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

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 enrich our understanding 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 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 Article, 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, Constitutional Doctrine, First Amendment, Second Amendment