All Things in Proportion? The United States

This chapter considers constitutional rights doctrines of the United States in light of the global spread of proportionality. It challenges the view that proportionality is alien to the American constitutional experience, showing that American courts have developed approaches to rights that closely resemble proportionality. In particular, the Supreme Court’s test for state laws that burdened interstate commerce, developed in the nineteenth century, resembled proportionality, and so did “strict scrutiny” review as it was initially applied by the Supreme Court in the mid-twentieth century. The Supreme Court’s current approach to constitutional rights, relying heavily on separate tiers of review, is characterized by three pathologies: (i) judicial abdication, in the form of rational basis review; (ii) analytical incompleteness, when an explicit balancing stage is omitted; and (iii) instability, leading to reclassification and doctrinal incoherence. The chapter argues that proportionality can protect rights more consistently and coherently than the current American approach, and concludes by showing how courts courts could give proportionality greater expression in constitutional doctrine.

Constitutions, Rights, and Judicial Power

This chapter provides an overview of contemporary, rights-based constitutionalism, and develops an approach to comparative research on systems of constitutional justice. The vast majority of modern constitutions establish such systems, which comprise an entrenched charter of rights, and a constitutional or supreme court whose mission is to defend the supremacy of the constitution more generally. Rights provisions comprise criteria of legal validity: any act of public authority that does not conform to the charter is unconstitutional. The central role of the court is to ensure that public officials do not violate the charter of rights, most importantly, through the enforcement of the proportionality principle. The judges are, in effect, “trustees” of the values placed in trust by those who have enacted the constitution: the sovereign People. Part I defines basic concepts—including that of “the constitution,” “constitutionalism,” and “governance”—and examines the process through which the rights-based constitution became the global standard. Part II addresses two crucial questions: why would the founders of new constitutions choose (i) to enshrine constitutional rights as “higher law,” and (ii) to delegate broad enforcement powers to a trustee court, whose important rulings on rights are difficult or virtually impossible to overturn? It then defines the concept of systemic effectiveness, and considers the conditions that are necessary for a charter of rights to become effective as an instrument of governance. Part III explores three pathways to transformative constitutional change—adjudication, constitutional amendment, and legislation—and discusses the importance of trusteeship to each.

Constitutional Dialogues

Apex courts face a fundamental problem: they cannot succeed in building systematic effectiveness in the face of regular opposition from the other branches of government, but they must sometimes invalidate the acts of those institutions to make rights effective. Chapter 5 considers how a court can build effectiveness while inducing inter-branch cooperation. A key is proportionality, which provides an infrastructure for the construction of dialogic jurisprudence. Constitutional courts delineate “zones of proportionality” within which policymakers enjoy meaningful policy discretion, albeit within guidelines set by the court. The chapter considers how rights-based, constitutional dialogues play out in three contexts, with respect: to legislating, making and enforcement of administrative law, and in the adjudication of private law disputes. These dialogues not only serve to secure other institutions’ acquiescence to the court’s jurisprudence, but drive proportionality reasoning into their decision-making routines, and hence into the legal domains over which they preside.

Emergence and Diffusion

This chapter charts how proportionality has developed into a global principle of constitutional law. The German Federal Constitutional Court constitutionalized the proportionality principle, which has roots in eighteenth-century political theory and nineteenth-century administrative law. From Germany, proportionality radiated outward, spreading through Europe with the aid of the courts from the European Union and the European Convention on Human Rights, and beyond Europe owing to its adoption by influential constitutional courts, including in Canada, Israel, and South Africa. PA has accompanied most successful transitions to rights-based constitutional democracy in the past three decades, including in Asia and Latin America. The empirical focus in this chapter is on (i) how courts have justified their turn to proportionality, (ii) how they subsequently deploy PA, and (iii) how these choices impact law and politics. Proportionality’s diffusion exhibits the basic features of what institutional sociologists call isomorphism, which is driven by mimetic, coercive, and normative mechanisms. Notwithstanding points of convergence, there are profound cross-national variation in how courts adopt and use proportionality. The chapter explains why this diversity is likely to persist.

Global Constitutionalism and Transnational Governance

This chapter focuses on the evolution of treaty-based human rights regimes in Europe, the Americas, and Africa. Each of the five courts under consideration insists on its own primacy with respect to the interpretation of charter rights; each considers such interpretations to be binding on all domestic judges; and each holds, or strongly implies, that states are under a duty to incorporate the regional charter as directly enforceable, domestic law with a rank at least above statute. Today, the European and the Inter-American courts take pains to portray their role and function in constitutional terms, a posture the three African regional courts appear to be following. All have adopted proportionality, which the European and Inter-American courts, in particular, have prioritized as an instrument of transnational governance. National trustee courts can and do resist transnational courts; but an increasing number have also held that international human rights—and respect for the jurisprudence of the regional court—are an integral part of their own domestic systems of justice. Today, domestic and treaty-based charters overlap, reflect, and reinforce one another. As important, trustee courts, at both levels, intensively interact with one another on the basis of shared commitment to building the effectiveness of rights protection through the enforcement of the proportionality principle. These facts support the view that, over the past three decades, a global, multi-level, and pluralistic constitutional system has emerged.

Proportionality and Constitutional Governance

The chapter explains why enforcement of the proportionality principle has become the central procedural component of constitutional governance in the world today. Part I argues that proportionality analysis [PA]—with its distinctive sequence of subtests culminating in balancing—neatly fits the structure of qualified rights, providing a comprehensive analytical framework for adjudicating them. A right’s provision is “qualified” when it contains a limitation clause, which authorizes government officials to restrict the enjoyment of a right for some sufficiently important public purpose. Today, virtually all of the most powerful courts in the world deploy PA to determine whether officials have properly exercised their authority under limitation clauses. PA proceeds through a sequence of subtests: (i) “legitimacy,” or “proper purpose”; (ii) “suitability” or “rational connection”; (iii) “necessity”; and (iv) “proportionality in the strict sense.” A government measure that fails any subtest in this sequence is unlawful. Part II directs attention to the various ways in which proportionality enables judges to manage legitimacy issues associated with the judicial supremacy that comes with trusteeship. PA enables judges: to avoid creating rigid hierarchies among rights and interests; to exploit the legitimizing logics of Pareto optimality (reducing harm to the loser as much as possible); and to identify and respect the lawmaking prerogatives of the officials whose policymaking they supervise. Part III develops a simple model of constitutional governance—with rights, a duty of officials to justify their rights-regarding actions, and PA at its core—and respond to objections and alternatives.