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Friday, July 03, 2009

Constitutional Borrowing


Many thanks to Dan and the rest of the Prawfs community for inviting me to join the conversation once more.  Lately, I’ve been thinking about constitutional borrowing, which is the practice of lifting legal frameworks, standards, mechanisms, and the like from one area of constitutional law for use in another, seemingly irrelevant constitutional domain.  Robert Tsai and I have written a piece on the topic, which is forthcoming in the Michigan Law Review and available on SSRNHere is the 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 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.

Once sensitized to the phenomenon, you start seeing it everywhere. 

In Heller, to take just one recent example, Justice Breyer chided the Court for not explicitly adopting an interest balancing standard for the Second Amendment similar to the ones used in election-law, speech, and due process cases.  Justice Scalia, writing for the majority, responded that the only proper sources for appropriation were precedents concerning other enumerated rights, such as the First Amendment’s speech guarantee, which allows only limited, categorical exceptions.  Their debate focused on a particular migration while assuming the legitimacy of the practice itself, perhaps too quickly.

While of course borrowing happens all across the law—a commonality that we hope will attract people who work outside constitutional law, including experts on statutory interpretation, common law subjects, and international law—the considerations that arise when constitutional lawyers and judges engage in the practice are particular to that area in several important respects.  We aim to highlight the specificity of constitutional borrowing, for example by drawing out the implications of legal migration for several prominent constitutional theories.  We are working actively on revisions and would welcome comments.

Posted by Nelson Tebbe on July 3, 2009 at 02:40 PM in Constitutional thoughts | Permalink


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Rick: A very thoughtful question, and one that Nelson and I will surely discuss further. In the paper, we don't confront the interpretation-construction debate squarely. The main question there, I think, is whether the distinction between interpretation and construction is a meaningful one. In my previous writings, I have expressed skepticism that there is a firm distinction to be drawn--though I won't hold my co-author to this view!

Nelson and I do present an account of borrowing that challenges the dominant approach which characterizes every aspect of judicial lawmaking as "interpretation." To the extent we wish to complicate others' understanding of judicial lawmaking, our project and that of the pro-construction theorists appear to be aligned. We are interested in showing how certain kinds of choices involved in judicial interpretation are more creative and contested, though the interpretation paradigm tends to obscure such methodological choices. What we say in the paper is that borrowing is widely practiced and yet it is not explicitly recognized. Thus, we characterize borrowing as a subsidiary or second-order custom, one that we would not elevate to an interpretive approach as such (originalism, textualism, and so forth) but prefer to treat as a technique that can supplement any of these formally recognized modalities.

Posted by: Robert Tsai | Jul 4, 2009 9:10:02 PM

Thanks, Rick, for your interest and for the comment. Part VI of the piece does explore how our take on borrowing intersects with prominent theories of constitutional interpretation--including originalism, living constitutionalism, minimalism, and popular constitutionalism--without perhaps explicitly addressing the debate you describe. Those interactions are complex and often not intuitive, in our view. If you have a chance to look at it, we would be interested to know your reactions.

Posted by: Nelson Tebbe | Jul 4, 2009 10:41:34 AM

Nelson -- Welcome back. And, this is a fascinating project. I'll look forward to reading the piece. I wonder -- and I apologize if the answer to this question is, "of course, read the paper!" -- do you think your and Robert's paper speaks to the whole "constitutional meaning & interpretation v. doctrine and construction" debate? Your concept of "borrowing" seems to put attention squarely on the task of doctrine-construction; does your analysis of the concept, or practice, connects the practice of this task, on the one hand, with any particular theory of interpretation, or claims about meaning, on the other?

Posted by: Rick Garnett | Jul 3, 2009 5:23:36 PM

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