Constitutional borrowing.

Author:Tebbe, Nelson
 
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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 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 borrowing, and identifies some of the risks involved. 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 attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking.

TABLE OF CONTENTS INTRODUCTION I. WHAT IS CONSTITUTIONAL BORROWING? A. A Definition B. Some Reasons to Borrow C. A Few Causes for Concern II. SOME TYPES OF BORROWING A. Transplantation B. Hedging C. Displacement D. Corruption III. A DEFENSE OF BORROWING A. Generality B. Empowerment C. Accountability D. Reinforcement IV. CRITERIA FOR EVALUATION A. Fit B. Transparency C. Completeness D. Yield V. IMPLICATIONS FOR THEORY A. Originalism B. Living Constitutionalism C. Minimalism D. Redemptive Constitutionalism E. Popular Constitutionalism CONCLUSION INTRODUCTION

In the American system, areas of constitutional law are often conceptualized separately--think of free speech, equal protection, separation of powers. Perhaps due to that tendency, a common phenomenon has gone surprisingly unnoticed in the literature: constitutional borrowing. In this Article, we aim to bring that practice to light, showing how borrowing works in everyday practice and assessing its implications for American constitutionalism. Our investigation, at bottom, concerns how separate bodies of legal knowledge are interconnected and managed.

Consider Lawrence v. Texas, (1) in which the Supreme Court ruled that a law criminalizing homosexual conduct violated the fight to "liberty" protected by the Due Process Clause. It is possible to see in the decision an appropriation from the language of equality. Justice Kennedy explained:

Equality of treatment and the due process right to demand respect for conduct ... are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. (2) The mere existence of laws regulating homosexual conduct amounts to "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." (3) Moreover, as Kennedy stressed, Bowers v. Hardwick's (4) "continuance as precedent demeans the lives of homosexual persons." (5) This is a layered response to Justice O'Connor's concurring opinion, which would have decided the case on equal protection grounds.

It is also a prominent instance of constitutional borrowing. Despite formally refusing the equality rationale, the Lawrence Court nevertheless appropriated the rhetoric of equality--"stigma," "discrimination," and "respect"--to stake the claim that its liberty approach simultaneously protects core equality values.

The phenomenon is not limited to the Supreme Court. Across many institutions legal actors engage in constitutional borrowing for a range of purposes and with complex effects, some apparent and others less obvious. What is interesting to us is that virtually all discussion surrounding instances of borrowing has concerned the substantive appropriateness of the specific appropriation and not the practice itself. Borrowing is simply assumed to be as legitimate as any other mode of persuasion.

In this Article, we set out to name, organize, and evaluate the dynamics of constitutional borrowing. Part I defines and describes the phenomenon. To anticipate, constitutional borrowing is the practice of importing doctrines, rationales, tropes, or other legal elements from one area of constitutional law into another for persuasive ends. (6) We offer several detailed examples, drawing on cases from contrasting bodies of law and time periods. Throughout, we hold to the view that constitutional borrowing comprises a set of practices that can meaningfully and profitably be analyzed together. We pay particular attention to cases in which the Court has traded between liberty and equality. Partly that is because several prominent commentators have recently advocated more aggressive use of liberty doctrines to effectuate what have traditionally been viewed as egalitarian objectives. (7) Therefore, an assessment of these moves seems timely. Borrowing occurs throughout the law, of course. While we hope that our study will have wide appeal as a consequence, we focus for now on the peculiar challenges of constitutional borrowing. Appropriations in this context can raise democratic considerations of the first order, some of which are particular to constitutional law.

Part II presents a typology of constitutional borrowing, focusing on four everyday forms: transplantation, hedging, displacement, and corruption. These forms can be distinguished based on the borrower's motivations, the circumstances under which the tactic might be preferred, and the persuasive effects and doctrinal consequences entailed. We offer practical illustrations of each type, recognizing that real-world examples often blend two or more of them.

Part III undertakes a considered defense of cross-pollination. On balance, we conclude that constitutional borrowing serves important rule-of-law values, especially commitments to generality, participation, and accountability. Creating a shared repertoire of persuasive moves also opens up possibilities for strategic leveraging by advocates, who may seize opportunities to deploy a device or framework from one field of constitutional law in some other area. In this way, the custom of borrowing empowers citizens and officials alike to take governing principles seriously. It also promises systemic gains, not only promoting certain doctrines in the target domain, but also reinforcing the source idea. For all these reasons, and despite some real dangers, we endorse the general practice.

Even though borrowing is a legitimate and widely accepted part of constitutional lawmaking, it would be a mistake to leap to the conclusion that every act of borrowing is either valid or successful. Part IV presents four criteria by which a particular presentation can be evaluated: fit, transparency, completeness, and yield. This list is not exhaustive, but it offers a tool for organizing further critiques. Part V elaborates how the practice of importation may illuminate or improve five prominent theories: originalism, living constitutionalism, minimalism, redemptive constitutionalism, and popular constitutionalism.

  1. WHAT IS CONSTITUTIONAL BORROWING?

    Our first task is to define the phenomenon of constitutional borrowing. Precision will allow readers to assess whether, in fact, the tendency to appropriate is as pervasive as we claim. Once we settle on a working definition of borrowing, we will give some reasons why legal actors may be tempted to cross over from one legal area to another. We then will offer an example of strategic appropriation that also previews some of its risks.

    1. A Definition

      For some, the term constitutional borrowing will conjure an act of original design, (8) such as when drafters of a new charter insert language taken from another people's governing document. In describing constitutional borrowing, we do not mean to exclude that initial act of creativity, but we are more interested in the many less formal but far more prevalent aspects of borrowing, such as the ordinary importation of doctrine from one field of domestic law into another. Our goal, then, is to open everyone's eyes to the practices of everyday appropriation.

      1. What do we mean by constitutional borrowing ? A person engages in borrowing when, in the course of trying to persuade someone to adopt a reading of the Constitution, that person draws on one domain of constitutional knowledge in order to interpret, bolster, or otherwise illuminate another domain. (9) It is, in other words, an interpretive practice characterized by a deliberate effort to bridge disparate constitutional fields for persuasive ends.

        Notice a few features of this definition. First, it assumes that the average practitioner thinks of constitutional law as organized into separate, bounded, and coherent domains. Practicing lawyers do not commonly work with constitutional law as an undifferentiated whole, but instead experience it as organized into discrete bodies of legal knowledge, such as free speech, substantive due process, equal protection, criminal procedure, or separation of powers. Either explicitly or implicitly, they accept that each of these specialties enjoys some degree of separateness and integrity. (10) That working perception makes borrowing possible. It may occur, for instance, when a court is faced with two arguments--say, a due process claim and an equal protection claim--and chooses to endorse the former while drawing language from decisions associated with the latter. Such an attempt to blur ideas of equality and liberty is what we perceive to be happening in Lawrence, even though the majority opinion formally declined to find an equality violation. That example also illustrates an interesting tension. While on the one hand borrowing depends on legal boundaries, on the other hand it works to weaken doctrinal distinctiveness.

        A second feature of our definition is that any person with a basic understanding of political or legal history can engage in the practice. Although our examples here...

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