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 SSRN.  Here 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.