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Article
Constitutional Borrowing
Michigan Law Review (2009)
  • Nelson Tebbe, Brooklyn Law School
  • Robert L Tsai, American University
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.

Keywords
  • constitution,
  • borrowing,
  • legal theory,
  • liberty,
  • equality,
  • equal protection,
  • rule of law
Publication Date
2009
Citation Information
Nelson Tebbe and Robert L Tsai. "Constitutional Borrowing" Michigan Law Review Vol. 108 (2009)
Available at: http://works.bepress.com/robert_tsai/10/