email )

No Address Available

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