The Concept and Scope of Abusive Constitutional Borrowing

Abstract

This chapter elaborates the book’s concept of abusive constitutional borrowing, which is defined as the use of designs, doctrines, and concepts associated with liberal democratic constitutionalism for anti-democratic ends. All forms of abusive borrowing decouple the form of a norm from its substance, but in different ways. The chapter develops a typology of four subtypes of abusive borrowing—(1) sham borrowing, which takes the form of a norm without its substance; (2) selective borrowing, where borrowers use only part of a norm or package of norms; (3) acontextual borrowing, where a norm is intentionally transplanted into a context with different background conditions; and (4) anti-purposive borrowing, where an anti-democratic norm is repurposed to achieve the opposite of its intended purpose. Changes in the form and substance of norms are common with all borrowing, but the hallmark of abusive borrowing is that it undertakes these mutations to maximize anti-democratic impact.