Replication data for: Constitutional Borrowing and Nonborrowing

Constitutional borrowing comes in different forms. Judges may consider decisions reached by their counterparts in other societies when resolving disputes; constitutional framers may look abroad when considering what provisions to etch into their documents; even citizens may be attentive to practices elsewhere when formulating opinions over constitutional change. Perhaps not so surprisingly, the scholarly literature reflects this variation. Numerous studies have focused on borrowing as it pertains to constitutional design; others have set their sights on the export and import of decisions (or their underlying rationale) rendered by courts, or what some scholars and judges are now deeming, more broadly, an international judicial "dialogue" or "conversation." A handful are empirical efforts, not so much geared at explaining borrowings but r ather at describing when and where they have occurred. Others are largely or mostly normative in nature, asking whether courts should canvass international and comparative law when interpreting their society's constitutional documents, how to judge "when a borrowing or importation is successful," or "whether American democracy be exported to [particular] societies," among others. The bulk of essays, though, are a combination, invoking empirical arguments to shore up their normative points—such as offering the positive empirical implications of adopting their preferred position (e.g., either for or against borrowing). While we appreciate all these distinctions, in our view they under appreciate a key point; namely, that constitutional borrowing is a case of a larger phenomenon: institutional design. When constitutional courts choose (or do not chose) to engage in dialogues with other tribunals, or when the framers of constitutions borrow (or not) provisions from documents elsewhere, they are to be sure engaging (or not) in constitutional borrowing, but their task—to design institutions to gove rn their societies—is far larger than most scholars have taken that term to mean. We understand why this point remains underdeveloped in existing literature. The problem, as our emphasis above on or not implies, is that many studies of constitutional borrowing (especially the great many that rely on, in part or in full, empirical evidence) select on the dependent variable, that is, they typically focus on when the phenomenon occurs—when and why society B borrows a formal constitutional provision, a court precedent, and so on from society A—and ignore when and why it does not occur—when and why society B does not borrow a formal constitutional provision, a court precedent, and so on from society A. This practice is problematic for many reasons but most relevant here is that it moves us away from a crucial feature of the phenomenon we are seeking to describe or explain: that societies are making (or have made) choices over whether to borrow (or not borrow) institutions from another or other societies. They are not merely, reflexively, or always borrowing, as the practice of selecting on the dependent variable might lead us to conclude; they are rather engaged in the task of designing institutions. Sometimes, in undertaking that task, they borrow from society B; sometimes, they borrow from society C; sometimes they do not borrow at all