Wednesday, April 22, 2009
Nelson Tebbe, Brooklyn Law School, and I have posted Constitutional Borrowing, which is forthcoming in the Michigan Law Review. Our aim is primarily theoretical in nature: to define constitutional borrowing, present a typology describing its common forms, undertake a rule-of-law defense of the practice, and say a few words about how borrowing figures in modern constitutional theory. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation.
Even so, students of legal history might be interested in two aspects of the paper. First, we describe the efforts of jurists, activists, and academics during the last twenty years to import the language and doctrines of equality into matters of religion as a project of "displacement." Social conservatives, in particular, have been highly successful at coopting the terminology and experiences of the civil rights movement on behalf of the faithful (I flesh out this popular mobilization and institutional endorsement of constitutional language in Chapter Four of Eloquence and Reason).
Second, we endeavor to demonstrate that originalists are among the most avid borrowers, whose crucial choices involve not only which questions to ask of the past, but also whose history matters. These analytical moves are all too often hidden by the dominant manner of treating everything related to construing a constitution as "interpretation."
We would be very interested in your comments.