Considerations of History and Purpose in Constitutional Borrowing

TLDR: In this article, the authors make four points: perfect harmony among rights might not always be normatively desirable, in fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights.

Abstract: This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white supremacy has been linked in the past in dangerous ways that must be accounted for today. Third, in deciding how to juggle a variety of constitutional interests, we must engage in purposivist interpretation, considering not only the goal of particular constitutional provisions, but also how the general enterprise of constitutionalism is affected by interpretive choices. In a time of democratic decline, which we are experiencing today, the borrowing of constitutional ideas and delineation of rights must be done in a way that treats the renewal of democracy as an overriding purpose. Otherwise, judicial decisions will be incapable of aiding perennially mistreated groups or solving intractable problems. Remaining non-judgmental as to warring conceptions of democratic life merely ratifies unequal patterns of power and influence. Fourth, as an alternative to policing rights harmony, I argue that it is a judge's responsibility to help foster an unruly constitutional culture where overlapping rights and values are ubiquitous rather than to be obsessed with maintaining a mythical notion of balance. To do so, judges should pursue these twin goals: (1) ensuring the durability of connections between key constitutional values and (2) permitting one closely related value to be substituted for another when doing so is consistent with our constitutional past and can aid the project of democratic renewal.