POSITIONAL OBJECTIVITY AND THE CASE FOR
PROPORTIONALITY ANALYSIS IN CONSTITUTIONAL LAW
Vlad Perju
POSITIONAL OBJECTIVITY AND THE CASE FOR PROPORTIONALITY ANALYSIS
IN CONSTITUTIONAL LAW
Introduction ……………………………………………………………………………..3
1. Two Models of Constitutional Rights………………………………….……………12
1.1. Rights as Structural Reasons: The Allocation Model………………….……………14
1.2. Rights as Substantive Reasons: The Proportionality Model…………….…………..22
2. The Proportionality Debate……………………..…………………...………………30
2.1. The Proportionality Test………………………………………….…………………30
2.1.1. Comparative Perspective: Canada and Germany ……………….…………….31
2.1.2. Justice Breyer’s Heller Dissent…………………………………...…………….39
2.2. Defending Proportionality ……………………………………….…………………49
2.2.1. The Rights Defense: Preserving The “Essence” of Rights……….…………….50
2.2.2. The System Defense: The Rationality of the Legal System……………………..57
3. Positional Objectivity and the Judicial Standpoint………………..………………64
3.1. The Concept of Positional Objectivity ……………………………………...………64
3.2. The Positional Objectivity of Courts………………………………………………..69
3.2.1. Respect and Impartiality…………………………………………………..……69
3.2.2. Correctness ………………………………………………………………...…..74
3.3. Specifying the Judicial Standpoint……………………………………………….….78
3.3.1. Administrability …………………………………………………………….…..80
3.3.2. Transparency………………………………………………………………..….83
3.3.3. Institutional Design ………………………………………………………….…85
3.3.4. Cognitive Constraints……………………………………………………….….87
Conclusion ……………………………………………………………………………...89
1
Abstract
This Article challenges the pervading orthodoxy in constitutional
theory that particularized judicial decision-making may be
desirable in an ideal world but that in practice it empowers judges
to an extent unacceptable in a democracy. Drawing on Amartya
Sen’s conception of positional objectivity, it argues that
proportionality can be an objective, impartial and viable
constitutional method. As comparative experience confirms,
proportionality allows judges to fine-tune their analysis to specific
contexts without jeopardizing the objectivity of their final
decisions. Contrary to the prevailing view, proportionality is no
less defensible, from an institutional perspective, than competing
methods of constitutional interpretation. After rejecting traditional
defenses of proportionality that seek its strength either in the
nature of constitutional rights, as Justice Breyer’s dissent in
Heller, or in the nature of a constitutional system, the Article
specifies the positional objectivity of courts in relation to four
different audiences: the litigants, lower courts, the political
institutions and the judges themselves.
2
POSITIONAL OBJECTIVITY AND THE CASE FOR PROPORTIONALITY ANALYSIS
IN CONSTITUTIONAL LAW
INTRODUCTION
One unintended consequence of the Supreme Court’s recent decision in District of
Columbia v. Heller1 will be to reopen the grand debate about particularized judicial
decision-making in constitutional law. Is case-specific constitutional interpretation ever
legitimate? Can judges balance competing interests in an objective and impartial fashion?
What standpoint do courts take in deciding if and when “political institutions can act
inconsistently with constitutional rights”2, and is that standpoint defensible within the
larger constitutional structure? What conception of rights informs contextual decisionmaking?
Building on Justice Breyer’s dissent in Heller, this article argues that
proportionality answers these questions convincingly. Hailed as the “most successful
legal transplant of the second half of the twentieth century,”3 proportionality constructs
the judicial standpoint to circumvent the binary choice between strict rules and flexible
standards.4 It places traditional “free balancing”5 within a larger conceptual framework
1
District of Columbia v. Heller, 128 S.Ct. 2783 (2008).
2
Stephen Gardbaum, Limiting Constitutional Rights, 54 UCLA L. REV. 789, 801 (2007).
3
Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional
Justice, 2 INT’L J. CONST. L. 574, 595 (2003).
4
See generally Kathleen Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22
(1992); Louis Kaplow, Rules versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992); Duncan
Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); Pierre Schlag,
Rules and Standards, 33 UCLA L. REV. 379 (1985); Frederick Schauer, The Convergence of Rules and
Standards, [2003] NEW ZEALAND L. REV. 303. The debate between rules and standards has transcended
constitutional law. See e.g. Lawrence A. Cunningham, A Prescription to Retire the Rhetoric of 'PrinciplesBased Systems' in Corporation Law, Securities Regulation, and Accounting," 60 VANDERBILT L. REV.
1411-1493 (2007) (discussing the distinction between rules and standards in the context of corporate law);
3
that can rein in judicial discretion6 and offers judges a method that is structured without
being rigid, and flexible while remaining reasonably predictable. 7 Contrary to the view
dominant in contemporary scholarship, its institutional dimension constitutes
proportionality’s main strength, not its weakness. Drawing on Amartya Sen’s conception
of positional objectivity,8 this article shows how judges can fine-tune their analysis to the
context of a given case without jeopardizing the objectivity of their final decision. This
approach emphasizes the mutability of institutional roles in the judicial process, thus
Rachael Brewster, Rule-Based Dispute Resolution in International Trade, 92 VA. L. REV. 251 (2006)
(discussing the distinction between rules and standards in the context of international trade).
5
This is how seasoned observers describe balancing in American constitutional law. See Dieter Grimm,
Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO L. J. 384, 397
(2007) [hereinafter Proportionality].
A balancing opinion has been defined, in constitutional law, as: “[A] judicial opinion that analyzes a
constitutional question by identifying interests implicated by the case and reaches a decision or constructs a
rule of constitutional law by explicitly or implicitly assigning values to the identified interests.” In T.
Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L. J. 943, 945 (1987).
Balancing is most apparent when courts apply intermediary scrutiny. See Kathleen Sullivan, Post-Liberal
Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293, 296 (1992) (mentioning
intermediary scrutiny in cases where balancing applies and the result is not predetermined at the outset).
See United States v. O’Brien, 391 U.S. 367 (1968). For clear judicial statements about balancing, see
Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660, 899 (1988) (O’Connor, J.,
concurring) (“To me, the sounder approach – the approach more consistent with our role as judges to
decide each case based on its individual merits – is to apply a test in each case to determine whether the
burden on the specific plaintiffs before us is constitutionally significant and whether the particular criminal
interest asserted by the State before us is compelling”); San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 99 (1973) (Marshall, J., dissenting) (mentioning “ a spectrum of standards” in the
field of equal protection: “[T]his spectrum clearly comprehends variations in the degree of care with which
the court will scrutinize particular classifications.”); Craig v. Boren, 429 U.S. 190, 212 (1976) (Stevens, J.,
concurring) (“I am inclined to believe that what has become known as the [tiered] analysis of equal
protection claims does not describe a completely logical method of deciding cases, but rather is a method
the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent
fashion.”). See also City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (Stevens,
J., concurring).
6
7
See Frank Coffin, Judicial Balancing: The Protean Scales of Justice, in NORMAN DORSEN (ED.), THE
EVOLVING CONSTITUTION: ESSAYS ON THE BILL OF RIGHTS AND THE U.S. SUPREME COURT (1989)
(presenting balancing as a flexible tool that can be fine-tuned to the complexity of facts and thus lead to allthings-considered and principled judgments.).
8
Amartya Sen, Positional Objectivity, in PHILOSOPHY AND PUBLIC AFFAIRS, Vol. 22, No. 2 (Spring, 1993),
126-145. The article has been included as a chapter in AMARTYA SEN, RATIONALITY AND FREEDOM (2003),
but references here are to the initial article. The text was originally delivered as the Storrs Lectures on
“Objectivity” at Yale Law School (September 1990).
4
adding to the case against the “cognitive illiberalism” of courts a much needed normative
dimension.9
Justice Breyer’s dissent in Heller represents the most elaborate articulation of the
proportionality test to date10, one that could be generalized across the constitutional
domain.11 That case involved a Second Amendment challenge to the constitutionality of a
District of Columbia regulation on handguns. After finding, in a 5 to 4 decision, that the
individual interest in self-defense is a core interest protected by the “right to keep and
bear arms,” the Court applied categorical reasoning to strike down the regulation as
unconstitutional.
subsidiary”
13
12
The dissents argued that the interest in self-defense was “at most
and thus fell outside of the core of the right. In his dissenting opinion,
Justice Breyer applied a proportionality test to examine whether the District’s
The “cognitive illiberalism” of courts refers to the psychological standpoint from which judges decide
cases, which is both biased and unavoidable. See Dan Kahan, The Cognitively Illiberal State, 60 STAN. L.
REV. 115, 117 (2007) (“My objection to liberalism is neither metaphysical nor political but cognitive: we
lack the psychological capacity… to make, interpret and administer law without indulging sensibilities
pervaded by our attachments to highly contested visions of the good.”) (footnote omitted). My analysis
preserves the emphasis on standpoints and the availability of different perspectives that is central to this
approach while denying its fatalistic conclusions. Proportionality does not enhance biasing tendencies any
more than other methods of constitutional decision making. As far as perspectivism is concerned, its role
has recently been given more traction in legal analysis. See Daniel Markovits, Legal Ethics from the
Lawyer’s Point of View, 15 YALE J. L & HUMANITIES 209 (2004).
9
In Rodriguez, Justice Marshall argued: “[T]he determination of which interests are fundamental should
be firmly rooted in the Constitution” and defended the following test: “[T]he extent to which
constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution.” San
Antonio Independent School District v. Rodriguez, 411 U.S. 1, 835 (1973). He also argues that there is a
close nexus between education and “[O]ur established constitutional values with respect to freedom of
speech and participation in the political process.” See id. at 836 n.74.
10
11
There are of course many other areas of constitutional law where the Court has developed structured
balancing. However, their vocation has been confined to the particular doctrinal areas in which they have
been initially formulated. See, e.g., Central Hudson Gas v. Public Service Commission of New York, 447
U.S. 557 (1980) (devising a four-step analysis to apply in commercial speech cases); Lemon v. Kurtzman,
403 U.S. 602 (1971) (elaborating a three-pronged test to be applied in establishment cases).
128 S. Ct. at 2821: (“We know of no other enumerated constitutional right whose core protection has
been subjected to a freestanding ‘interest-balancing’ approach.”).
12
13
128 S. Ct. at 2866 (Breyer, J. dissenting); see also id. at 2831 (Stevens, J., dissenting).
5
infringement of the Second Amendment right was justified. Stated in a general form,14
this method requires judges to inquire, successively, into (1) the purpose of the
governmental regulation – in Heller, that was the District’s interest in reducing gunrelated violence in urban areas15 - (2) its suitability for achieving that purpose, (3)
whether the regulation is necessary given the availability of less restrictive means and,
finally, (4) the balancing of the degree of infringement on the right in question against the
collective benefit the infringement will yield.16
Will Justice Breyer’s dissent share the fortune of other famous dissents that
eventually shaped constitutional doctrine?17 While it is impossible to know how it will
persuade future judges, it might be telling that, looking across the world constitutional
map, proportionality is “a universal criterion of constitutionality.”18 This method enables
judges “to evaluate the work of the political branches of government from a common
Justice Breyer’s elaborate discussion and reflection on the legitimacy of the method gives the reader an
inkling that, in addition to speaking to the majority, he might also have been teaching lower courts how to
apply such a method. See 128 S. Ct. at 2847-2870. This was not the first time when Justice Breyer
advocated the use of proportionality. See Turner Broadcasting System v. FCC, 520 US 180 (1997) (Breyer,
J. concurring); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) (Breyer, J., concurring); U.S. v.
Playboy Entertainment Group, 529 U.S. 803 (2000) (Breyer, J., dissenting); Bartniki v. Vopper, 532 U.S.
514 (2001) (Breyer, J. concurring).
14
15
128 S. Ct. at 2822.
16
This final step, balancing, is also referred to as proportionality stricto sensu. This co-terminology reveals
the close connection between balancing and proportionality. See Robert Alexy, On Balancing and
Subsumption. A Structural Comparison, 16 RATIO JURIS 4 at 433, 436 (2003) [hereinafter On Balancing]
(“If the constitution guarantees constitutional rights, then many or even all legal decisions restricting the
freedom of individuals have to be understood as interferences with constitutional rights. Interferences with
constitutional rights are admissible, however, only if they are justified and they are justified only if they are
proportional. Proportionality-judgments, however, presuppose balancing.”).
One famous example is the Holmes/Brandeis “clear and present danger” test. See Abrams v. United
States, 250 U.S. 616 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357 (1927) (Brandeis,
J., concurring). For a discussion of this phenomenon in constitutional law, see generally Anita
Krishnakumar, On the Evolution of the Canonical Dissent, 52 RUTGERS L. REV. 781 (2000); MARK
TUSHNET, I DISSENT (2008).
17
18
DAVID BEATTY, THE ULTIMATE RULE OF LAW 162 (2004). See also Gardbaum, Limiting Constitutional
Rights, supra note ____, at 792.
6
perspective and without regard to their own political and moral philosophies.”19 Scholars
have argued that proportionality is “an intrinsic part of the structure of rights and the
legislator’s] limited override power.”20 Irrespective of where the source of its appeal is
located, there is agreement that proportionality has developed “with the greatest degree of
sophistication.”21
Unsurprisingly, not everyone is spellbound. For Justice Scalia, proportionality is
“freestanding ‘interest-balancing.’”22 Scholars question its appropriateness especially in
heterogeneous societies where pluralism is a permanent “circumstance of politics.”23
They argue that proportionality is rooted in intuitionism rather than reason,24 or that is a
mechanism for perpetuating entrenched asymmetrical relations of power in society.25
After surveying more than three decades of proportionality analysis in German law,
19
Beatty, The Ultimate Rule of Law, supra note ____ at 159.
Gardbaum, Limiting Constitutional Rights, supra note ____ at 797 (“[C]ontrary to the usual
understanding, balancing is far less a judicial methodology of constitutional adjudication than an intrinsic
part of the structure of rights and the limited override power.”).
20
21
See Alexy, On Balancing, supra note ____, at 436. Alexy refers here to balancing, or proportionality
narrowly understood. See infra___.
22
128 S. Ct. at 2821 (my italics).
For a discussion of pluralism as a permanent “circumstance of politics”, see Jeremy Waldron, Kant’s
Legal Positivism, 109 HARV. L. REV. 1535, 1538-1540 (1996). Pluralism has been defined as “the deep
mistrust of people’s capabilities to communicate persuasively to one another their diverse normative
experiences: of needs and rights, values and interests, and, more broadly, interpretations of the world,” in
Frank Michelman, Law’s Republic, 97 YALE L. J. 1493, 1507 (1988).
23
24
See generally Louis Henkin, Infallibility under Law: Constitutional Balancing, 78 COLUM. L. REV. 1022,
1043 (1978) (discussing whether balancing is an inherently discretionary form of intuitionalism). German
constitutional scholars have made a similar argument; see Bernard Schlink, Der Grundsatz der
Verhältnismäßigkeit, in FESTSCHRIFT 50 JAHRE BUNDESVERFASSUNGSGERICHT, 445-465 (Peter Badura &
Horst Dreier eds. 2001).
25
For a statement, see DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION 315-338 (1997). An eloquent
proponent is Judge Englard of the Supreme Court of Israel. See C.A. 6024/97 Shavit v. The Chevra
Kadisha of Rishon Le Zion [1999] IsrSC J. Englard at § 20 [hereinafter Shavit] (“The problem is that
when the litigants can’t reach an agreement, one principle must be overruled. This is the problem of true
justice: in a situation where, unfortunately, it is impossible to safeguard all the legitimate interests, there is
a need to give preference to one over the other. It is great in theory to talk about balancing opposing
interests. I am not convinced that this metaphor accurately describes the judicial process under which we
are bound, at the end of the day, to reject the right of one in favor of the right of another.”).
7
David Currie concluded: “a balancing test is no more protective of liberty than the
judges who administer it.”26
There is an interwoven layer of criticism berating proportionality for its approach
to the nature of constitutional rights. During balancing, judges break the institutional shell
that encases the right, reach inside for the interest that the right protects and weigh the
loss to that interest (in Heller, the individual interest in self-defense) against the gain to
the public good promoted by the regulation.27 But when the institutional shell is cracked,
the deontological nature of the right is likewise fractured. How could free speech
continue to act as a “firewall”28 that protects the rightholders against the government if
the right could be limited whenever judges are convinced that the collective interest
demands it? And don’t some rights – perhaps free speech but certainly the right not be
enslaved or tortured – deserve categorical protection? The “sin” of proportionality, in this
view, is to legitimize utilitarian calculus when the point of constitutional rights is to
disallow just such calculations.29
This article answers the above challenges and structures the case for
proportionality as follows. Part one distinguishes between two approaches to
constitutional rights: rights as structural reasons and rights as substantive reasons.
According to the former approach, rights are reasons about how the constitution allocates
26
DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 181 (1994).
27
Drawing on the jurisprudence of the German Constitutional Court, Robert Alexy has presented the
following law of balancing: “The greater the degree of non-satisfaction of, or detriment to, one right or
principle, the greater must be the importance of satisfying the other,” ROBERT ALEXY, A THEORY OF
CONSTITUTIONAL RIGHTS 102 (2002).
28
JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS, 258 (1996).
29
See H.L.A. Hart, Between Utility and Rights, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 198 (1983).
From this perspective, “[R]ights are best understood as the way constitutional law marks the boundaries
between different spheres of political authority.”; see also Richard Pildes, Avoiding Balancing: The Role of
Exclusionary Reasons in Constitutional Law, 45 HASTINGS L.J. 711, 722 (1993-1994).
8
decision-making authority in order to satisfy individual wants. In the latter approach,
rights are super-valued interests that receive constitutional protection by virtue of their
judicially recognized strength in each given case. I call the model based on the
conception of rights as structural reasons “allocational,” and the other the
“proportionality” model. Analysis shows that, contrary to conventional wisdom, the
constitutional allocation of institutional roles is as present in the proportionality model as
it is in the allocation model, whose advocates invoke its institutional alertness as proof of
its superiority.30
Part two is a description of the proportionality model followed by a critical
analysis of the two main defenses of its objectivity and impartiality. The description is
comparative and looks closely at the content of proportionality in Germany and Canada,
two systems where the method was crafted and honed. The analysis indicates that
variations in the structure of the model in these two systems can be traced to different
perceptions of the judicial role. Next, the article examines Justice Breyer’s dissenting
opinion in Heller and maps it onto the cosmopolitan model of proportionality. It finds,
unsurprisingly, that the most contentious part of proportionality is its last step: the
balancing of competing interests. If it is true that “when costs are unavoidable, balancing
30
The centrality of the institutional dimension is unsurprising. The conceptual implications of the
pervasiveness of the institutional perspective are analyzed in T.M. Scanlon, Adjusting Rights and
Balancing Values, 72 FORDHAM L. REV. 1477, 1478-1479 (2004) (“The adjustment is not best
understood… as a matter of “balancing” rights against one another. The idea of “balancing” institutionallydefined powers and prerogatives against one another hardly makes sense… values are balanced, rights are
adjusted, or redefined.”). As to the larger institutional framework of the constitution, see Alfred Stepan &
Cindy Skach, Constitutional Frameworks and Democratic Consolidation: Parliamentarism vs.
Presidentialism, WORLD POLITICS 46 (1993), pp. 1-22, at 2 (“Constitutions are essentially “institutional
frameworks” that in functioning democracies provide the basic decision rules and incentive systems
concerning government formation, the conditions under which governments can continue to rule, and the
conditions by which they can be terminated democratically.”).
9
becomes necessary,”31 then any defense of proportionality must prove the existence of an
institutionally defensible judicial standpoint within law’s “empire of objectivity.”32
The next part discusses the two most prominent of these defenses: one that seeks
grounding in the nature of constitutional rights, and a second that draws on the nature of
the constitutional system. The first defense, which is central to the reasoning in Heller,33
as well in many foreign systems,34 distinguishes between the core and the penumbra of a
right. In this view, balancing should protect the core of rights and allow for tradeoffs only
at their paler edges. As the article shows, this distinction only compounds the standpoint
problem, since the core of a right can be identified in as many ways as there are positions
from which to approach it. The second answer to the standpoint problem draws on the
nature of the constitutional system. Scholars have argued that an objective judicial
standpoint is an integral part of the “general normative structure of the legal system,”35
one that it is presupposed by rational legal discourse36 and that it is a necessary secondary
31
See Robert Alexy, Constitutional Rights, Balancing and Rationality, Ratio Juris 16 (2), (2003), at 136.
Robert Alexy, Balancing, Constitutional Review, and Representation, 3 INT’L J. CONST. L. (I-CON) 573,
574 (2005).
32
33
See supra note ___.
See Shavit supra note ___, President A. Barak at §9 (“We must aim to preserve the “core” of each …
libert[y] so that any damage will only affect the shell,”). See also The German Basic Law, Art. 19 (2)
(“[T]he essence of a basic right should never be violated”); The Constitution of Switzerland, Art 36 (4)
(“The essence of fundamental rights is inviolable”); Art 52 (1) of the Charter of Fundamental Rights of the
European Union (“Any limitation on the exercise of the rights and freedoms recognised by this Charter
must be provided for by law and respect the essence of those rights and freedoms.”). For a discussion of
this distinction in the South African context, see S. v. Makwanyane, (1995) (3) S.A.L.R. 391 (CC), para.
132-134. In the American context, this distinction was famously deployed in Griswold v. Connecticut, 381
U.S. 481, 484 (1965) (“The specific guarantees in the Bill of Rights have penumbras formed by
emanations from those guarantees that help give them life and substance.
34
35
Aharon Barak, Proportional Effect: The Israeli Experience, 57 U. TORONTO L. REV. 369, 370 (2007). See
also id., at 377 (“The criterion we must adopt is one of values. We must balance between conflicting values
and interests, against the background of the values of the Israeli legal system.”) (quoting Adalah v. Minister
of the Interior, H.C. 7052/03 at s. 74 (2006).) .
36
Robert Alexy, On Balancing and Subsumption. A Structural Comparison, RATIO JURIS vol. 14 (4), 43349 (2003), at 442 (“If rational discourse about what is correct on the basis of the Constitution is possible,
then a common point of view is possible. It becomes real as soon as rational discourse begins which is
10
rule for solving constitutional conflicts.37 These answers are sound but ultimately
inadequate since they employ conceptions of judicial objectivity ill-suited for
particularized judicial decision-making.
The last part introduces a new conceptual framework that explains and justifies
the judicial standpoint in proportionality analysis. At the core of this defense is the
concept of positional objectivity, as developed by Amartya Sen. Positional objectivity
makes two contributions to the nature of proportionality. First, it explains a salient feature
of proportionality, that it treats the parties “with equal respect and concern.”38 Second, it
serves as a starting point in articulating a structural method for testing the outcomes of
proportionality analysis for correctness. In the past, the criteria for correctness have been
procedural (has the judge accurately applied the four steps of proportionality analysis?) or
substantive (is the outcome supported by this or that theory of justice?). By emphasizing
the mutability of institutional roles, positional objectivity reveals a structural dimension
of correct outcomes for proportionality analysis. An outcome of judicial balancing is
oriented to the regulative idea of what is correct on the basis of the constitution. Whoever wants to
undermine the possibility of evaluations by appeal to the impossibility of a common point of view must
then be prepared to claim that rational discourse about evaluations in the framework of constitutional
interpretation is impossible.”).
See David Beatty, supra note ____ (The Ultimate Rule of Law), at 163 (“A constitution without some
principle to resolve cases of conflicting rights would be incoherent: it just wouldn’t make any sense.”).
Beatty refers to conflicts of rights, but, for reasons which I will discuss in Section X, the same applies to
the conflict of rights and interests, which is typical of the structure of conflicts in a constitutional system
such as the United States’ that has a state action doctrine. See generally Richard Fallon, Individual Rights
and the Powers of Government, 27 GA. L. REV. 343 (1993).
37
See David Beatty, supra note ___ (Ultimate Rule of Law), at 169 (arguing that proportionality “solve
conflict between fundamentally antagonistic moral values in a way that shows equal concern and respect
for everyone involved”). The issue of being respectful is also emphasized by scholars who defend
positionality in other areas of constitutional law. See Dan H. Kahan, David A. Hoffman & Donald
Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism,
122 HARV. L. REV. (forthcoming 2009), at 47 (“Ordering that Scott v. Harris] be decided summarily based
on the video was wrong precisely because doing so denied a dissenting group of citizens the respect they
are owed, and hence denied the law the legitimacy it needs, when the law adopts a view of the facts that
divides citizens on social, cultural and political lines.”).
38
11
correct in this sense if it is the outcome that the parties themselves would have reached if
they occupied the trans-positional role of the decision-maker. Finally, this part introduces
four different specifications of the positional objectivity of courts in proportionality
analysis, in relation to four different audiences:
lower courts (which require
administrability), the litigants (who require transparency), political institutions (which
demand fidelity to institutional design), and the judges themselves (cognitive constraints).
1. TWO MODELS OF CONSTITUTIONAL RIGHTS.
Rights are reasons in the process of constitutional interpretation. They can be understood
as either structural or substantive reasons. The former are reasons about how the
constitution allocates the decision-making authority regarding the satisfaction of
individual wants. For instance, the Second Amendment allocates to rightholders the
liberty to make decisions about owning and bearing guns. The constitution directs the
state to protect decisions of the rightholders regarding their constitutionally protected
interest. The institutional scheme that allocates decision-making powers becomes the
reason why a right is protected. I will refer to this as the “allocation” model. By contrast,
substantive reasons refer to the weight, not the nature,39 of wants and interests protected
as constitutional rights.40 The comparative weight of the substantive individual interest
(for example the right to keep and bear arms protects the interest in self-defense41) in
opposition to the collective interest (in Heller, the District’s interest in lowering crime
39
See Pildes, supra note ___ at 714.
There are of course structural accounts of rights as substantive reasons. Robert Alexy’s is an example.
See generally ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (1992).
40
41
See 128 S. Ct. 2783.
12
rates in urban areas) ultimately determines its level of constitutional protection. I will
refer to this as the “proportionality” model.
It must be pointed out at the outset that all constitutional systems, and indeed
most constitutional theorists, embrace a combination of models, although to different
degrees and in different forms. Few believe that one model fits all situations.42 The
conception of rights as substantive reasons, which focuses constitutional analysis on the
limitation – as opposed to the existence – of the right, took center stage in American law
roughly during the Warren Court era.43 Topical debates about torture show a persistent
uneasiness with entrusting judges to make decisions about limitations on rights.44
H.L.A. Hart has put this idea nicely in commenting on Robert Nozick’s conception of rights as sideconstraints (see infra__). See Hart, Between Utility and Rights, supra note ___ at 206 (“How can it be right
to lump together, and ban as equally illegitimate, things so different in their impact on individual life as
taking some of a man’s income to save others from great suffering, and killing him or taking one of his
vital organs for the same purpose?”).
42
43
Its origins go back much longer. Originally, balancing was meant to keep in check judicial discretion by
providing judges with the only open and principled method of reasoning suited to the type of questions that
come before them. Balancing was seen as a cure to the naked, ideological preference involved in how the
categorical method masqueraded as principled judicial reasoning. The method’s origins can be traced back
to Holmes’ approach to tort law, see Oliver Wendell Holmes, Privilege, Malice and Intent, 8 HARV. L.
REV. 1 (1894). Since in this paper I discuss constitutional balancing, I do not dwell on the role of balancing
in private law. For such a discussion, see Duncan Kennedy, The Disenchantment of Logically Formal Legal
Rationality, Or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal
Thought, 55 HASTINGS L. J. 1031, 1061-1076 (2004). Balancing received its most developed theoretical
foundations in the cognitive relativism strand of the critique of conceptualism and formalism that legal
realism mounted in the 1920’s and 30’s against nineteenth century legal thought. See generally MORTON
HORWITZ, THE TRANSFORMATION OF AMERICAN LAW (Oxford, 1994). On the prescriptive side of the legal
realists’ rather eclectic canon was the thesis that judges ought to be open about the difficult choices they
encounter when applying – or trying to apply- general rules to concrete cases. One method available for
their use was balancing. The legal realists saw in it an alternative to the pitfalls of deductive and analogical
reasoning, and a way of bringing law closer to the realities of social life.
44
For instance, Jeremy Waldron has argued that the right not be tortured is a legal archetype in American
law that constitutes a baseline never to be crossed. See Jeremy Waldron, Torture and Positive Law:
Jurisprudence for the White House, 105 COLUM. L. REv. 1681,1726 (2005) (“The rule against torture is
archetypal of a certain policy having to do with the relation between law and force, and the force with
which law rules. The prohibition on torture is expressive of an important underlying policy of the law,
which we might try to capture in the following way: Law is not brutal in its operation. Law is not savage.
Law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law
is forceful or coercive, it gets its way by nonbrutal methods which respect rather than mutilate the dignity
and agency of those who are its subjects.”).
13
Similarly, in Germany, where the proportionality model was first conceptualized,45 and
from where it has spread around the world,46 the Basic Law – Germany’s constitution –
proclaims the right to dignity as inviolable.47 Likewise, scholars who have defended the
model of rights as categorical reasons will yet acknowledge situations when rights may
need to be limited.48 Few believe that one model fits all situations.49
1.1. Rights as Structural Reasons: The Allocation model.
Understood as structural devices, rights delimit constitutional spheres of authority.50
Whether a rightholder burns a flag or criticizes the government’s energy policy, her right
to free speech shields her actions from governmental intrusion, no matter how strong the
45
See Alec Stone Sweet, Proportionality, Balancing and Global Constitutionalism (work in progress);
DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 307-310 (1994).
46
See Aharon Barak, Proportionality Effect: The Israeli Experience, 57 U. TORONTO L. REV. 369, 370
(2007) (tracing the influence of proportionality in Israel back to German law); NICHOLAS EMILIOU, THE
PRINCIPLE OF PROPORTIONALITY IN EUROPEAN LAW: A COMPARATIVE STUDY (1996).
German Basic Law, Art 1(1): “The dignity of man inviolable. To respect and protect it is the duty of all
state authority.”
47
48
See Frederick Schauer, A Comment on the Structure of Rights, 27 GA. L. REV. 415, 422-425 (1993)
(discussing the situations of “catastrophes” when prominent nonconsequentialist rights theorists such as
Charles Fried, Robert Nozick, Ronald Dworkin allow that consequential interest “block” rights claims).
H.L.A. Hart has put this idea nicely in commenting on Robert Nozick’s conception of rights as sideconstraints (see infra__). See Hart, Between Utility and Rights, supra note ___ at 206 (“How can it be right
to lump together, and ban as equally illegitimate, things so different in their impact on individual life as
taking some of a man’s income to save others from great suffering, and killing him or taking one of his
vital organs for the same purpose?”).
49
See Pildes, Avoiding Balancing, supra note ___ at 722 (“Rights are best understood as the way
constitutional law marks the boundaries between different spheres of political authority.”). Different
approaches can be distinguished depending on how the spheres of authority are carved out. They will be
differently carved out if rights are understood as side-constraints that block off any interference with the
interest protected by the right in the name of the common good. See ROBERT NOZICK, ANARCHY, STATE
AND UTOPIA 29-33 (1975). Nozick’s is a moral theory of rights, but its special characteristic is that it
defines moral rights as if they were legal rights. See Hart, Between Utility and Rights, supra note ___ at
205. The delimitation of the sphere of authority will be different when the right limits the kinds of reasons
that can be invoked in the pursuit of the common good. See generally RONALD DWORKIN, TAKING RIGHTS
SERIOUSLY (1977). For this interpretation of Dworkin, see Jeremy Waldron, Pildes on Dworkin’s Theory of
Rights, 29 J. LEGAL STUDIES 301, 305 (2000) (“Everything depends on whether our understanding of the
right is that a certain interest, understood in itself, is to be insulated from any compromise or derogation in
the name of the general good, or whether our understanding is that the interest in question is just an interest
in not being at the mercy of certain sorts of reasons and considerations.”).
50
14
government’s reasons for interference might be. Put differently, the right gives her an
exclusionary reason to demand courts to dismiss as irrelevant – not weak or otherwise
defective – claims to the satisfaction of collective goals that conflict with the interests
that her right protects.51 Similarly, it enables judges to act on the right-holder’s
(structural) reason that the constitution has made her the decision-maker in these matters,
irrespective of the judge’s personal reaction to the substantive exercise of her right. 52 To
be sure, the allocational scheme itself is “the very product of an interest-balancing by the
people,” as Justice Scalia reminds us.53 But the adoption of the free speech right alters the
nature of the protected interests: speech is no longer protected because it is important but
rather because the constitution says so.
According to the allocation model, rights are devices for the fragmentation of
political authority into different spheres. Infringements on rights require “an assessment
of the state’s justifications for action in light of the principles that defined the legitimate
basis for state action in the particular sphere in question.”54 This conception is
institutional through and through. Within the constitutional scheme, protected interests
are always seen through an institutional lens. As one author put it, “a litigant’s reference
to freedom of speech or conscience is not simply a claim for immediate satisfaction, but
is the assertion of an interest which can be understood only as a reference to systemic
51
On the idea of exclusionary reasons, see JOSEPH RAZ, PRACTICAL REASON AND NORMS 35-49 (1975). See
also Waldron, Pildes on Dworkin’s Theory of Rights), supra note ? at 301 (“Rights are limits on the kinds
of reasons that the state can appropriately invoke in order to justify its actions”). See also Pildes, Avoiding
Balancing, supra note____ at 712.
Carey v. Population Services International, 431 U.S. 678 (1977) (“T]he teaching of Griswold is that the
Constitution protects individual decisions in matters of childbearing from unjustified intrusions by the
State.”).
52
53
128 S. Ct. 2783 at 2821.
54
Pildes, Avoiding Balancing, supra note ___ at 713.
15
ways of doing things, to roles, institutions and practices.”55 A right to free speech is a
second-order reason about how the constitution allocates decision-making power within
the spheres of authority which it carves out.
How accurately does the allocation model describe constitutional practice? At
first blush, it seems that many constitutional debates can be framed as structural disputes
regarding the constitutional allocation of decision-making power. Does the constitution
allocate the authority to make decisions in end of life situations to the dying patient and
her doctor, or to the state?56 Does it give the authority to broadcast hate speech to the
speaker or to the government?57 Does it leave it to the rightholder or to the majority to
decide if loaded handguns can be kept at home in urban areas with high crime rates?58
Stephen Gardbaum has helpfully described the mechanism that facilitates the
structural reframing of constitutional questions. He has distinguished between internal
limits that are infringements on rights, which require judicial determinations about the
meaning and the scope of a right, and external limits that concern “the power of the
legislature to limit or override the right as defined.”59 The fact that obscenities are not
Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test, 76
HARV. L. REV. 755 (1963), at 769.
55
56
Washington v. Glucksberg 521 U.S. 702 (1997) (holding that a rational relationship existed between a
state’s ban on assisted suicide and a legitimate state interest, and that further the due process clause did not
encompass a fundamental liberty interest in assisted suicide); Cruzan v. Director, Missouri Dept. of Health,
497 U.S. 261 (1990) (holding that a state did not violate the Due Process Clause where it prohibited
causing or aiding a suicide).
57
R.A.V v. City of St. Paul, 505 U.S. 377 (1992) (holding that a city ordinance prohibiting cias-motivated
disorderly conduct was facially invalid under the First Amendment); Virginia v. Black, 538 U.S. 343
(2003) (holding that an ordinance prohibiting cross burning is on its face invalid under the First
Amendment).
58
Which was the question in Heller. 128 S. Ct. 2783.
59
Gardbaum, Limiting Constitutional Rights, see supra note ? at 795.
16
protected under free speech is an internal limit on the First Amendment right.60 The
requirement that only a narrowly tailored measure advancing a compelling state interest
can limit the right not to be discriminated against on the basis of one’s race is an external
limitation on the Fourteenth Amendment right to equal protection.61 While “the same
deep structure of rights is common to most constitutional systems, including the United
States,”62 Gardbaum points out that in the particular case of American law, limitations are
implied, in the sense that there are no express constitutional provisions to that effect.63
Because of this combination of internal and implied limits on rights, the
distinction between, on the one hand, the existence of a right coupled with the existence
of an infringement, and, on the other hand, the justification of that infringement, is
conceptually tenable but oftentimes difficult to separate in practice. This accentuates a
tendency to collapse the two stages by assuming that if a right produces no effects, it
must be the case that the right did not exist in the first place. Consider the case of whether
a general ban on drugs as applied to religious rituals of ingesting peyote violates the free
exercise clause.64 The Supreme Court held that it does not. Should that decision be
interpreted that the rightholder has a right to free exercise of religion, but that the
government can limit that right through neutral laws of general applicability? That
formulation, which keeps distinct the two stages, is alien to American constitutional
60
Roth v. U.S. 354 U.S. 476 (1957), Miller v. California, 413 U.S. 15 (1973); Paris Adult Theater I v.
Slaton 413 U.S. 49 (1973).
61
Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Grutter v. Bollinger, 539 U.S. 306
(2003)Gratz v. Bollinger, 539 U.S. 244 (2003) .
62
See Gardbaum, Limiting Constitutional Rights, supra note ___ at 809.
63
Gardbaum, Limiting Constitutional Rights, supra note ___ at 805.
64
Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660 (1988).
17
discourse. Americans say, rather, that there is no free exercise right to ingest peyote when
a drug ban is in effect.
Collapsing the existence and the limitation stages in rights interpretation enhances
the perception of a deontological, non-negotiable dimension of rights. The effects of this
approach reinforce the widespread conception of rights instilled in the American
constitutional culture.65 This conception is formulated as the separation between law and
politics, with related claims to law’s objectivity, which together serve as grounds for
“constitutional patriotism.”66 In this view, the constitution forms the basis – perhaps, the
only common basis - for social cohesion in a society where pluralism is a permanent
“circumstance of politics.”67 In rights interpretation according to the allocation model, the
initial definitional stage absorbs the energy of the interpretative effort.68 The first stage is
preferred on the grounds that decisions about internal limits, which occur at that stage,
have the appearance of being applied independently of political will.69 The method
includes ex post facto the limitations of the right in its definition;
70
as in: there is no
65
On the question of constitutional culture, see Robert Post, Forward: Fashioning the Legal Constitution:
Culture, Courts, and Law, 117 HARV. L. REV. 4 (2003). On the impact of rights discourse on American
culture more generally, see MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL
DISCOURSE (1993). On a historical-cultural account of the development of American constitutionalism, see
Jed Rubenfeld, Unilateralism and Constitutionalism, 79 NYU L. Rev. 1971 (2004).
66
See generally Frank I. Michelman, Morality, Identity and "Constitutional Patriotism", RATIO JURIS 14
(3), 253-271 (2002); JAN-WERNER MÜLLER, CONSTITUTIONAL PATRIOTISM (2007).
For a descriptive account of reliance on law’s objectivity in the American public culture, see Frank
Michelman, Integrity-Anxiety? in MICHAEL IGNATIEFF (ED.), AMERICAN EXCEPTIONALISM AND HUMAN
RIGHTS (2005); see also SANFORD LEVINSON, CONSTITUTIONAL FAITH (1989).
67
68
Hence the phrase “definitional balancing,” employed in areas beyond the First Amendment.
69
Gardbaum, Limiting Constitutional Rights, supra ___ at 803.
70
This is the method that Kumm describes, without endorsing, for preserving the perception of absolute
rights. See Kumm, Constitutional Rights as Principles, supra note ____ at 592 (explaining how “to define
the scope of an absolute right to include the reasons that justify an infringement of the protected interest,”
and pointing out a more ingenious way “to include in the definition of the right only the reasons against
which the right-holder enjoys categorical protection”).
18
constitutional right to ingesting peyote when a drug ban is in force71 or the adulterous
genetic father does not have a constitutional right to visit with his child72 and so on.73
The danger is that, when taking this approach too far and too “low,”74 rights stop being
reasons and become outcomes. If “rights as outcomes” is ever an appropriate model, it
can only be so for “easy cases.”75 For instance, it is settled law that political speech is
protected under the First Amendment, and the right to free political speech is an outcome,
as well as an automatic reason. However, it is less clear how appropriate the allocation
model is in cases where complex rights interpretation is necessary.
Let us now turn briefly to what gives the allocation model its appeal. As we have
seen, this model explains and justifies the deontological character of constitutional rights.
To understand rights as structural reasons is to recognize that their nature, and
corresponding role in the justification of power, is different from that of basic goods.76
Free speech or the freedom to practice one’s religion is not like an iPod or designer
clothes, or any other consumer good we might wish to own, but have no special right to
demand. Rather, as Dworkin put it, “if someone has a right to something, then it is wrong
for the government to deny it to him even though it would be in the general interest to do
so.”77 Whether described as “side-constraints,”78, “trumps”79 or “shields,”80 constitutional
71
Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660 (1988).
72
Michael H v. Gerald D., 491 U.S. 505 (1989).
That is no surprise since “the result of every correct balancing of constitutional rights can be formulated
in terms of a derivative constitutional rights norm in the form of a rule under which the case can be
subsumed”) Alexy, Theory of Constitutional Rights, supra note ____ at 56. I analyze Alexy’s conception in
greater detail in the next sections.
73
74
The issue of levels of generality in the definition of constitutional rights is well known. See generally
LAURENCE H. TRIBE AND MICHAEL DORF, ON READING THE CONSTITUTION 73-80 (1991).
75
See Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985).
76
Jürgen Habermas, supra note ___ (Between Facts and Norms), at 257.
77
Ronald Dworkin, supra note ___ (Taking Rights Seriously), at 269.
19
rights have an anti-utilitarian animus.81 The calculus of interests through balancing
should not be allowed to erode that animus.82
A second factor that contributes to the appeal of the allocation model is its
approach to the judicial standpoint. By frontloading the interpretation of rights to the
existence stage, this model appears to limit judicial discretion. It avoids difficulties such
as the incommensurability of interests or the temptation to rule as Platonic philosopherkings.83 Judges might be evenhanded managers,84 or über-jurists, like Dworkin’s
Hercules,85 but in either case they are part of defensible (albeit wildly different)
interpretations of the constitutional structure.86 The requirement that the shell of rights be
78
Robert Nozick, supra note ___ (Anarchy, State and Utopia), at 29-33.
79
Ronald Dworkin, Rights as Trumps, in JEREMY WALDRON, RIGHTS 157-167 (1984).
80
Frederick Schauer, A Comment on the Structure of Rights, 27 GA. L. REV. 415, 430 (1993).
81
See Ronald Dworkin, supra note ___ (Taking Rights Seriously) at 277 (arguing that rights are responses
to the “defects of a utilitarianism that counts external preferences and to the practical impossibility of a
utilitarianism that does not”). This critique is adapted to the specific contexts of different constitutional
systems. See also Jürgen Habermas, supra note ___ (Between Facts and Norms) at 259 (“Insofar as a
constitutional court adopts the doctrine of an objective order of values and bases its decision making on a
kind of moral realism and moral conventionalism, the danger of irrational rulings increases, because
functionalist arguments then gain the upper hand over the normative ones.”). Habermas is referring here to
the existence of an objective order of values in the German constitutional system. The locus of the main
doctrinal development is Lüth Case (7 BvERFge 198, 1958), excerpted in DONALD P. KOMMERS, THE
CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 361-369 (1997).
See H.L.A. Hart, supra note ___ (Between Utility and Rights), at 198 (“Whereas not long ago great
energy and much ingenuity of many philosophers were devoted to making some form of utilitarianism
work, latterly such energies and ingenuity have been devoted to the articulation of theories of basic
rights.”).
82
83
cite the Republic?
84
See Charles Fried, supra note ___ (Two Concepts of Interests) at 770. Exercising restraint by staying
within this institutional, managerial role is presumably all the more important in a legal system where
courts have ascribed that role to themselves.
85
See RONALD DWORKIN, LAW’S EMPIRE (1986).
This statement requires qualification with respect to Dworkin. Scholars have derived from Dworkin’s
reference to Hercules, a judge of special powers, that his theory bypasses institutional concerns. See
Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101
MICH. L. REV. 952, 955 (2003). Nevertheless, as Posner correctly points out, Dworkin “wants to show that
loose institutional] construction is consistent to fidelity to the intent of the legislators, including the
framers and ratifiers of the Constitution.” (Posner, ibid.). All too often, scholars fail to distinguish between
86
20
preserved in judicial interpretation guarantees that courts won’t step outside of their own
institutional roles. Interest-balancing puts judges in an “Olympian”
87
position from
which they may deliver all-things-considered, Solomonic decisions. While those
decisions may be wise, just or “correct,” they remain decisions of individual personalities
rather than those of “judges who decide cases by virtue of their authority, and not
because they are any more likely to be right than other people.” 88
This approach shifts the focus of the constitutional controversies from substance
to structure. The shift itself does not resolve these controversies because the allocational
scheme of institutional roles is not self-evident, and its interpretation leads to radically
different outcomes. If rights carve out spheres of authority, the correct allocation of
powers will require interpreting the meaning of a right. At least sometimes, and within
limits, this authority gives rightholders a say in determining what constitutes the essence
of their rights and in what direction its ambit extends. Does the ban on using drugs as
applied to ingesting peyote violate free exercise? How about not paying taxes89 or not
schooling children90 in the name of religious belief?
Ultimately, the virtue in emphasizing the institutional dimension of constitutional
controversies is not so much to solve them as to remind us what they are about. For
institutional analysis and acceptance of a particular institutional arrangement. See generally Cass R.
Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885 (2003).
87
See Charles Fried, supra note ___ (Two Concepts of Interests) at 761.
88
See Charles Fried, supra note ___ (Two Concepts of Interests), at 761.
89
United States v. Lee, 455 U.S. 252 (1982) (holding that a statute allowing self-employed individuals to
opt out of social security taxes did not reach other employees and employers, and that although payment of
such tax or receipt of benefits flowing from such tax interfered with the free exercise of Amish religious
beliefs, this conflict did not exempt Amish employers from the uniform obligation on employers to
contribute to social security, absent specific and explicit provision otherwise by Congress).
90
Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that the First and Fourteenth Amendments shield
Amish parents from the state’s requirement that their children attend formal tuition between graduation
from the eighth grade and their 16th birthday).
21
instance, the question as to whether terminally ill patients have a constitutional right to
experimental drugs91 is not one about the wisdom of the choice to take such a risk
(whether or not it is good to put oneself at a heightened risk from insufficiently tested and
thus potentially unsafe drugs). Rather, it about whose decision, from the point of view of
the constitution, it is to make (the patient’s, the patient’s with his doctor, the state’s) that
the risk is or is not worth taking. These questions, of course, come to courts. But the
judicial duty, when the constitution is understood as an allocational scheme, is to defer to
the institutional actor who has been allocated the applicable decision-making power.
There will be disagreement about who that actor is, and here the circle goes round again.
While the shift from substance to structure makes the allocation model appealing,
persistent disagreement about the institutional structure undermines its strength. As the
next section will begin to explore, the model of rights as substantive reasons (the
proportionality model) rests on institutional foundations at least as solid as those of the
allocation model.
1.2. Rights as Substantive Reasons: The Proportionality Model.
According this model, rights are substantive claims to institutional protection of select
individual needs. From a multitude of human wants, the pouvouir constituant selects
those sufficiently important to summon the coercive force of the state for their protection,
91
See Abigail Alliance for Better Access to Experimental Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir.
2007), cert. denied mem., 128 S.Ct. 1069 (2008) (holding that the Due Process Clause does not encompass
a fundamental right of terminally ill adults to access investigational drugs, neither the common law doctrine
of necessity nor that of self-defense weighs in favor of the asserted right, and that the challenged FDA
policy bore a rational relation to a legitimate state interest and did not amount to a tort (of intentionally
preventing necessary aid)).
22
or, as in cases where they impose affirmative duties on the state, their realization.92 Free
speech, privacy, self-defense and the free exercise of religion are examples of supervalued, institutionally sanctioned wants.93 Contrary to the model of rights as structural
reasons, which demands the preservation of a right’s institutional shell, this conception
allows the judicial interpreter to break the shell encasing the right and gain access to the
background interests.94
In this model it is easier to separate internal from external limits on rights.
Government overrule does not undermine the existence of a right.95 One continues to
have a right to free exercise of religion even if the government can limit it by enacting a
ban on drugs.96 Similarly, one continues to have a right to keep and bear arms even if the
state can regulate the conditions of its exercise in certain situations.97 The effect of this
92
The legal recognition of interests is of course not unidirectional. Some interests do not preexist legal
norms; they are, rather, a consequence of their existence. The expectation that a benefit-granting statutory
scheme will not be discontinued absent change in circumstances may give rise to interests that cannot
logically precede the adoption of that scheme. See Goldberg v. Kelly, 397 U.S. 254 (1970).
Other constitutional systems – South Africa, Brazil, Romania - confer protection to a broader set of
social and economics interests, including health, education etc. A similar development has been advocated
in the United States. See CASS SUNSTEIN, THE SECOND BILL OF RIGHTS (2004). For a discussion of positive
vs. negative rights in constitutional law, relevant in this context, see generally Laurence H. Tribe, The
Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties and the Dilemma of Dependence, 99
HARV. L. REV. 330 (1985).
93
94
For an analytical discussion of the relations between background justifications and rules, see FREDERICK
SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING
IN LAW AND IN LIFE (1991). For an argument by the same author that rights are rules, see Frederick
Schauer, Rights as Rules, 5 LAW AND PHILOSOPHY 115 (1987).
128 S. Ct. 2783 at 2850 (Breyer, J. dissenting) (“This historical evidence demonstrates that a self-defense
assumption is the beginning, rather than the end, of any constitutional inquiry. That the District law impacts
self-defense merely raises questions about the law’s constitutionality. But to answer the questions that are
raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the
statute’s rationale, the problems that called it into being, its relation to other objectives – in a word, the
details. There are no purely logical or conceptual answers to such questions.”).
95
96
Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660 (1988).
97
128 S. Ct. 2783.
23
approach is especially strong when constitutional rights are defines broadly98, which
marks a shift in judicial interpretation to the application stage of the analytical process. In
contrast to the allocation model, which emphasizes the definitional stage of a right, this
model focuses more on the validity of the infringement and uses the method of
proportionality in making judicial decisions on whether such infringements are
constitutional. For instance, when asked to decide whether there is a constitutional right
to physician-assisted suicide, the court would decide easily that individuals have a
privacy interest in these situations and then spend the superior quantum of its analytical
energy in deciding whether the government has sufficiently good reasons to limit its
exercise.99
In this model, rights are not categorical reasons. The mere existence of a privacy
interest does not imply that the rightholder can claim protection for its exercise. But what
can rights possibly be if not categorical reasons? Robert Alexy has argued that they are
“optimization requirements,” that is, requirements that something be realized to the
greatest extent possible.100 Alexy arrives at that conclusion after first distinguishing
between two types of legal norms: rules and principles.101 Rules operate in all-or-nothing
fashion and their conflicts are played out at the level of validity. 102 The conception of
rights as outcomes, or as categorical reasons that automatically settle disputes comes
close to that conception, and is, in Alexy’s view, mistaken. Alexy argues that
98
This is the case in most constitutional systems, including the ones mentioned in this article: Germany,
Canada, and South Africa.
99
Washington v. Glucksberg, 521 U.S. 702 (1997).
100
See Robert Alexy, supra note ___ (Theory of Constitutional Rights), at 47.
101
See Mattias Kumm, supra note ___ (Constitutional Rights as Principles), at 577.
102
See Robert Alexy, supra note ___ (Theory of Constitutional Rights), at 50.
24
constitutional rights are not rules, but principles. They require that something, such as
background interests, be realized to the greatest extent possible given a universe of legal
possibilities as defined by opposing principles and rules.103 Unlike rules, which submit to
the binary logic of validity, principles that enter into competition are already valid; their
competition is played out instead in the dimension of weight. 104 Much can – and will105 be said about this theory, but the aim for now is simply to sketch out the theoretical
underpinnings of rights as substantive reasons.
Two consequences follow from understanding rights as substantive reasons and
interpreting them broadly. First, the cumulative effect of the justificatory burdens on the
government is significant. To define constitutional rights broadly is to extend the array of
individual interests and wants that receive at least prima facie institutional protection.
Governmental policies are thus proportionately more likely to infringe upon rights that
are, in this expansive sense, constitutional. Such infringements will survive constitutional
scrutiny only to the extent the limitations on the exercise of rights are justified. The
government’s capacity to implement its policies without having to meet demanding
justificatory standards accordingly shrinks.106 This model enhances the role of the
judiciary since it is up to courts to determine if the government has met its justificatory
burden. It is thus critical to be able to defend the judiciary’s institutional standpoint.
103
See Robert Alexy, supra note ___ (Theory of Constitutional Rights), at 48.
104
See Robert Alexy, supra note ___ (Theory of Constitutional Rights), at 50.
105
See infra___.
106
This system might still be preferable to that of incidental burdens that raises difficult questions of
causality. For a study of incidental burdens, see Michael Dorf, Incidental Burdens on Fundamental Rights,
109 HARV. L. REV. 1175 (1996).
25
Second, the conceptualization of rights as substantive reasons “downgrades”
rights. There is a risk of rights becoming “just rhetorical flourish”107 as in situations when
“having a right does not confer much on the rights holder.”108 Breaking the institutional
shell of rights makes rights-claims tantamount to interest-claims, namely substantive
reasons for demanding a particular institutional response. This “downgrading,” or
“recalibrating,” explains why rights and state interests can enter the balancing calculus
side by side. Roscoe Pound noted long ago that “when it comes to weighing or valuing
claims or demands with respect to other claims or demands, we must be careful to
compare them on the same plane.”109 Constitutional rights and state interests are on the
same plane because, the moment constitutional rights enter the decisional calculus, they
have already become “interests.”110
This feature underscores a central difference between the models of rights as
structural and as substantive reasons. According to the latter conception, rights and
interests are prioritized based on their comparative weight, not on their respective
nature.111 But even if constitutional rights and state interests find themselves on the same
plane of substantive reasons, are they necessarily on an equal footing?
David Beatty, supra note ___ (Ultimate Rule of Law), at 171 (“When rights are factored into an analysis
organized around the principle of proportionality, they have no special force as trumps. They are just
rhetorical flourish.”).
107
Mattias Kumm, supra note ___ (Constitutional Rights as Principles), at 582. (“Having a right does not
confer much on the rights holder: that is to say, the fact that he or she has a prima facie right does not imply
a position that entitles him/her to prevail over countervailing considerations of policy.”).
108
109
Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 2 (1943) (cited in Richard H. Pildes,
Conceptions of Value of Legal Thought, 90 MICH. L. REV. 1520, 1530-1531 (1992)). But see John Rawls,
Two Concepts of Rules, THE PHILOSOPHICAL REVIEW, 64 (1955): 3-32
110
See generally Richard Fallon, Individual Rights and the Powers of Government, 27 GA. L. REV. 343
(1993).
111
See Richard Pildes, see supra note ___ (Avoiding Balancing), at 749.
26
In Heller, Justice Breyer argued that there is “no purely logical or conceptual
answer” 112 to the question of the priority of interests.113 Comparative experience on this
particular question is eclectic. Legislative history of Canada’s Charter of Rights, which
the next section will discuss in greater detail, suggested a choice for the primacy of
individual interests.114 Its early interpretations by the Canadian Supreme Court operated
under the original understanding that limitations of rights are exceptions.115 A similar
approach was dominant early in German law,116 but it has changed over time. As a
former Judge on the German Constitutional Court characterized the current approach:
“The function of the constitutional guarantees of rights is not to make limitations as
difficult as possible but to require special justifications for limitations that make them
compatible with the general principles of individual autonomy and dignity.” 117 Contrast
this approach with the conception of rights as structural reasons, or categorically stronger
reasons. Justice Scalia’s comment in Heller should be heard in this categorical key:
128 S. Ct. at 2850 (Breyer, J., dissenting) (“This historical evidence demonstrates that a self-defense
assumption is the beginning, rather than the end, of any constitutional inquiry. That the District law impacts
self-defense merely raises questions about the law’s constitutionality. But to answer the questions that are
raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the
statute’s rationale, the problems that called it into being, its relation to other objectives – in a word, the
details. There are no purely logical or conceptual answers to such questions.”).
112
113
See 128 S. Ct. at 25851-52 (Breyer, J., dissenting) (rejecting both rationality review, which presumes
that the state interest is stronger than the rightholder’s, and strict scrutiny, which operates with the opposite
assumption, in favor of proportionality analysis). For a description of Breyer’s dissenting opinion, see
Section 2.1.2.
114
See Sujit Choudhry, So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis
under the Canadian Charter’s Section 1, 34 S.C.L.R. (2d) 501, 506 (2006).
115
Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO
L. J. 384, 391 (2007) (analyzing the Oakes decision of the Canadian Supreme Court).
116
See Alec Stone Sweet, supra note ___ (Proportionality, Balancing and Global Constitutionalism), at 17.
117
See Dieter Grimm, supra note ___ (Proportionality in Canadian and German Constitutional
Jurisprudence), at 391.(“From the beginning, limitations on fundamental rights were regarded as normal,
because all rights and freedoms can collide or can be misused. Harmonization of colliding rights and
prevention of abuses of liberty are normal tasks of the legislature. The function of the constitutional
guarantees of rights is not to make limitations as difficult as possible by to require special justifications for
limitations that make them compatible with the general principles of individual autonomy and dignity.”).
27
“whatever else the 2nd Amendment leaves to future interpretation, it surely elevates
above all other interests the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.”118
Even within the proportionality model, rights are not categorically stronger
reasons; they need not be understood as equivalent in strength to the state interests. In
fact, rights can be conceptualized as prima facie stronger reasons than the collective
interests promoted by the government. First, the burden of proof is distributed so that
rights prevail by default if the state fails to justify the limitation. If rights are interpreted
broadly, the burden on the individual can be easily met at the first stage of interpretation
(when the existence of the right is confirmed or denied), and then shifts on to the state,
which must prove that its infringement is justified. Second, the interests that rights
protect have a recognized pedigree, because these interests, and wants, have been singled
118
128 S. Ct. at 2821. A note of caution is necessary when analysis draws on comparative law such as here.
Critics of proportionality model are likely to see the German largesse with limitations on rights as a threat
to the fundamental interests of individuals. Yet attention to details, so important with comparative analysis,
might quiet some of these misgivings. See Mark Tushnet, Some Reflections on Method in Comparative
Constitutional Law, in SUJIT CHOUDHRY (ED.), THE MIGRATION OF CONSTITUTIONAL IDEAS 76-79 (2006)
(discussing the importance of institutional and doctrinal context in comparative constitutional law). While
the typical structure of constitutional litigation in American constitutional law sets up individuals in
opposition to the state, in modern German constitutional law, constitutional norms also apply horizontally
as between individuals. For a similar causal explanation, see generally Dieter Grimm, supra note ___
(Proportionality), at 392; Mattias Kumm, supra note ___ (Constitutional Rights as Principles), at 590
(discussing Alexy’s choice to puts rights and collective goals on the same plane). For a discussion of the
state action more generally, see also Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights,
102 MICH. L. REV. 388-459 (2003); Frank I. Michelman, Bill of Rights, the Common Law and the Freedom
Friendly State, 58 MIAMI L. REV. 401 (2003).Given the asymmetry of power between individuals and the
state, it is reasonable to argue in constitutional systems that have a state action doctrine that rights are a
thumb on the scale of the rightholder’s interests. The doctrine does not apply to free speech. See New York
Times Co. v. Sullivan, 376 U.S. 254 (1964). Interestingly, Justice Breyer’s position in Heller is crafted as
compatible with presumptions, albeit rebuttable, in favor of either individual or state interests in all areas of
law but only with respect to the Second Amendment where the judiciary has little accumulated experience.
As we will see in Section 2.1.2., his model of proportionality may be applied more broadly. The formal
levels of scrutiny in constitutional analysis can straightjacket the freedom to fine-tune legal analysis to the
specificity of each case, as constitutional pragmatism recommends. See STEPHEN BREYER, ACTIVE
LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005).
28
out to receive the highest form of legal protection (protection as constitutional rights) at
the time when the constitutional norm was adopted.119 The fact that the background needs
resurface in the proportionality analysis is a reminder of what makes them worth
protecting. Kathleen Sullivan has defended balancing on this ground. She writes,
contrasting balancing to rule-based categorical reasoning, that: “[R]ules lose vitality
unless their reason for existing is reiterated. Even if they are simply the precipitate of an
implicit prior balancing, better to redo the balancing every time. It takes longer but it’s
worth it.”120
There remains, however, a significant risk even when rights are understood as the
prima facie stronger substantive reasons. As Justice Scalia puts it: “A constitutional
guarantee subject to future judges’ assessments of its usefulness is no constitutional
guarantee at all.”121 No matter how strong, rights as substantive reasons are mere
“reasons which can be displaced by other reasons.”122 It appears that the judiciary is the
only defense mechanism. We are thus back to our initial observation, that this model
This is J. Scalia’s reason why it is illegitimate for judges to balance competing interests, since the right
“is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for
them anew.” 128 S. Ct. at 2821.
119
120
Kathleen Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L.
REV. 293, 309 ( 1992) (footnotes omitted).
121
128 S. Ct. at 2821.
122
Robert Alexy, supra note ___ (Theory of Constitutional Rights), at 57. Alexy is unapologetic about this
feature. Writing about the German constitutional system, he goes on to say that: “Principles - i.e., rights
(my comment) – are not definitive but only prima facie requirements. It does not follow from the fact that a
principle is relevant to a case that what the principle requires actually applies.” (id.). It is of course possible
to devise categorical protections within the model of rights as substantive reasons. As Kumm reminds us,
certain types of reasons – say, religious reasons for introducing prayer in public schools – are categorically
excluded from the comparative weighting of interests in proportionality analysis. See Mattias Kumm, supra
note ___ (Constitutional Rights as Principles), at 591. See also: “the fact that an account of principles as
optimization requirements does not accord priority to individual rights over collective goods on the
structural level, then, does not mean that such a priority cannot be given adequate expression within that
structure” (id., at 592). But there are few such instances, and more importantly, even cumulatively they do
not make up for the lack of categorical guarantees that the collective interest will not prevail.
29
places a heavy burden on the judiciary since ultimately the satisfaction of the interests
that rights protect depends on persuading the judges not to displace them.
So it is one thing to criticize this model on the ground that it misrepresents the
nature of rights, while it is quite another to argue that the method is “freestanding” and
thus flawed on institutional grounds. Quite often, though not always, the rights approach
is influenced by institutional calculations. As the next part will show, these are concerns
to which proportionality analysis has been addressed in guiding the judicial enforcement
of rights as substantive reasons. We will ask of what this method consists, and whether it
is institutionally defensible.
2. THE PROPORTIONALITY DEBATE.
This part introduces the method of proportionality and examines its conception of
the judicial standpoint. The first section discusses the proportionality test, from both a
comparative and domestic perspective. The second section presents two types of defenses
of the judicial standpoint in proportionality analysis; one that traces the defense to the
nature of constitutional rights (the core/periphery distinction) and a second one that
locates itself within the rules for conflict resolution in a constitutional system.
2.1. The Proportionality Test.
This section begins with study of proportionality in advanced constitutional
systems that have an experience of at least a few decades of applying this method. While
occasional reference is made to a number of different jurisdictions, the main systems
identified for comparative analysis are Canada and Germany. After describing the four
30
different parts of the proportionality test, the section points out variations in how the
method is structured in different jurisdictions. These variations stem from how judicial
actors perceive institutional challenges, particularly in relation to the judicial standpoint.
Rather than operate in an institution-free environment, as its critics have asserted,
proportionality is structured by institutional concerns, similar to the ones that inform the
allocation model.
2.1.1. Comparative Perspective: Canada and Germany.
From South Africa to Germany and from Israel to Canada or the European Court of
Human Rights, courts use the method of proportionality in reviewing the legality of
“external limitations” on constitutional rights. With its roots in nineteenth century
Prussian administrative law,123 proportionality has developed under strong crossjurisdictional influences since the Second World War into its current iteration as the
method used by constitutional courts around the world.124 The inclusion in modern
constitutions of clauses that regulate limitations on rights explains this development.
These clauses can accompany specific constitutional provisions, as for example in the
European Convention on Human Rights.125 Other clauses, such as Article 19 of the
123
See generally Alec Stone Sweet, supra note ___ (Balancing, Proportionality and Global
Constitutionalism); David Curie supra note ____ (Constitutional Law of German), at 307-309.
124
There is a long debate in comparative (private) law about legal transplants. See generally ALAN
WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (1974) (advocating transplants);
Pierre Legrand, The Same and the Different, in PIERRE LEGRAND AND RODERICK MUNDAY (EDS.),
COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS 240-311 (2003).
Article 9(2) of the European Convention on Human Rights: “Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or the protection
of the rights and freedoms of others.”
125
31
German Basic Law126 or Section 1 of the Canadian Charter or Rights and Freedom, 127 are
general and apply to virtually all the rights listed in these documents.128 Perhaps the most
comprehensive limitations clause is Art. 36 of the 1996 South African Constitution: “The
rights in the Bill of Rights may be limited only in terms of laws of general application to
the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant
factors, including: a) the nature of the right; b) the importance of the purpose of the
limitation; c) the nature and extent of the limitation; d) the relation between the limitation
and its purpose and e) less restrictive means to achieve the purpose.”
Express constitutional provisions such as these may authorize courts to review
limitations of constitutional rights, but their open-ended language articulates general
standards, not a specific method. It has been up to courts to develop such a method, and
that method has been proportionality. The method has four steps. At step one, which is
often described as preliminary, courts inquire into the purpose of the law under review.
Thence follow the three steps of the traditional proportionality analysis. First, courts ask
if the law is a suitable means for achieving the stated purpose. Then, they examine
whether or not the law is necessary to achieve those purposes, specifically in terms of
whether means less intrusive upon constitutional rights were available. The last step is
balancing, or proportionality narrowly understood. Here courts assess specifically the
Article 19 of the German Basic Law regulates restrictions of basic rights as follows: “(1) Insofar as,
under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally
and not merely to a single case. In addition, the law must specify the basic right affected and the Article in
which it appears. (2) In no case may the essence of a basic right be affected.”
126
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society.”
127
128
We have already noted the exception that the right to dignity cannot be limited in German law. See
supra note ___.
32
proportionality of the measure by balancing, on the one hand, the loss that results from
the intrusion on the constitutional right, and on the other hand, the gain from the
satisfaction of the goal pursued by the law under review. Limitations on rights that fail
any one of these steps are invalidated as violations of constitutional rights. Measures that
survive scrutiny are justified infringements of constitutional rights and valid laws.
Unsurprisingly, there are variations in how the test is applied across jurisdictions
and even over time within the same jurisdiction. I will summarily describe such
variations and argue that they are influenced by different perceptions of what the
legitimacy and objectivity of the judicial standpoint is, within a given constitutional
structure. I will also contrast this method with the balancing method that is prevalent in
American constitutional law.
The initial (preliminary) step of proportionality requires courts to examine the
purpose of the measure under review.129 Anyone familiar with constitutional review in
American law knows that this step can be quite demanding. Under a number of
established doctrines, American courts scrutinize the purpose closely. They engage in
factual inquires about the “actual purpose” of legislation, as when the Court applies strict
scrutiny, and occasionally even which it applies intermediate scrutiny, in Equal
Protection analysis.130 Likewise, under strict scrutiny, courts pass judgment on whether
the purpose of the governmental regulation is compelling. This distinction is as
consequential as it can be fine grained. For instance, in reviewing affirmative action
programs, the U.S. Supreme Court has held that remedying past historical injustice is not
129
This of course already assumes that rights can be limited. He analysis here applies to the limitation stage
of the right.
130
U.S. v. Virginia et al., 518 U.S. 515 (1996) (requiring actual purpose review); U.S. Dept. of Agriculture
v. Moreno, 413 U.S. 528 (1973).
33
a compelling interest whereas remedying past legal discrimination satisfies that
requirement.131
The approach of foreign courts at this step in the proportionality is virtually
always deferential.
Courts in Germany and Israel routinely take for granted the
legitimacy of a law’s purpose, for reasons of separation of powers: the democratically
elected branch has the right to set its policy agenda. 132 Laws are virtually never
invalidated at the preliminary stage.133 At least initially, Canadian courts adopted a
different approach. They imposed a higher threshold on the government by asking that
the governmental objective be of “pressing and substantial”134 concern or “sufficiently
important to justify overriding a Charter [constitutionally protected] right”135 Over time
however, as the other steps in the analysis have become more substantial, even Canadian
courts have begun to defer more and more to the legislature.136
The next step requires courts to examine the connection between the stated
purpose of the law and its content. At least in theory, this test can potentially be quite
demanding as well. It is virtually impossible to craft general laws that are tailored
131
See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S. Ct. 2738 (2007).
132
See Grimm, Proportionality, supra note ___, at 388.
133
Justice Barak, former President of the Israeli Supreme Court, has expressed doubts about the wisdom of
deferring to the legislator. See Aharon Barak, Proportional Effect, supra note ?, at 371 (“Despite the
centrality of the object component, no statute in Israel has been annulled merely because of the lack of a
proper object [or purpose]. A similar approach exists in German constitutional law … This is regrettable.
The object component should be given an independent and central role in examining constitutionality,
without linking it solely with the means for realizing it. Indeed, not every object is proper from the
constitutional perspective. This is not the expression of a lack of confidence in the legislature; rather it is
the expression of the status of human rights.”) (footnotes omitted).
134
Barak, Proportional Effect, supra note ____ at 371 (quoting PETER HOGG, CONSTITUTIONAL LAW OF
CANADA, student ed. (2005) at 823.
135
Barak, Proportional Effect, supra note ____ at 380 (quoting HOGG, supra note ? at 843.
136
See generally Sujit Choudhry, supra note ___ (So What Is the Real Legacy of Oakes?), at __.
34
perfectly to fit their background justifications.137 Laws will almost always be over or
under-inclusive, and thus potentially in peril whenever their application infringes
constitutionally protected interests. The American experience with judicial review
confirms this interpretation. While over- and under-inclusiveness typically survive
scrutiny under rational basis test, they are potentially fatal when courts apply heightened
standards of the review.138
But foreign courts applying this second prong of the proportionality test do not
fulfill this dire prediction. Instead they are generous in identifying a rational connection,
and imperfections between means and ends are rarely fatal. Like the assessment of the
purpose at step one, courts assessing the suitability of a given measure usually defer to
the legislature. The only initial exception was once more the Canadian Supreme Court,
which struck down a law as over-inclusive in the famous Oakes case, wherein it detailed
for the first time the stages of proportionality analysis. In later cases however, the court
declined to reach similar conclusions for under-inclusive laws, thus gradually diluting the
strength of this prong.139
Note that both of the above two steps analyzed the aim and characteristics of the
regulation under review and that the right has not thus far entered the analysis.140 Most
laws survive at these different stages by reason of judicial deference to the political
branches. It is at this third step of the overall analysis (the second of the proportionality
test proper) that differences in the application of test across constitutional systems
137
See generally SCHAUER, PLAYING BY THE RULES, supra note ___.
138
Cite]
See R v. Edwards Books & Art Ltd. 1986] S.C.J. No. 70, 1986] 2 S.C.R. 713 (Supreme Court of
Canada).
139
140
See Grimm, Proportionality, supra note ___, at 394.
35
become stark. Courts ask if the measure under review is necessary for achieving the
stated purpose; that is if less intrusive, comparably efficient means would have been
available. This analysis requires a comparison of the impact of alternative regulations on
the constitutional right.
In contrast to the narrow tailoring requirement in American constitutional law,
this prong of the test enables courts to look beyond the regulation under scrutiny and
imagine alternative regulations.141 Some courts have taken on this task more willingly
than others. While its analysis is significantly more demanding than under the previous
two steps,142 in this one the German Constitutional Court has been comparatively more
deferential to the legislature under the assumption that “the legislature enjoys a certain
degree of political discretion in choosing the means to reach a legislative objective.” 143 In
contrast, this is the central step of the proportionality analysis under Canadian
constitutional law, where courts require the legislature to produce “cogent and
persuasive” empirical evidence to justify its infringements of rights.144 Since such
evidence is seldom available, courts found themselves in the unenviable position of
having to allocate the risks of empirical uncertainty with respect to governmental
141
See Mattias Kumm, supra note ____ (Constitutional Rights as Principles), at 580.
142
See Dieter Grimm, supra note ___ (Proportionality), at 391.
Dieter Grimm, supra note ___ (Proportionality), at 390. He also describes German test as: “A
contribution, even a slight one, is sufficient, provided that the same contribution cannot be reached by a
means that impairs the fundamental right less.” (id., at 390). Other authors have argued that German courts
are relatively demanding in their application of the second prong of the proportionality test. See David
Currie, supra note ___ (The Constitution of Germany), at 20 (comparing the German necessity requirement
narrowly defined with strict scrutiny in American constitutional law).
143
144
See Dieter Grimm, supra note ___ (Proportionality), at 389. To be sure, the test in Canada became more
fine-tuned. The Canadian Supreme Court has crafted a “reasonable apprehension of harm” test that
combines appeals to scientific evidence as well as logic and common sense. See generally Sujit Choudhry,
supra note ___ (So What Is the Real Legacy of Oakes?), at 524-530 (concluding that courts have applied
this new standard with mixed success).
36
infringements of the Charter.145 The Canadian Supreme Court has been less than
consistent in its application of this prong. The different doctrinal signposts it tried out as a
way of guiding its practice included the judiciary’s traditional expertise in the particular
policy area involved by a given case, attention to the nature of the competing interests, as
well as a distinction between the core and periphery of the rights whose violation was
alleged.146 These distinctions did not hold up in the face of the complexity of the cases, so
that the court eventually transitioned back from strict doctrinal categories to a contextbased legal analysis.147 In this process, it made itself vulnerable to critiques that it decides
cases from institutionally indefensible standpoints. If, as some (German) observers have
pointed out, the emphasis of Canadian courts on this prong of the test was intended as a
means to deflect the apparently open-ended and arbitrary balancing analysis which seems
to characterize the last stage of balancing, then the strategy has apparently misfired.148
We move now to the last part of the proportionality test. This is the balancing
part, or proportionality stricto sensu. This step is necessary because it filters out
unconstitutional measures that survive scrutiny under the previous steps. For instance, the
South African court invalidated the death penalty as unconstitutional because of the
disproportionate effects of the measure on the constitutional right to dignity.149
145
Sujit Choudhry, supra note ___ (So What Is the Real Legacy of Oakes?), at 524.
146
For more on the distinction between core and periphery, see Section 2.2.1.
147
Sujit Choudhry, supra note ___ (So What Is the Real Legacy of Oakes?), at ___.
See Dieter Grimm, supra note ___ (Proportionality), at 394-395 (“the outside observer gets the
impression that the Canadian supreme court avoids the third step out of a fear that a court might make the
policy decisions at this stage rather than legal decisions…Yet, in practice, the Court’s dealing with the
second step looks much more value laden than that of the German Court.”… “If indeed the attempt to avoid
policy considerations and value judgments is responsible for the reluctance to enter the third step, the Court
risks self-deception when all the value-oriented considerations have been made under the guise of a
seemingly value-neutral category.”).
148
149
S. v. Makwanyane, (1995) (3) SALR 391 (CC).
37
Precisely what courts do at this step depends on what was accomplished at the
previous three steps, but it typically involves a comparative weighing of the seriousness
of the infringement to the right against the degree of satisfaction to the interests protected
by the law under review.
150
If deferring at previous stages was justified on institutional
grounds, it is essential that courts proceed from an institutionally defensible standpoint at
the balancing stage. Without such a standpoint, the interests that enter the balancing
process might be incommensurable and the outcome of the balancing would be
subjective, illegitimate and “freestanding”. It is at this point that the most strident
objections to proportionality analysis rear their ugly heads.
Balancing requires a comparative weighing of the conflicting interests. More
specifically, it requires an assessment of, on the one hand, the loss to the individual
interests protected by the right that is infringed and, on the other hand, the gain to the
collective interest promoted by the measure under review. Courts need to break the
institutional shell that encases the right. Drawing on decades of experience with the
proportionality analysis of the German Constitutional Court, Robert Alexy has advanced
the following law of balancing: “The greater the degree of non-satisfaction of, or
detriment to, one right or principle, the greater must be the importance of satisfying the
other.”151 Alexy breaks down balancing into three stages: calculating the degree of nonsatisfaction, or detriment to, the first principle induced by the action at issue; followed by
150
In Canada, where, as we have seen, the action takes place at the second stage of the proportionality test,
this last step is generally confined to summing up the conclusions of the previous stages of the analysis. See
Dieter Grimm, supra note ___ (Proportionality), at 394. But the “contextual” analysis into which Canadian
courts cornered themselves also involves balancing of competing interests. So, the issue is not that
Canadian courts don’t engage in balancing but rather that the different stages of the proportionality analysis
are not neatly respected. For an argument why the separation should be respected, see Dieter Grimm, at id.
151
See Robert Alexy, supra note ____ (Theory of Constitutional Rights), at 102. For the purpose of our
analysis, we can assume a vertical constitutional conflict between the individual rightholder and the state.
38
measuring the importance of satisfying the competing principle; and finally finding the
answer to the ultimate question of “whether or not the importance of satisfying the
competing principle justifies the detriment to, or non-satisfaction of, the first
[principle].”152 He labels the possible degrees of interference that can be found at stage
one as light, moderate and serious. Those found at stage two he dubs as very important,
moderately important and relatively unimportant. While acknowledging that in some
cases it is difficult to apply accurately these labels, Alexy argues that they nevertheless
make possible, in the majority of cases, a formula153 for deciding whether an
infringement is justified.154
Alexy’s analysis presents an accurate description of the conflicts of interests at the
balancing stage of the proportionality analysis. The importance of delimiting a standpoint
from which judges can apply this test is apparent. Before discussing the two principal
defenses of the objectivity of such a standpoint, let us first turn to Justice Breyer’s
proportionality analysis in Heller and see how his conception maps onto the
proportionality analysis discussed above.
2.1.2. Justice Breyer’s Heller Dissent
Heller involved a ban on handguns in the District of Columbia. The District law
criminalized carrying an unregistered firearm, while at the same time prohibiting the
registration of handguns; it provided that no person could carry an unlicensed handgun
152
See Robert Alexy, Constitutional Rights, Balancing and Rationality, Ratio Juris 16 (2) (2003), at 136.
153
For a description of the formula, see Robert Alexy, On Balancing and Subsumption. A Structural
Comparison, Ratio Juris vol. 14 (4), 433-49 (2003), at 443-448.
154
This is not the case in all cases. Alexy acknowledges the existence of situations when judges have
“structural discretion”. See Robert Alexy, supra note ___ (Theory of Constitutional Rights), at 310.
39
while only authorizing the police chief to issue 1 year licenses, and finally it required
residents to keep lawfully owned firearms unloaded and disassembled, or bound by a
trigger lock or similar device. Plaintiff Heller, a police officer whose request to keep a
handgun at home was denied, challenged the ban on Second Amendment grounds.
Writing for the five Justices in the majority, Justice Antonin Scalia held that the Second
Amendment protects an individual’s right to possess a firearm even if such possession is
unconnected from the service in a militia explicitly mentioned by the Amendment. The
Court further held that, while not absolute, the individual right to bear arms, as applied to
self-defense, is violated by both the handgun ban and the trigger-lock requirement. Two
dissents were entered in this case and each was joined by all the Justices in the minority.
The first, per Justice Stevens, argued on historical grounds that the Second Amendment
protects militia-related, not individual self-defense related, interests. In a second
dissenting opinion, Justice Breyer argued that, even assuming that the majority was
correct in placing individual self-defense within the scope of the Second Amendment
right, the District’s regulation was nevertheless permissible. Since all the members of the
court recognized that the constitutional right to hold and bear arms is not unlimited, the
question was whether the District’s interest in regulating the possession of handguns in
high-crime urban areas was justified. Justice Breyer’s opinion offered more than just an
answer to that question; it presented a method – proportionality – for courts to use in
deciding the legal validity of regulations that limit constitutional rights.
The following is a discussion of Justice Breyer’s method in light of the
proportionality analysis presented above. His methodology can be divided into four parts
and resembles the method of proportionality used by foreign constitutional courts. First,
40
the question of the purpose of the measure under review is addressed; second, that of
whether the measure helps to achieve that purpose; third, that of whether its adoption was
necessary, and implicitly whether less restrictive means were available; and, finally, the
question of whether the infringement is proportional must be answered. This section
analyzes each step of the analysis and shows how the influence of American law, at least
as evidenced in Breyer’s application, benefits the model of proportionality. It
demonstrates that his reliance at the last step of the analysis, upon which the whole
ultimately turns, on distinguishing between primary and subsidiary interests, evades the
problem of standpoint, and introduces the argument of the next section, that this
distinction ultimately weakens proportionality.
The first prong of the inquiry – the preliminary part – requires courts to examine
the purpose of the measure under review. By the standards of American constitutional
law, Justice Breyer’s purpose analysis is unusually brief. The aim of any gun regulation is
to prevent crime and further public safety. He simply notes that the court has already
recognized these interests as “compelling” in previous cases155 and does not inquire
further into the specific wording or the level of generality at which these interests are
defined. Of course, classifying the state interests as “compelling” does not automatically
indicate that strict scrutiny applies. Constitutional analysis works the other way around:
the high protection given to a constitutional right might require that the state interest in
155
128 S. Ct. at 2851-52 (Breyer, J., dissenting) (citing United States v. Salerno, 481 U.S. 739 (1987);
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) per curiam; Sherbert v. Verner, 374 U.S. 398, 403 (1963);
Brigham City v. Stuart, 547 U.S. 398, 403-404 (2006); New York v. Quarles, 467 U.S. 649, 655 (1984);
Miranda v. Arizona, 384 U.S. 436 (1966).
41
infringing it be compelling, but the existence of a compelling state interest is no
indication about what level of scrutiny applies to its infringement upon some right.156
Yet, because of the novelty of the Second Amendment challenge, one of Justice
Breyer’s aims is to create sufficient conceptual space for interest balancing within a
proportionality framework. The Second Amendment right does deserve high protection,
but as that right does not possess categorical force, “any attempt in theory to apply strict
scrutiny to gun regulations will in practice turn into an interest-balancing inquiry.”157 On
these grounds, Breyer argued that neither the presumption of constitutionality (as in a
rational-basis test) nor that of unconstitutionality (as in strict scrutiny) of Second
Amendments state infringements is warranted.158
The question is, why not? The reason that it might be either too difficult or too
easy for states to justify their infringements of Second Amendment rights does not count
as an argument for or against imposing any particular standard of scrutiny. To reach that
conclusion, Justice Breyer must rely on the majority’s admission that: “Like most rights,
the right secured by the Second Amendment is not unlimited.”159 Indeed, the majority
indicated that a number of regulations – such as prohibitions on concealed weapons,
forfeiture by criminals of their Second Amendment rights, prohibitions on the possession
156
The state might have a compelling or an important interest, when even a rational interest would be
sufficient.
128 S. Ct. at 2852 (Breyer, J., dissenting). Gerald Günter famously described strict scrutiny as “strict in
theory, fatal in practice”, in Gerald Günter, Forward: In Search of Evolving Doctrine on a Changing
Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972). But see Grutter v. Bollinger,
539 U.S. 306 at 327 (2003) (“Although all governmental uses of race are subject to strict scrutiny, not all
are invalidated by it.”).
157
158
128 S. Ct. at 2852 (Breyer, J., dissenting). Interestingly, intermediary scrutiny is not mentioned in the
opinion.
128 S. Ct. at 2816 (“Like most rights, the right secured by the Second Amendment is not unlimited.
From Blackstone through the 19-th century cases, commentators and courts routinely explained that the
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.”).
159
42
of firearms by mentally ill and laws forbidding the carrying of firearms in schools or
government buildings – would pass constitutional muster.160 Yet under traditional strict
scrutiny, the fate of those laws would remain uncertain. Conversely, virtually all these
regulations would survive traditional rational basis review. The same would be true about
the District’s handgun regulations at issue in Heller, which the majority invalidated.161
What follows next in Justice Breyer’s analysis is the traditional three-step
proportionality analysis. Of the three regulations passed by the District, the most
contentious, and the one that Breyer takes through all the steps of the proportionality
analysis, is the prohibition on the registration of guns within the District. Since
registration is a prerequisite for gun possession, the provision de facto bars the possession
of handguns. The majority of the Court invalidated this provision as a violation of the
constitutionally protected right to use guns at home for the purpose of self-defense
overriding the regulation’s objective of public safety.
The next step in the proportionality analysis requires an investigation of how the
District’s regulation helps to achieve that objective. Breyer’s analysis is more demanding
at this stage than that of foreign court would be. He separates, in a way seldom seen in
the practice of foreign courts, the perspective of the D.C. legislature at the time when the
regulation was adopted and that of the court at the time of the review. With respect to the
160
128 S. Ct. at 2816.
But see 128 S. Ct. a 2818 (n.27) (“Justice Breyer correctly notes that this law, like almost all laws,
would pass rational-basis scrutiny. But rational-basis scrutiny is a mode of analysis we have used when
evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. In those
cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional
guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may
regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy,
the right to counsel, or the right to keep and bear arms. If all that was required to overcome the right to
keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate
constitutional prohibitions on irrational laws, and would have no effect.”). (citations omitted).
161
43
former, he looks at the factual findings of the local council committee that initially
recommended the ban, taking particular note of statistics that correlate the levels of
violence with ownership of handguns.162 Switching then to the court’s perspective, he
analyzes the statistics presented by the petitioners and their amici describing the
intervening 30 years. The underlined data concerns the number of firearm-related deaths,
the impact of firearms on children and adolescents, as well as data showing
disproportionate quantities of gun-related death, injury and crime between urban and
rural areas.163 This analysis leads to the unsurprising conclusion that what is really under
challenge is the District’s predictive judgment that banning handguns will help lower
crime and accident rates.164
Some of Justice Breyer’s analysis involves the issue of alternative means of
regulation, which is typically addressed at stage three of proportionality analysis. As we
saw in the last section, this problem of risk allocation under conditions of empirical
uncertainty has posed serious challenges to Canadian courts. Justice Breyer’s answer,
when faced with what he deems to be equally reasonable studies and counter-studies, is
to defer to the legislature on institutional grounds: “legislators, not judges, have primary
responsibility for drawing policy conclusions from empirical fact. And, given that
constitutional allocation of decision-making responsibility, the empirical evidence
162
128 S. Ct. at 2854-58 (Breyer, J., dissenting).
163
128 S. Ct. at 2858-60 (Breyer, J., dissenting).
164
128 S. Ct. at 2859-60 (Breyer J., dissenting). Arguments about the unintended harmful effects of
banning handguns included the data showing that the crime rates went up after the adoption of the
regulation, that a ban on handguns would not deter criminals and that alternative remedies – including
liberal authorization of law-abiding citizens to carry concealed weapons – would be more appropriate..
44
presented here is sufficient to allow a judge to reach a firm legal conclusion.”165 Much
like his foreign counterparts confronted with this stage in the proportionality analysis, he
requires that the legislature’s empirical judgment be reasonable; whereas, from the
legislative perspective, mere reasonableness might not be sufficient to turn a given policy
into law.166
The third step examines the necessity of the reviewed regulation, specifically
inquiring into the existence of means to accomplish the same end which would be less
intrusive on constitutional rights and presumably of comparable effectiveness. Like any
judge who breaks the institutional shell of a right to look within at the protected interests,
Justice Breyer asks about “the extent to which the District’s law burdens the interests that
the Second Amendment seeks to protect.”167 He identifies three interests protected by the
right to keep and bear arms. The first is the interest in the preservation of a well-regulated
militia. After analyzing the nature and historical origin of that interest, he identifies its
scope as the protection of military training and concludes that the interest in military
training is affected “little or not at all”168 since the regulatory ban includes only handguns
and thus does not extend to rifles or shotguns.169 The law thus “permits residents to
engage in activities that will increase their familiarity with firearms” necessary for
165
128 S. Ct. at 2860-61 (Breyer, J., dissenting) (also emphasizing the local government strand of the
argument that local authorities are in position to know better the realities of their communities and should
be allowed to engage in policy experiments).
128 S. Ct. at 2859 (Breyer J., dissenting) (“These empirically based arguments may have proved strong
enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But
the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of
a legislature that rejects them.”).
166
167
128 S. Ct. at 2861 (Breyer, J., dissenting).
168
128 S. Ct. at 2863 (Breyer, J., dissenting).
Justice Scalia points out that the “American people have considered the handgun to be the quintessential
self-defense weapon.” 128 S. Ct. at 2818, (also discussing what makes the handgun special at id. 2818-19).
169
45
military training.170 Furthermore, the ban applies only within the relatively small territory
of the District, which means that firearm training is only a short subway ride away.
Secondly, the Amendment protects an interest in hunting as a sport. Justice Breyer
invokes the same two reasons mentioned above – the limitation of the ban to handguns
and the existence of opportunities for hunting in adjacent states – to dismiss the claim
that the District’s regulation seriously impacts on this second interest protected by the
constitutional right.171
A third interest is to keep a loaded handgun in the home for self-defense against
intruders.172 Dissimilarly from the other two interests, the District’s regulation - which
prohibits the registration of handguns and criminalizes the carrying of unregistered
handguns – infringes the Second Amendment right that protects it to the point of
nullifying that interest. The question then becomes whether or not there are “other
potential measures that might similarly promote the same goals while imposing lesser
restrictions.”173
Thus phrased, the question assumes that the alternative, less intrusive means must be
comparatively as effective as the regulation under review. Justice Breyer answers this
question in the negative, and justifies his answer on conceptually symmetrical grounds:
less restrictive regulations are bound to be also less effective. He argues that “because the
very attributes that make handguns particularly useful for self-defense are also what make
170
128 S. Ct. at 2862 (Breyer, J., dissenting).
171
128 S. Ct. at 2862-63 (Breyer, J., dissenting).
172
128 S. Ct. at 2863 (Breyer, J., dissenting) (also noting statistics suggesting that handguns are the most
popular weapons for self-defense.).
173
128 S. Ct. at 2864 (Breyer, J., dissenting).
46
them particularly dangerous,”174 it follows that “any measure less restrictive in respect to
the use of handguns for self-defense will, to that same extent, prove less effective in
preventing the use of handguns for illicit purposes.”175 Hence “if a resident has a handgun
in the home that he can use for self-defense, then he has a handgun in the home that he
can use to commit suicide or engage in acts of domestic violence.”176
It is arguable whether this conclusion follows with the force of necessity. The
argument that the current regulation allows a “law enforcement officer immediately to
assume that any handgun he sees is an illegal handgun”177 does not prove its advantage
over purportedly less effective licensing restrictions that could put on the market legally
purchased handguns that could be stolen and end up in the hands of criminals.178 It does
appear that the existence of a constitutional right does no particular work here;
specifically, it does not put a thumb on the scale of reasons against burdening the
interests it protects. Justice Breyer’s empirical reference to the existence of other state
regulations for urban areas such as Chicago and San Francisco also serves to demonstrate
the reasonableness of the DC regulation. The stance Justice Breyer takes at this stage in
the proportionality analysis is not so much one of institutional deference, as it is one of
endorsing on substantive grounds the reasonableness of the District’s regulation.
The last part of the analysis involves the question of whether the District’s
regulation disproportionately burdens “Amendment-protected interests.” Like the
Canadian courts, Justice Breyer begins by summing up the previous stages of the
174
128 S. Ct. at 2864 (Breyer, J., dissenting).
175
128 S. Ct. at 2864 (Breyer, J., dissenting).
176
128 S. Ct. at 2864 (Breyer, J., dissenting).
177
128 S. Ct. at 2864 (Breyer, J., dissenting) (italics in the original).
178
128 S. Ct. at 2864 (Breyer, J., dissenting)
47
analysis. His analysis also covers crucial new territory, specifically by discussing the
place of the interest in self-defense within the overall set of interests protected by the
Second Amendment. Breyer asserts that the self-defense interest in maintaining a loaded
handgun in the home to shoot intruders is not a primary, but a subsidiary interest of the
Second Amendment.179 Using language different from Breyer’s, but which all the same
captures his analysis, we can say that the self-defense interest is protected as part of the
“periphery” rather than the “core” of the right to keep and bear arms.
Breyer’s arguments that individual self-defense is a subsidiary interest are textual
and historical. The text of the Second Amendment mentions militias. As far as history is
concerned, Breyer discusses the urban nature of the limitation, as well as the fact that it
applies to handguns. He points out that the Framers of the constitution were unlikely to
have thought of a right to keep loaded handguns in homes to confront intruders in an
urban setting as central to the right of self-defense, and that they would be even less
likely to think so after the development of modern urban police departments.180 He also
points to the lack of evidence that handguns themselves were central to the Framer’s
conception of the Second Amendment. His third argument looks at the position the
Framers took with regard to similar gun regulations in force in different states at the time
the Constitution was instantiated.
Central to Breyer’s analysis is the distinction between primary and subsidiary
interests. Since, in his interpretation, individual self-defense in maintaining a loaded
From the beginning, Justice Breyer’s analysis was based arguendo on the assumption that the Second
Amendment protected interests in self-defense. That assumption had been rebutted in Justice Stevens’
separate dissent, which Justice Breyer joined. But the assumption said nothing as to whether that interest
was primary or subsidiary.
179
180
128 S. Ct. at 2866 (Breyer, J., dissenting)
48
handgun in the home to shoot intruders receives Second Amendment protection only as a
subsidiary interest, the conclusion follows that the District’s regulation is proportional.
According to this model, burdens on secondary interests that have survived the first
stages of the proportionality test are more likely to be found proportional than if they
burdened primary interests instead. Put differently, infringements of the core are more
difficult to justify. The hierarchy of interests within a right takes central stage and, at
least at first blush, promises a criterion for what constitutes legitimate decision-making:
the constitutional interpreter must intervene to protect the core of the rights and allow for
tradeoffs only with respect to the subsidiary interests that the right protects. This would
be an appealing approach were the hierarchy of interests not an object of interpretative
disagreement in its own right. Case in point: using the same textual and historical
methods of interpretation, the majority in Heller managed to reach the opposite
conclusion, that the interest in self-defense was in fact a primary interest protected by the
Constitution’s Second Amendment. This is just the surface of a deep well of problems
with this defense of balancing. The next section discusses these problems.
2.2. Defending Proportionality
This section discusses two main defenses of the decisionmaker’s standpoint in
constitutional balancing. The first defense takes its cue from the nature of rights and
distinguishes between their core and their periphery. The second defense focuses on the
nature of the constitutional system.
49
2.2.1. The Rights Defense: Preserving the “Essence” of Rights
The previous sections have shown that the need to limit rights is more stringent in
constitutional systems that interpret rights broadly. This “back-loading” of rights
interpretation to the limitations stage, as opposed to the initial definitional stage, is more
common in constitutional systems where the model of rights as substantive reasons is
standard in legal discourse. Left unlimited, the structure of constitutional rights could
bring governmental action to a standstill since any policy enacted into law is likely to
collide with some potentially constitutionally protected interest. The aim of separating
primary and subsidiary interests, the core and the periphery of a right, or of attempts to
find the “essence” of a right is to legitimize different standards of judicial protection and
free the government to effectuate its policies. Infringements on rights will be treated
differently depending on which particular interest they burden. The idea, as Dieter
Grimm put it, is that: “It is rarely the case that a legal measure affects a fundamental right
altogether. Usually, only a certain aspect of a right is affected… The same is true for the
good in whose interest the right is restricted. Rarely is one measure apt to give full
protection to a certain good.”181
The distinction between the core and the periphery of a right, or the search for its
essence, is a staple of proportionality analysis around the world. Some constitutional texts
mention it explicitly. For instance, Article 19 of the German Basic Law, which sets out
the principles for restricting basic rights, states that the “the essence of a basic right
should never be violated.” Similarly, Article 52 (1) of the Charter of Fundamental Rights
181
Dieter Grimm, supra note ____ (Proportionality), at 396.
50
of the European Union states that “any limitation on the exercise of the rights and
freedoms recognized by this Charter must be provided for by law and respect the essence
of those rights and freedoms.” The idea that tradeoffs in the balancing process should
only be allowed at the periphery of rights is also common in legal practice. Justice
Aharon Barak, former president of the Israeli Supreme Court and a foremost defender of
balancing,182 argued that judges “must aim to preserve the “core” of each … libert[y] so
that any damage will only affect the shell.”183 The language of primary and subsidiary
interests employed in Heller implies a similar distinction,184 and is by no means the only
instance in which these concepts are used in American jurisprudence.185
The journey to the core of a right is premised on a model of rights that allows
judges to “break into” rights. The method of moving in and out of institutional form is
therefore not “freestanding” in the sense that the judge is not at liberty to sacrifice the
core of the right.186 For instance, once the interest in self-defense has been identified at
the core of the Second Amendment right, infringements of that interest will be more
difficult – perhaps much more difficult - to justify, since they would impact on the core of
182
See Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116
HARV. L. REV. 19 (2003); AHARON BARAK, THE JUDGE IN A DEMOCRACY (2006).
183
See Shavit v. The Chevra Kadisha of Rishon Le Zion, C.A. 6024/97 (1999) (Supreme Court of Israel), at
§ 9. See also Horev v. Minister of Transportation, H.C. 5016/96, PD 51(4) 1 (1997), at § 59 (“in the
framework of a specific aspect of a right (such as political speech), a limitation upon the core of the right is
not the same as a limitation upon its outer rim.”), cited in Aharon Barak, see supra note ___ (Proportional
Effect), at 372.
See 128 S. Ct. at 2866 (Breyer, J., dissenting) (“[T]he self-defense interest in maintaining loaded
handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that
the second Amendment seeks to serve.” (italics in original).
184
Shapiro v. Thompson, 394 U.S. 618 at 675 (1969) (“However, the impact of residence conditions upon
that right is indirect and apparently quite insubstantial”) quoted in GEOFFREY R. STONE, ROBERT H.
SEIDMAN, CASS R. SUNSTEIN, MARK V. TUSHNET & PAMELA S. KARLAN, CONSTITUTIONAL LAW, 819 (5th
ed.2005).
185
186
The heightened protection can lead to categorical protection.
51
the right. In this way a hierarchy of protected interests is created. 187 If the protection of
political speech forms the core of free speech, then the interest in protecting political
speech will rank higher than, say, the interest in protecting commercial speech.188 As a
consequence, courts will be accordingly less deferential to the elected branches in
reviewing legislation that limits the core of the right.189
A number of factors complicate this neat picture. First, not all rights have cores.
Consider the case of disability rights.190 After much debate over how to define disability,
one plausible conclusion is that there as many ways of defining “disability” as there are
187
With the hierarchy in place, new cases are allocated, though analogical reasoning, closer or farther from
the “primary” interests. That strategy marks a surprising return to categorical reasoning. A Dean Sullivan
points out, in American constitutional law, “the suspension of categorical reasoning in favor of such an
approach typically comes about from a crisis of analogical reasoning”, in Kathleen Sullivan, supra note ___
(Post-liberal Judging), at 297. For more on reasoning by analogy in law, see Cass Sunstein, On Analogical
Reasoning, 106 HARV. L. REV. 741 (1993)
188
Gardbaum points out the tendency towards a hierarchy of rights, in the context of the ECHR. See
Stephen Gardbaum, see supra note ___ (Limiting Rights), at 836 (noting that in the system of the ECHR
rights such as political expression, the right to private life, freedom of association to form political parties –
trump other rights). The Canadian experience is also relevant. In Canada, as elsewhere, regulations that
impact on political speech constitute stronger infringements of the right to freedom of expression that
regulations of other forms of speech. But this distinction was of little use in the case of disputes over the
boundaries of the political speech. As Choudhry’s study of the cases before the court shows (see supra note
___, at), sexual expression, hate speech– all of which had could all be seen as having political implications
– had a reasonable claim of being part of the core of the right. Once the question of defining the “political”
in political speech was on the table, the purported discretion-limiting effect of the core/periphery distinction
was weakened. To be sure, there are always a number of relatively straightforward cases in which the
distinction has powers to explain and justify the process of judicial decision-making. But the distinction
will not do the intended work in many difficult cases that involve balancing, in which the interests on the
balance are of comparable weight. These latter cases are the ones against which the charge of arbitrariness
is marshaled most powerfully.
This is the approach the Canadian Supreme Court adopted in deciding how closely to look at the “least
restrictive means” prong of the proportionality analysis. See Sujit Choudhri, supra note ___ (So What Is the
Real Legacy of Oakes?), at 511.
189
Samuel Bagenstos, Subordination, Stigma, and "Disability”, 86 VA. L. REV. 397, 406 (2000) (arguing
that disability rights do not have a “core”). For examples of constitutions that protect against discrimination
of grounds of disability, where such interpretative questions are likely to arise at the constitutional level,
see e.g., The Constitution of Finland, Art 6 (2) (“No one shall, without an acceptable reason, be treated
differently from other persons on the ground of … disability (…).”); The Constitution of Poland, Art 68 (3)
(“Public authorities shall ensure special health care to children, pregnant women, handicapped people and
persons of advanced age.”); The Constitution of South Africa, Art 9 (3) (“The state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds, including … disability …”). For
more comprehensive constitutional provisions, see The Spanish Constitution, Art 49; The Constitution of
Malta, Art. 17; The Constitution of Portugal, Art 71.
190
52
disabilities.191 Second, identifying the core of a right might be almost impossible. Take
the protection of religious beliefs. If judges may break the institutional shell of a right,
then they may look for the “core” of the free exercise right in the beating heart of the
belief and practice of a religious experience, but this is a notoriously sticky enterprise.192
Noting the judicial inadequacy on that score, the Supreme Court adopted, in Employment
Division v. Smith, a categorical, rule-based approach to the law of free exercise: “It is no
more appropriate for judges to determine the ‘centrality’ of religious beliefs before
applying a ‘compelling interest’ test in the free exercise field, than it would be for them
to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in
the free speech field.”193 Emphasizing the core compounds, rather than solves, the
problem of the standpoint of the decisionmaker.
But the greatest challenge is not the inexistence of a core or the impossibility of judicial
access to it. It is instead the common challenge of interpretation. Recall that in Heller the
court was split over interpretative disagreement about the primacy of the individual
interest in self-defense within the hierarchy of Second Amendment-protected interests.
The majority held that this interest was central to the right, whereas the dissenting
191
Charles F. Sabel and William H. Simon, Destabilization Rights: How Public Litigation Succeeds, 117
HARV. L. REV. 1015 (2004) (arguing that remedies should be understood as part of the substantive right).
192
See United States v. Seeger, 380 U.S. 163 at 166 (1965) (using reasoning by analogy applying the test of
“whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to
that filled by the orthodox belief in God”). The problem with judicial evaluation of the substance of a
religious belief is captured well by Justice Jackson in United States v. Ballard, 322 U.S. 78 at 92 (Jackson,
J., dissenting) (1944) (“I do not see how we can separate an issue of what is believed from considerations
as to what is believable.”).
Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660 (1988) (find exact cite). See
also Shavit v. The Chevra Kadisha of Rishon Le Zion, C.A. 6024/97 (1999) (Supreme Court of Israel)
(Judge Englard) (deciding whether Jewish burial societies, which customarily administered cemeteries
throughout the country, had the right to prevent family members from inscribing on the deceased’s
tombstone her birth and death dates according to the standard Gregorian calendar (as well as the Hebrew
calendar).
193
53
justices joined Justice Stevens in concluding that it was merely a subsidiary interest.
Importantly, both the majority and dissent used the same methods of constitutional
interpretations, which were mainly comprised of textual and historical tactics. In that
sense, Heller was an easy case since there was agreement as to the method of
interpretation for determining the status of the interest. But many cases, especially the
ones where the standpoint of the decisionmaker is contested, are much more difficult. For
instance, an integral part of the constitutional controversy in Substantive Due Process
cases concerns what methods of interpretations – tradition, history, text, constitutional
structure, ethical arguments, precedent -194 courts can legitimately apply.195
The multitude of standpoints from which judges can approach a right threatens the
objectivity of judicial interpretation. What standpoint should they adopt in identifying the
essence of a right? The problem is not just one of strategy. There are presumably as many
“essences” or “cores” as there are standpoints from which to approach the right. 196 The
core/periphery distinction will only help to shield proportionality from its critics if it
defends the standpoint of the decision-maker. We have seen that the idea is that it is not
the individual judge who chooses, but rather it is the constitutional imperative that rights
194
See generally PHILIP BOBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 3-122 (1984).
195
These debates have been most heated in the area of substantive due process. See Lawrence v. Texas, 539
U.S. 558 at 572 (2003) (“History and tradition are the starting point but not in all cases the ending point of
the substantive due process inquiry.”).For different approaches to these methodological problems, see John
O. McGinnis and Nelson Lund, Lawrence v. Texas and Judicial Hubris in 102 MICH. L. REV. 1555 (2004);
Laurence H. Tribe, Lawrence v. Texas: The 'Fundamental Right' That Dares Not Speak Its Name, 117
HARV. L. REV. 1893 (2004).
128 S. Ct. at 2821 (“Constitutional rights are enshrined with the scope they were understood to have
when the people adopted them, whether or not future legislatures or (yes) future judges think that scope too
broad.”).
196
54
be protected that compels the choice. That imperative must also include a choice of a
method for identifying that core, as well as in turn a justification for that choice.197
Constitutional experience shows that this is a tall order, indeed, so much so that
the distinction might compound the difficulties rather than solve them. Consider the
South African experience. The Constitutional Court of South Africa grappled with this
issue in its first limitation of rights case under the 1994 Interim Constitution. In it the
court reviewed the validity of the death penalty under the new constitutional regime, and
specifically under provisions that guaranteed the right to life and the right not be
subjected to cruel, inhuman or degrading treatment or punishment.198 The limitations
clause, inspired by the German Basic Law, provides that limitations on rights “may not
negate the essential content of the right in question.”199 After noting the difficulties
encountered by the German Federal Constitutional Court in interpreting a similarly
worded provision, the Court stated that: “The difficulty of interpretation arises from the
uncertainty as to what the ‘essential content’ of a right is, and how it is to be determined.
Should this be determined subjectively from the point of view of the individual affected
by the invasion of the right, or objectively, from the point of view of the nature of the
right and its place in the constitutional order, or possibly in some other way?”200 The
constitutional outcome will depend on which standpoint the court adopts. From the point
of view of the convicted felon, it is easy to see why the death penalty negates the
essential content of his right. Alternatively, from an “objective” point of view, the
197
Conversely, a judicial decision that emphasizes the need to protect the core of a right is insufficient.
Justification will also be required for how that core is identified.
198
The case was S. v. Makwanyane, (1995) (3) SALR 391 (CC).
199
South Africa Interim Constitution, art 33 (1)(b).
200
S. v. Makwanyane, (1995) (3) SALR 391 (CC), para. 132
55
discussion is more complex and at the minimum it involves, as the Court indicated, a
broader exploration of the role of retribution in punishment, of the external social effects
of the death penalty and so on. Most likely the death penalty does not “necessarily negate
the essential content of the rights” infringed by it.201 Much will also depend on how
exactly the “objective” viewpoint is constructed. To be sure, the very choice of this
viewpoint over the one of the rightholder is not self-evident. Having a right gives the
right-holder, at least sometimes and within limits, a say in drawing the exact contours of
the core of their rights in specific situations. It delegates authority from the judicial center
out towards the rightholder. But one can safely assume that right-holders do not generally
think of their rights in terms of core and penumbra. They take, quite naturally, an
expansive view of their rights, which makes the core so overblown as to defeat the
purpose of identifying it at all. For the right-holder who engages in hateful racist speech,
for example, that form of speech may well be, from his perspective, a political
expression.
This is not to say that these questions do not have answers, but rather to question
whether the core/periphery distinction, or an emphasis on the “essence” of the right, is
part of that answer. It seems that the distinction raises more questions than it solves. The
South African court reached the same conclusion and avoided the complex “negating the
essence” analysis by following in the footsteps of its Canadian and German counterparts
and integrating that analysis into the broader proportionality test.202 It is equally
201
S. v. Makwanyane, (1995) (3) SALR 391 (CC), para. 133.
202
More precisely, the “necessity” prong. See S. v. Makwanyane, (1995) (3) SALR 391 (CC), para. 134
56
noteworthy in this context that in the 1996 final version of the South African constitution,
the provision requiring courts to preserve the essence of rights was abandoned.203
2.2.2. The System Defense: The Rationality of the Legal System.
The necessity defense adopts the model of rights as substantive reasons, but instead of
grounding the objectivity of proportionality in the nature of rights, it locates it in the
structure of the constitutional system. I will argue that this is a promising that direction of
inquiry, although ultimately insufficient.
The previous sections have emphasized the importance of an objective
standpoint at all the stages of proportionality analysis, but most of all during the final
step, when the competing interests are balanced. Recall Robert Alexy’s law of
balancing.204 According to that law, courts must assess the interference on the right (light,
moderate, serious), then calculate the gain to the collective good (very important,
moderately important and relatively unimportant) then balance the two according to
“whether or not the importance of satisfying the competing principle justifies the
detriment to, or non-satisfaction of, the first [principle].”205 This method depends on a
203
See infra ___.
204
This issue is explored further in Section XX.
205
Robert Alexy, supra note ___ (Constitutional Rights, Balancing and Rationality), at 136.
57
common metric:206 balancing is about comparisons, and comparisons require a mutual
point of reference.207
An objective common metric can be located in the structure of a constitutional
system in a number of ways. It can be described as necessary for the existence of
secondary rules that solve conflicts of norms within any constitutional structure.208 It
would be impossible for courts to adjudicate the validity of myriad governmental
limitations on rights without such a common metric. As David Beatty puts it: “A
constitution without some principle to resolve cases of conflicting rights would be
incoherent: it just wouldn’t make any sense.”209 Beatty believes that proportionality is not
just a method for solving constitutional conflict, but a good method: “Testing the
legitimacy of laws through the prism of proportionality creates a framework of analysis
around which a very powerful theory of judicial review can be built . . . [i]mpartially
applied, proportionality permits disputes about the limits of legitimate lawmaking to be
settled on the basis of reason and rational argument.”210 A final approach to the common
metric sees it as an integral part of the “general normative structure of the legal
On the idea of a “common metric”, see also David Beatty, supra note ____ (Ultimate Rule of Law), at
159 (“Despite the carnage that the theorists have made of each other’s ideas, judges all over the world have
converged on a framework of analysis that allows them to evaluate the work of the political branches of
government from a common perspective and without regard to their own political and moral
philosophies.”).
206
Robert Alexy has developed a complex mathematical “Weight Formula” for how judges should balance
interests. See Robert Alexy, supra note ___ (On Balancing and Subsumption), at 443-448.
207
208
See H.L.A. Hart, THE CONCEPT OF LAW 79-99 (2nd ed., 1994) (discussing law as a union of primary and
secondary rules).
209
David Beatty, supra note ___ (Ultimate Rule of Law), at 163. Similarly, Alexy argues that a collision of
constitutional rights can only be resolved by balancing. See Robert Alexy, supra note ___ (Constitutional
Rights, Balancing and Rationality), at 133 (“A collision of principles can only be resolved by balancing.”)
This problem is compounded if the proportionality is the only method of solving constitutional conflicts of
interests, especially when no Pareto-optimal solution is available and thus costs are inevitable. See Alexy,
ibid. (“a collision of principles can only be resolved by balancing”).
210
David Beatty, supra note ___ (Ultimate Rule of Law), at 169.
58
system.”211 For instance, scholars have argued that an “integrative standpoint” is
informed by a synthesis of constitutional values.212
The most complex defense of the common metric, and of the objectivity of the judicial
standpoint of proportionality, is Robert Alexy’s. He acknowledges the need for a
common metric, but also raises the stakes. Such a metric is necessary not only for
proportionality, but for legal discourse in general. Legal rationality depends on its
existence, and without it the entrenched judicial practice of reason-giving would be
unexplainable: “[T]he assumptions underlying judgments about intensity of interference
and degree of importance are not arbitrary. . . [r]easons are given for them, and they are
understandable.”213
The proposed common metric is “the point of the view of the constitution.”214
That viewpoint is implied -presupposed215- in claims to legal validity and within the legal
system in which they are made:
Aharon Barak, supra note ___ (Proportional Effect), at ?. President Barak also argues that: “The
criterion we must adopt is one of values. We must balance between conflicting values and interests, against
the background of the values of the Israeli legal system” (ibid, at 6).
211
212
See Shavit v. The Chevra Kadisha of Rishon Le Zion, C.A. 6024/97 (1999) (Supreme Court of Israel)
(President Aharon Barak) (“Balancing is neither secular nor religious. It weighs the conflict between
values and principles from the appropriate perspective of the state’s general values as democratic and
Jewish state. This is an integrative viewpoint, based on a synthesis between Jewish and democratic values.
The Court is neither secular nor religious. The Court considers the feelings of everyone; the Court takes
into account the liberties of everyone; the Court expresses the values of everyone – Jewish values and
democratic values. To the best of its ability, it balances conflicting feelings, liberties and values.”).
213
Robert Alexy, supra note ___ (On Balancing and Subsumption), at 439. See also Robert Alexy, supra
note ___ (Constitutional Rights, Balancing and Rationality), at 139 (“The Disproportionality rule creates a
relation between judgments about degrees of intensity and the judgment about proportionality. Judgments
about degrees of intensity are the reasons for the judgments about proportionality. Judgments about
proportionality raise, as do all judgments, a claim to correctness, and this claim is backed by judgments
about degrees of intensity as reasons.”).
214
Robert Alexy, supra note ___ (On Balancing and Subsumption), at 442.
215
See Hans Kelsen, The Function of a Constitution, in RICHARD TUR AND WILLIAM TWINING (EDS.),
ESSAYS ON KELSEN (1986).
59
“If rational discourse about what is correct on the basis of the Constitution is
possible, then a common point of view is possible. It becomes real as soon as
rational discourse begins which is oriented to the regulative idea of what is
correct on the basis of the constitution. Whoever wants to undermine the
possibility of evaluations by appeal to the impossibility of a common point of
view must then be prepared to claim that rational discourse about evaluations in
the framework of constitutional interpretation is impossible.”216
The existence of proportionality is thus evidence of rationality in law. 217 Put
differently, in Alexy’s view, the mere existence of the argumentative framework should
suffice to silence its critics. If the proportionality framework were removed, the interests
that enter the decisional calculus would indeed become incommensurable.218 In Alexy’s
view, critics of proportionality, including figures as diverse as Ronald Dworkin, Justice
Antonin Scalia or Jürgen Habermas,219 who argue that the proportionality test leads to
irrational results, because applying this method is “more like judging whether a particular
line is longer than a particular rock is heavy,”220 misunderstand the nature of its claim to
216
Robert Alexy, supra note ___ (On Balancing and Subsumption), at 442. See also Robert Alexy, supra
note ___ (Balancing, Constitutional Review and Representation), 547 (““Constitutional review is
necessarily connected to a claim to correctness. If balancing or weighting are incompatible with
correctness, objectivity and justification, it would have no place in constitutional law”).
Robert Alexy, supra note ___ (On Balancing and Subsumption), at 439 (“the assumptions underlying
judgments about intensity of interference and degree of importance are not arbitrary. Reasons are given for
them, and they are understandable”).
217
Robert Alexy, supra note ___ (On Balancing and Subsumption), at 442 (“Incommensurability, indeed,
comes into being immediately, once the common point of view is given up.”).
218
See also Robert Alexy, supra note ___ (Constitutional Rights, Balancing and Rationality), at 577 (“This
(the Weight Formula) is a rational structure for establishing the correctness of a legal judgment in a
discourse. The basic elements of this structure are judgments and propositions. This means that the nature
of balancing is characterized by something that could be characterized as ‘propositionality’. In this way,
Habermas’ objection that balancing necessarily takes one out of the area of justification, correctness, and
objectivity is rejected.).
219
220
Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988) (Scalia, J., dissenting)
60
legal correctness.221 Incommensurability would be sure to follow if their critiques of
proportionality were successful.
Sadly, Alexy’s answer is not altogether convincing. Its main difficulties are
substantive, not formal.222 “The point of view of the constitution” is a common metric
invoked both for correct and for incorrect decisions. It is true that Alexy’s concern is the
possibility of legal correctness, and that, in his view, suffices since all claims in law can
be assumed to be claims to correctness,223 but the legitimate concern of critics is that the
incorrectness of such of these claims as are the outcomes of proportionality analysis, is
precisely of the type that constitutional rights were meant to “block” from legal
discourse. Consider the equal protection challenge to the statutory provision allowing
United States citizenship to pass automatically from mothers who are United States
citizens to their children born out of wedlock abroad, but sets conditions for the
transmission of citizenship if only the father of such a child is a United States citizen.224
It is a legitimate worry that balancing the interests in gender equality protected by the
Fourteenth Amendment against the government’s interest in containing the transmission
221
On the issue of incommensurability in balancing, see generally T. Alexander Aleinikoff, Constitutional
Law in the Age of Balancing, 96 YALE L. J. 943 (1987). See also Cass R. Sunstein, Incommensurability and
Valuation in Law, 92 MICH. L. REV. 779, 795-812 (1994); Frederick Schauer, Instrumental
Commensurability, 146 U. PA. L. REV. 1215 (1998); with a reply by Jeremy Waldron, in Fake
Incommensurability: A Response to Schauer, 45 HASTINGS L. J. 813-824 (1994).
The problem with the answer is not its formal nature. The virtues of “form” in law are nicely presented
as: “Form is the sworn enemy of caprice, the twin sister of liberty… Fixed forms are the school of
discipline and order, and thereby of liberty itself. They are the bulward against external attacks, since they
will only break, not bend, and where a people has truly understood the service of freedom, it has also
instinctively discovered the value of form and has felt intuitively that in its forms it did not possess and
hold to something purely external, but to the palladium of its liberty.” (Jhering, quoted in Roscoe Pound,
The End of Law as Developed in Legal Rules and Doctrines, 27 HARV. L. REV. 195, 208-209 (1913). For a
recent study, see ROBERT S. SUMMERS, FORM AND FUNCTION IN A LEGAL SYSTEM (2005).
222
223
Investigating that claim goes beyond the aim of this article. Any such investigation would ask how the
proposed framework conceptualizes strategic claims.
224
Nguyen v. I.N.S., 533 U.S. 53 (2001) (holding that the equal protection guarantee extended by the Fifth
Amendment did not reach to invalidate a statute making a claim of citizenship more difficult for a child
born abroad, out of wedlock, when only their father was a United States’ citizen).
61
of United States citizenship in these circumstances will allow judges to rehabilitate,
whether consciously or not, the kind of “biasing factors” (gender prejudices, stereotypes)
that the right was supposed to block off. In fact, scholars have argued that just such
“impermissible considerations” had influenced the outcome of judicial balancing in
Nguyen.225 While Alexy might counter that this outcome is “incorrect,” there is nothing
in his conception to prevent the unfolding of a balancing leading inexorably or otherwise
to this “incorrect” result, which undermines the objectivity of the starting point.226 But, as
I will argue in the next part, this is not a species of “objective mistake,” because “biasing
factors” have altered the path of reasoning. To reason along such lines, however, we need
the concept of positional objectivity that will be introduced in the next section.227
Finally, Alexy’s answer about “the point of view of the constitution” will be of
little persuasive value in constitutional systems such as that of the United States, where
the practice of proportionality in constitutional analysis has not yet taken root. To be sure,
proportionality has its share of German critics, despite its prevalence there.228 But Alexy
can still build on two centuries of theorizing about proportionality as well as a few
225
See Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change,
and Fact-Based Adjudication, 106 Colum. L. Rev. 8, 1955 at 1975-76 (2006) (arguing
that the judicial reliance on “facts” in Nguyen represents the inappropriate impact of
biasing factors in perhaps its most insidious form); See also Laura Weinrib, Protecting
Sex: Sexual Disincentives and Sex-Based Discrimination in Nguyen v. I.N.S., 12 Colum.
J. Gender & L. 222 at 230 (2003) (pointing to Nguyen as an example of judicial
stereotyping in the context of parenting).
226
See Robert Alexy, supra note ___ (Theory of constitutional rights), at 47-48.
227
See infra ___.
228
See generally Jürgen Habermas and Bernard Schlink, infra note ___.
62
decades of modern constitutional practice in which this has become the method of choice
in German constitutional law. 229
And yet, this, more than the nature of rights, is a promising direction of inquiry.
Its main shortcoming is its incompleteness. In order successfully to answer critics like
Habermas, it needs a more articulate conception of the correct relationship between the
standpoint of the judge and the standpoint of the parties. As the next section will show,
the case for proportionality requires a refinement of positional objectivity. But the
existence of a space in which such an answer would fit is already indicated in this
“system” defense of objectivity. David Beatty’s equivocations are instructive on this
score. On the one hand, Beatty writes, “courts judge the relevant proportionalities in a
case from the perspectives of those who are most affected by whatever law or
government
action
is
under
review.”230
But
soon
thereafter,
he
adds:
“Sometimes…because parties can become too caught up in a case and so liable to
exaggerate their claims, it is necessary for a court to make its own evaluation of how
significant the relevant law is for both its defenders and detractors.”231 It is precisely this
potentially fruitful equivocation about how judges gain independence from the parties
that will give us an answer as to how the judge is positioned when engaging in
proportionality analysis.
229
See generally Alec Stone Sweet, supra note ___ (Balancing, Proportionality and Global
Constitutionalism); see also David Currie, supra note ___ (The Constitutional Law of Germany).
230
David Beatty, supra note ___ (Ultimate Rule of Law), at 166.
231
David Beatty, supra note ___ (Ultimate Rule of Law), at 168.
63
3. POSITIONAL OBJECTIVITY AND THE JUDICIAL STANDPOINT
This part introduces an institutional defense of the judicial standpoint in
proportionality analysis. At the core of this defense is the concept of positional
objectivity. Section one presents this concept as it was developed in the work of Amartya
Sen. Section two applies positional objectivity to proportionality analysis for two
purposes. Initially it is used to explain a widely acknowledged benefit of proportionality,
that of treating the parties “with equal respect and concern.” Then it is taken as a starting
point in articulating a structural conception of correctness to be applied to the outcomes
of proportionality analysis. Finally, this part introduces three different specifications of
the positional objectivity of courts in proportionality analysis, in relation to four different
audiences:
lower courts (which require administrability), the litigants (who require
transparency), political institutions (which demand a high quality of institutional design),
and the judges themselves (psychological-cognitive constraints).
3.1. The Concept of Positional Objectivity
In a series of lectures and articles in the 1990’s, Amartya Sen argued for a
conception of objectivity that embraces parametric dependence.232 He claimed that
observations as well as beliefs and actions are inescapably position-dependent; that is, are
influenced (not to say determined) by the position of the belief-holder and the action-
232
Amartya Sen, Positional Objectivity, Philosophy and Public Affairs, Vol. 22 (2) 126-145 (1993). The
article was reprinted as a chapter in AMARTYA SEN, RATIONALITY AND FREEDOM (2003). All references
here are to the initial article. The text was originally delivered as the Storrs Lectures on “Objectivity” at
Yale Law School (September 1990).
64
taker.233 While objectivity does not require positional invariance, Sen argues that it does
rely on interpersonal invariance.234 Observations and beliefs are objective if any subject
could reproduce them when placed in a position similar to that of the initial observer. If I
make a statement that “soccer is the most enjoyable sport,” objectivity does not require
that everyone be convinced this is correct, but rather that anyone would be so convinced
if placed in a position similar to mine (same interests, life experiences etc.) 235
Since positional objectivity is different from truth,236 Sen introduces the notion of
“trans-positional assessment” to explain how scientific (or “hard”) knowledge is possible.
Such knowledge synthesizes observational claims made from different standpoints.
Because we are incapable of the unmediated perception of the world,237 there is always
the possibility that a “higher” vantage point exists from which trans-positional claims
may themselves be subject to synthesis.238 The ceiling above “hard” knowledge is porous
That is, they cannot be described as “having their source in the mind” or “pertaining or peculiar to an
individual subject or his mental operations”. This is the definition of subjectivity that Sen operates with
(Sen, at 128-129). The definition is taken from the Oxford English Dictionary.
233
234
There is an extensive literature on objectivity in law. See generally BRIAN LEITER (ED.), OBJECTIVITY IN
LAW AND MORALS (2001); KENT GREENAWALT, LAW AND OBJECTIVITY (1992); Brian Leiter, Objectivity,
Morality and Adjudication as well as Law and Objectivity in BRIAN LEITER, NATURALIZING
JURISPRUDENCE (2007); N. E. Stavropoulos, Objectivity in M.P. GOLDING AND W. A. EDMUNDSON (EDS),
THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY (2005); ANDREI MARMOR,
POSITIVE LAW AND OBJECTIVE VALUES (2001).
235
Sen gives the example of any person on earth comparing the moon and the sun will reach the conclusion
that they are similar in size; any person undergoing the same exercise from a different standpoint - say,
from the moon - would conclude that they are not. See Sen at 128-129.
236
Positional objectivity is different from truth. This is despite the fact that all observations or beliefs
implicitly claim to be true, and that truthfulness is probably necessary for positional objectivity. Sen does
not explicitly make any of these two claims, but they follow from his argument. For the distinction between
truth and truthfulness, see BERNARD WILLIAMS, TRUTH AND TRUTHFULNESS (2002).
237
Our observations, which are themselves part of the external world, are mediated by conceptual schemes,
that is, by “general positional characteristics related to acts of observation and reflection”. See Sen at 131.
238
A prerequisite for trans-positional assessment is the ability to transcend, to step outside of the conceptual
scheme. The possibility of such a standpoint helps better understand the concept of open texture in law (see
H.L.A. Hart, supra note ___ (Concept of Law), at 128-136) and in natural languages (see Friedrich
Weismann, Verifiability, Proceedings of the Aristotelian Society Supplementary Volume 19 (1945), 119 –
65
because science searches for the truth about the objective world.239 Legal inquiry, on the
other hand, is concerned with validity, not experimentally verifiable reality.240 The notion
of trans-positional assessment helps to understand the work of courts, which must review
and, in a certain sense, synthesize the claims of the parties. 241 There is in law an
impenetrable ceiling, at least formally,242 so that, conventionally speaking, no (quasi)
omnipresent trans-positional assessments are allowed.
243
The Supreme Court delivers
final statements of legal validity.244
Thus understood, the concept of trans-positional assessment has a number of uses
in the law. For instance, the laws of a country can be set up to facilitate stepping outside
of institutional roles in order to engage in a trans-positional assessment of social
practices.245 This is the role of free speech in a democracy. This trans-positional
150). For a study of how Hart’s theory and its influences, see Brian Bix, H. L. A. Hart and the "Open
Texture" of Language, LAW AND PHILOSOPHY 10 (1), pp. 51-72 (1991).
239
This is what makes possible the shift of paradigms in science. See THOMAS KUHN, THE STRUCTURE OF
SCIENTIFIC REVOLUTIONS (1962).
240
This comment is not meant to alienate readers for whom validity-centered legal theory is antiquated.
Many concerns about the law are on a different plane, and I believe that the concept of trans-positional
assessment can help there too. I mention validity in the text just because it is a reasonable assumption
considering the larger context of my claim about proportionality and judgments of constitutional validity.
241
This is further elaborated in section XX.
242
Scholars and citizens also react to these statements. See Robert Post, Foreword: Fashioning the Legal
Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 6-7 (2003) (defining constitutional culture as
the beliefs and values of non-judicial actors, and discussing the dialectical relationship between it and
constitutional law). For an earlier approach along similar lines with particular application to legal rights,
see Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L. J. 1860, 1861-1862 (1987)
(“[E]fforts to create and give meaning to norms, through a language of rights, often and importantly occur
outside formal legal institutions such as courts. “Legal interpretation”, in this sense, is an activity engaged
in by nonlawyers as well as by lawyers and judges”).
243
Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation,110 HARV. L.
REV. 1359 (1997).
Justice Jackson: “We are not final because we are infallible, but we are infallible only because we are
final”, Brown v. Allen 344 US 443, 540 (1953) (Jackson J., concurring).
244
Sen at 139 (“there is no necessity to choose the special vantage point of the majority (even of an
overwhelming majority) in that society merely because a person happens to live in such a society… The
need to consider different positional parameters consistent with being in society S is not eliminated by thee
existence of an establishment view or a majority opinion.”).
245
66
assessment requires an external and critical stance towards objective positions which
dissents and free opinion offer through unfettered public debate.
If objectivity depends on personal invariance, that is, on any individual becoming
convinced of the accuracy of an observation or the cogency of a belief if placed in a
position similar to that of the initial subject, then much turns on how that “similar
position” is defined. The more elaborate the specification becomes, the more likely it is
that every opinion “could be made positionally objective by some appropriately thorough
specification of positional parameters.”246 Even my statement that “smoking does not
increase the risk of cause cancer” can be made objective by specifying all the elements
that characterize the position from which I make this “observation.” Thus, any
manifestation of subjective arbitrariness could be defined as positionally objective if its
positional parameters are sufficiently specified. But if objectivity can be so finely tuned,
isn’t there a risk that positional objectivity is no “objectivity” at all?
Sen addresses this concern in two ways.247 The first distinguishes between
objectivity and legitimacy. The use of certain particular parametric specifications - such
as “special mental tendencies, particular types of inexperience or constrained features of
reasoning”248 - undermines the justificatory force of a positionally objective statement or
belief. For example, a belief in the inferiority of women might be specified to be
246
Sen at 137.
247
This concern is less stringent for Sen given the nature of his project. His immediate use for positional
objectivity is to understand persistent misunderstandings in social analysis and public affairs. Specifically,
he deploys the concept to untangle puzzles such as why there are the high rates of self-perceived morbidity
in communities with long life-expectancy at birth, or complex causal connections in systematic social
prejudices, for instance those underlying gender inequalities. For further analysis of this problem using
Sen’s conceptual framework, see Elisabeth Anderson, Sen, Ethics and Democracy, Feminist Economics 9
(2-3) (2003), pp. 239-261. He also points out, in a schematic fashion, its potential uses in debates in
decision theory, moral agency and cultural relativism.
248
Sen at 137.
67
objective, but the “biasing factors” used in that process of specification – bigotry,
ignorance, lack of experience and so on- undercut its justificatory force and thus its
potential for legitimacy.249
Sen’s second answer to the concern of over-specification draws on degrees of
objectivity.250 Specifically, it identifies both a broad interpretation of positional
objectivity, in which the inclusion of all parameters is permissible, and a narrow
interpretation in which some parameters (for instance, inexperience and ignorance) can
be barred from the construction of position-dependence. In the former conception,
positional objectivity becomes coextensive with subjectivity.251 The danger here is that
expanding the concept to include virtually every observation, belief or attitude, no matter
how senseless, lowers the bar of what is required of objectivity and dilutes its social
meaning. By giving such subjective arbitrariness the appearance of objectivity, it lends it
unwarranted weight.
In the latter, narrow, conception, permissible parameterization does not include
“biasing factors.” 252 Whenever the specification of a position includes such factors, the
label of positional objectivity will not apply to that belief or observation. If, for instance,
the parametric specification of a judicial decision must include the judge’s reaction to
“what he had for breakfast”253 that day, then that decision cannot be objective. This
249
Sen at 138 (referring to cultural relativism).
250
See Brian Leiter, Law and Objectivity in BRIAN LEITER, NATURALIZING JURISPRUDENCE 259 (2007)
(distinguishing between minimal, modest and strong objectivism).
251
Objectivity and subjectivity remain conceptually separate. See Sen at137.
252
See ROBERT NOZICK, INVARIANCES: THE STRUCTURE OF THE OBJECTIVE WORLD 94 (1991).
Jerome Frank is credited with this famous – and infamous – assertion. See generally JEROME FRANK,
LAW AND THE MODERN MIND (1930).
253
68
narrow conception will help us use positional objectivity in defending the judicial
standpoint in proportionality analysis.
3.2. The Positional Objectivity of Courts
This section applies that positional objectivity to the case for proportionality. In
particular, it helps to conceptualize the judicial standpoint in two ways. First, positional
objectivity accounts for an oft-invoked but under-studied feature of proportionality,
namely its respectful and impartial nature. Second, it articulates a criterion for adding a
different layer to what constitutes the “correct” outcomes of proportionality analysis. In
the past, the criteria for correctness have been procedural (has the judge correctly applied
the four steps of proportionality analysis?) or substantive (is the outcome supported by
this or that theory of justice?). By emphasizing the mutability of institutional roles,
positional objectivity reveals the structural dimensions of
the correct outcomes of
proportionality analysis.
3.2.1. Respect and Impartiality
Advocates of proportionality often invoke among its virtues the method’s ability
to “solve conflict between fundamentally antagonistic moral values in a way that shows
equal concern and respect for everyone involved”.254 It might be tempting to seek an
explanation for this capacity in the fact that proportionality is a method of particularized
decision-making. But rule-based, categorical decision-making also has the potential to be
254
David Beatty, supra note ___ (Ultimate Rule of Law), at 169 (my italics).
69
respectful and impartial.255 Two questions thus arise: why is “equal concern and respect”
important, and what makes proportionality more “respectful” than analogical or
categorical reasoning?
To start, let us now that all judgments of legal validity have binary effects.256 As
Habermas put it, “norms of action appear with a binary validity claim and are either valid
or invalid; we can respond to normative sentences, as we can to assertoric sentences, only
by taking a yes or no position or by withholding judgment.”257 Since binary effects are
harsh - laws are either upheld or invalidated; interests are either protected or exposed to
trespass,-258 strategies have been devised to mitigate these effects. One strategy has been
to experiment with remedies, under the assumption that the binary nature of judgments of
validity must reflect insufficiently nuanced remedies.259 But this solution poses an
insuperable difficulty: on the one hand, courts need additional means (from informationgathering tools to follow-up systems) to perform this remedial task appropriately, while
This tends to be forgotten in the mist of attacks of “formalism”. The work of legal philosophers, from
Jeremy Bentham to Frederick Schauer, proves the assertion wrong. See generally Frederick Schauer,
Positivism as Pariah, in ROBERT GEORGE (ED.), THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM
31-56 (1996).
255
I have mentioned above, without endorsement, Alexy’s distinction between rules and principles, and
that rights, which are principles, are not subjected to the logic of validity, which in Alexy’s view is the
logic of rules. See supra note ___. My present emphasis is on the perception of the “binary effects” of
judgments of legal validity, which include the interpretation and application of rights. The follower of
Alexy should not reject the use of “validity” concept in this case. After all, even Alexy acknowledges that
the outcome of any process of balancing rights can be stated as a rule to which the outcome can be
subsumed. See Robert Alexy, supra note____.
256
257
JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS 255 (1996).
Ronald Dworkin explains this by reference to the “bivalence thesis”, which applies to all dispositive
concepts, including law. To say that law is a dispositive concept means that “if a legal concept holds in a
particular situation, then judges have a duty, at least prima facie to decide some claim one way: but if a
claim does not hold, then judges have a duty, at least prima facie, to decide the same claim in the opposite
way.” The bivalence thesis states that “in every legal case either the positive claim, that the case deals
under a dispositive concept, or the opposite claim, that it does not, must be true even when it is
controversial which is true”.258 RONALD DWORKIN, A MATTER OF PRINCIPLE 119-120 (1985).
258
259
See Charles F. Sabel and William H. Simon, supra note ___ (Destabilization Rights); Richard H. Fallon,
Justiciability and Remedies--And Their Connections to Substantive Rights, 92 VA. L. REV. 633 (2006);
Daryl Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857 (1999).
70
on the other hand, giving courts the tools they need for such a project empowers them to
overstep the boundaries of their institutional roles. Another method has been to
renegotiate the relationship between courts and the parties, through demands for judicial
justification.260 The assumption behind this strategy is that, since little can be done about
the binary effect of validity judgments as such, at least judges should be candid about the
process by which they arrive at such judgments. Transparency, or candor, has become an
important element in the specification of the judicial standpoint.261
A third strategy is the subject of concern here. This strategy emphasizes the
relational dimension of legal rights. Once the framework of legal analysis expands to
include a wider audience,262 a court’s authoritative validity pronouncement is no longer
just the expression of a single interaction, but rather part of an ongoing interaction
between the rightholder and social institutions over time.263 As Minow writes:
“A claimant asserts a right and thereby secures the attention of the
community through the procedures the community has designated for
hearing such claims. The legal authority responds, and though this
response is temporary and of limited scope, it provides the occasion for
260
See CHARLES TILLY, WHY?, 20-21 (2006) (arguing that reasons confirm, establish, negotiate and repair
relationships between giver and receiver).
261
See infra.
262
See Martha Minow, Essay on Rights: Essay for Robert Cover, 96 YALE L. J. 1860 (1987). at 1867. The
relation between law and the social and political background against which law exists is dialectical. See
Laurence Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics,
103 HARV. L. REV. 1, 25 (1989) (describing the post-Newtonian legal paradigm as one in which “the state
is not [viewed] as a thing but as a set of rules, principles, and conceptions that interact with a background
which is in part a product of prior political actions. (…) [T]he people and the events (…) are not prepolitical; they too are in part shaped by political and legal interactions”). For a longer discussion of the
implications of this understanding for constitutional doctrine, with particular emphasis on the state action
doctrine, see CASS SUNSTEIN, THE PARTIAL CONSTITUTION (Harvard, 1993).
263
See Grutter v. Bollinger, 539 U.S. 306 at 342 (2003) (discussing the sunset provision in the context of
race-based admission policies). See also Robert Post, Forward: Fashioning the Legal Constitution,117
HARV. L. REV. 4 (2003).
71
the next claim. Legal rights, then, should be understood as the language of
a continuing process rather than the fixed rules. Rights discourse reaches
temporary resting points from which new claims can be made. Rights, in
this sense, are not “trumps” but the language we use to try to persuade
others to let us win this round”.264
Advocates of this more inclusive and context-sensitive approach to rights often
include as part of their case a critique of judicial objectivity. They deny the existence of
an objective judicial standpoint, which they see as external to the viewpoints of the
parties before them. For instance, Martha Minow disputes the historical association of
legal rights with “legal positivism or objectivity that implies an authoritative basis or
foundation beyond current human choices.”265 Catharine Wells describes situated
decision-making as the rejection of “the notion that there is a universal, rational
foundation for legal judgment. Judges do not, in their view, inhabit a lofty perspective
that yields an objective vision of the case and its correct disposition.”266 In this view,
objectivity is tantamount to disengagement from the complex real world of passion and
human interest; it expresses universality detached from context and the cold aloofness of
reason. It thus follows that when judges refrain from the claim to occupy an external
standpoint, adjudication will be able to show equal concern and respect for everyone
involved.
Consider how an approach based on positional objectivity integrates positionality
into decision making without abandoning objectivity. This conception helps us to
264
See Martha Minow, supra note ___(Essay on Rights), at 1875-1876 (footnotes omitted).
265
See Martha Minow, supra note ___(Essay on Rights), at 1877 (italics added)
266
Catharine P. Wells, Situated Decision-making, 63 S. CAL. L. REV. 1727, 1728 (1990).
72
understand the perception that proportionality treats the parties with equal concern and
respect. It does so by classifying the positions of the parties as equally objective. Recall
the challenge of identifying the standpoint from which courts can seek the “essential
content” of a right. The Constitutional Court of South Africa framed the challenge as
follows: “Should the essential content of a right] be determined subjectively from the
point of view of the individual affected by the invasion of the right, or objectively, from
the point of view of the nature of the right and its place in the constitutional order, or
possibly in some other way?”267 Similarly, David Beatty argues that: “Because it is able
to evaluate the intensity of people’s subjective preferences objectively, proportionality]
can guarantee more freedom and equality than any rival theory has been able to
provide.”268 We are now in a position to see that both of these arguments are mistaken
and that the opposite is true. Proportionality presents these advantages because it treats
the positions of both the rightholder and the government as objective.
This brings us to the second part of the explanation of why a method that treats
everyone with equal concern and respect is necessary, especially in the context of
balancing. Both parties in such a case present prima facie strong claims to institutional
action. Take the example of the District of Columbia gun ban at issue in Heller. The
District’s interest in passing gun-control laws was to lower the crime rates. This was part
of a larger, “primary concern of every government – a concern for the safety and indeed
the lives of its citizens.”269 Thus on the government’s side of the equation is the collective
interest, as distilled by elected representatives who ask the courts for permission to
267
S v Makwanyane and another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (6
June 1995), at para 132 (my italics).
268
See David Beatty, supra note ___ (The Ultimate Rule of Law), at 172.
269
128 S. Ct. Breyer at 2851-52 (citing US v. Salerno 481 U.S. 793, 755 (1987).
73
implement their policies. In proportionality analysis a measure must first pass the three
initial stages of analysis before entering the balancing at the last stage. At this point in the
process, an independent judiciary has already assented that its purpose is legal and
legitimate, and that its content and method of application is both suitable and necessary to
achieve that legitimate purpose. The more stages of proportionality analysis a regulation
survives, the stronger the government’s claim becomes. On other side of the equation is
the interest of the right-holder. In Heller the majority interpreted it as an individual
interest in self-defense. The protection of that interest is also a strong prima facie claim,
as it has already been granted the highest form of protection that a modern legal system
can offer, namely enshrinement as a constitutional right.270 In this way positional
objectivity highlights the feature of proportionality that allows it to treat the objective
claims of all the parties with equal concern and respect.271
3.2.2. Correctness.
The way that the proportionality test is applied in any given case, based on the four selfcontained steps of the analysis, will determine if the outcome is correct – or objective - in
a procedural sense. Whether the outcome is justified by any given theory of justice will
determine its substantive correctness. Positional objectivity adds a third such dimension:
structural correctness. It gives proportionality the institutional and normative dimension
that its critics demand of its claim to impartiality and objectivity. This third dimension
270
Hence the argument, in section XX, that at least sometimes and within limits, rightholders have the
authority to specify the cores of their rights.
271
The strength of the interests at play in balancing analysis indicates why the narrow interpretation of
positional objectivity is preferable to the broad interpretation that ascribes that label even to manifestations
of subjective arbitrariness. Of course, interests such as the ones mentioned here would qualify as objective
under both accounts, but only under the former conception does the qualification have any weight.
74
comes in the form of a reconstructive test, which acts as a check on the result of
balancing at the last stage of proportionality analysis.
The previous section has suggested that judges occupy a trans-positional role in
relation to the parties. I have also indicated that the claims of the parties are equally
objective. It is further possible to conceptualize the judicial standpoint as objective
without denying the objectivity of the parties’ claims. Note how emphasis on the
institutional roles shows both the importance of the institutional perspective – much in
the way that advocates of rights as structural reasons have suggested – as well as that the
institutional positions are, in a sense, mere “roles.” Moreover, they are mutable roles,
since the fact that the individual occupies any given role, as opposed to any other, may be
the result of fortune as much as of virtue or vice. It is a failure only of imagination, not of
possibility, if one cannot conceive of an individual taking a different turn in “the yellow
wood,”272 and occupying a role quite at odds with the one they currently inhabit. Under
the alternative scenario, Mr. Heller might have been the elected official in charge of
lowering crime rates in D.C.
This point may be obvious but it is not banal. The four-step proportionality test
details the methodology that judges use in the trans-positional assessment. To weigh the
interests of the parties, they must determine the inner worth of the objective claims for
institutional action and then transcend them in order to reach a decision. That decision
will be procedurally correct if it is made pursuant to a properly applied proportionality
method. A different standard applies to its structural correctness. An outcome of judicial
272
Robert Frost, The Road Not Taken in Selected Early Poems 141 (Thomas Fasano ed., Coyote Canyon
Press)(2008).
75
balancing is correct in a structural sense if it is the outcome that the parties themselves
would have reached if they occupied the trans-positional role of the decision-maker.
Like the allocation model, this standard sees all the participants - the rightholder,
the state and the judge - as occupants of institutional roles. But these roles are mutable.
While the constitution allocates their existence as institutional roles, how each actor ends
up inhabiting a certain role need not be the object of allocation. Moreover, it is essential
that the actors have the necessary information to imagine themselves in different social
roles. In a sense, the conception advanced here represents the opposite of John Rawls’s
device of decision-making behind the veil of ignorance. While Rawls stripped the
representatives of the parties in the original position of all information, short of the
minimum they needed in order to know the stakes of their deliberative process, the model
advanced here gives the decision maker access to as much information as possible. That
information, however, is structured only by the set of concerns associated with the role
the constitution allocates to it.
This formula shares a family resembles with Jürgen Habermas’ conception of the
legitimacy of modern law.273 According to Habermas, a law is legitimate to the extent
that its addressees can see it as the unanimous agreed upon outcome of our hypothetical
communication process having the same aim as that for which the given law has been
enacted.274 In this view, it is in the following of a procedure of lawmaking that we may
see ourselves concomitantly as rational authors and the addressed, self-determined and
It might indeed come close to Jürgen Habermas’ conception of procedural legitimation, given how much
Habermas packs into that conception. For a discussion, see Frank Michelman, Family Quarrel, in M.
ROSENFELD AND A. ARATO (EDS.), HABERMAS ON LAW AND DEMOCRACY: CRITICAL. EXCHANGES (1998)
273
274
See Jürgen Habermas, supra note ___ (Between Facts and Norms), at __.
76
self-ruled members of a democratic community.275 Habermas writes that “the modern
legal order can draw its legitimacy only from the idea of self-determination: citizens
should always be able to understand themselves also as authors of the law to which they
are subject as the addressees.”276
This approach has important advantages. First, as we have seen, it emphasizes the
mutability of institutional roles. It helps the parties develop their “normative
imagination,”277 to place themselves in other positions than the ones they occupy at a
given moment. Authors have often underscored the importance of this mutability. For
instance, Catharine Wells writes that: “Understanding a controversy … requires that it be
experienced from several different perspectives as a developing drama that moves
towards its own unique resolution.”278 The idea of a unique resolution alludes to the
contextualism that characterizes any balancing method.279 Another advantage of
balancing is to focus attention on the responsibility involved in the selection of a given
standpoint. This applies to all the different positions but most of all to the trans-positional
standpoint of the judicial decision-maker. Another related advantage it offers is a
conceptual framework that does justice to the complexity of constitutional litigation. By
emphasizing the construction and mutability of roles, this framework shows litigation to
be more complex than a conflict between the individual and the government. Finally, this
275
See Jürgen Habermas, supra note ___ (Between Facts and Norms), at 31 (distinguishing between
strategic and communicative dimensions, arguing for the need that the addressees of the laws follow legal
rules from the nonenforceable motive of duty: “the legal order must always make it possible to obey its
rules out of respect for the law").
276
JÜRGEN HABERMAS, Postscript to Between Facts and Norms at 449.
277
MARTHA NUSSBAUM, CULTIVATING HUMANITY 85-112 (1997).
278
See Catharine P. Wells, supra note ___ (Situated Decisionmaking), at 1734.
279
See generally Sujit Choudhry, supra note ___ (So What Is the Real Legacy of Oakes____); Stephen
Gardbaum, supra note ___ (Limiting Rights), at__.
77
standard cuts across the substance/procedure dichotomy that mars many analyses of this
kind. On the one hand, it is not limited to a procedure, such as the four steps of
proportionality analysis. On the other hand, it does not implement the tenets of a certain
substantive theory of justice.280 That could of course be done, but then the method would
no longer “treat everyone with equal concern and respect.”281
3.3. Specifying the Judicial Standpoint.
As is the case with any claim to objectivity, it is necessary to specify the positional
parameters of the judicial standpoint in proportionality analysis. The existence of judicial
balancing does not render the process arbitrary. As Justice Breyer writes in Heller, the
“application of such an approach, of course, requires judgment, but the very nature of
the approach – requiring careful identification of the relevant interests and evaluating the
law’s effect upon them – limits the judge’s choices.”282 Even from a trans-positional
standpoint, objectivity (in the narrow sense adopted above)283 requires that its parametric
specifications do not include “biasing factors.” For instance, a judicial outcome will not
280
Although it is compatible with number of such theories that respect the imperatives of freedom, equality.
For a similar argument, see Mattias Kumm, supra note ___ (Constitutional Rights as Principles), at 590591 (arguing that Alexy’s theory of constitutional rights is compatible with the tenets of political
liberalism).
For an argument about what constitutes a “political”, as opposed to a “comprehensive”, conception, see
JOHN RAWLS, POLITICAL LIBERALISM (1996). See also Kathleen Sullivan, supra note ___ (Post-liberal
Judging), at 317 (“Categorization and balancing are competing responses to analogical crisis. The choice
between them cannot be successfully explained by general constitutional theory. Nor can the choice
between them systematically determine outcomes… If we are entering an era of increasing categorization
to conservative ends, then it is predictable that liberal advocates will favor balancing approaches. But this is
a contingent choice; balancing does not inherently favor rights, and balancing is second-best to
categorization that favors rights. Constitutional theory that elaborates the substance of rights and
government interests may be in the service of balancing for now, but today’s balancing might be
precipitated by tomorrow’s categorical rules.”).
281
282
128 S. Ct at 2868 (Breyer, J., dissenting).
283
See 128 S. Ct at 2868 (Breyer, J., dissenting).
78
be objective if the social background of judges is a factor in the parametric specification
of the court’s position.
This sub-section examines the specifications of the judicial standpoint in
proportionality. It draws specifically on Justice Breyer’s analysis in Heller,284 and his
implicit claim that these elements make proportionality preferable to other constitutional
methodologies.285 Four elements are discussed here: administrability, transparency,
institutional design and cognitive constraints. It is helpful to understand these elements as
capturing four core aspects of the positionality of courts in relation to different primary
audiences. In the case of administrability, the main audience is lower courts (though we
will see that some dimensions of administrability apply to the parties as well); in the case
of transparency, the audience is the parties; with institutional design, the main audience is
composed of other political institutions; the last element refers to the cognitive capacity
of judges. Of course, other, secondary, audiences are always in the background.
A few final caveats are in order. First, the list mentioned here is not exhaustive. Not only
could other elements be added, but some of these specifications discussed below might
not be embraced by those who do not share Justice Breyer’s jurisprudential outlook.
Second, these elements do not offer answers to real cases. They are part of an
institutional approach to particularized judicial decision-making in constitutional law. As
such, they do not escape the antinomies between coordination and fairness, order and
justice, reason and will, that pervade the constitutional system. Finally, it is possible,
indeed desirable, to specify these elements further, for instance by adding particular
substantive requirements of justice. That project is important and challenging since it
284
128 S. Ct. 2783, 2847-70 (Breyer, J., dissenting).
285
See 128 S. Ct. 2868-70 (Breyer, J., dissenting).
79
must show how proportionality can integrate a theory of justice while treating “with
equal respect and concern” the parties that do not subscribe to it.286
3.3.1. Administrability
Proportionality is a method of legal analysis that structures contextual, case-based
decision-making just enough to rein in judicial discretion without undermining the
flexibility that gives the method its appeal in the first place. In this sense, proportionality
walks that middle road: it is structured but not rigid; it is flexible while remaining
reasonably predictable.
If this were the totality of proportionality, its triumph as “the most successful
legal transplant of the second half of the twentieth century”287 would remain a mystery.
For while virtually no one denies the need for such a method, many doubt that such a
method is feasible. It is the purpose of the administrability requirement to ensure
feasibility, and this in turn confers upon proportionality its runaway success.288
Proportionality is administrable when it is applied by courts in a way that guides their
inquiry without stifling it. An administrable method can further show that the method is
not “freestanding,” and addresses the background audience of the parties to a case and
political institutions.
286
See generally John Rawls, supra note ___ (Political Liberalism).
287
Mattias Kumm, supra note ___ (Constitutional Rights as Principles), at 595.
288
The introduction alluded to a comparison between Breyer argument for proportionality and the
constitutional trajectory of the Holmes/Brandeis “clear and present danger” test, from dissent to accepted
standard. Learned Hand voiced Concerns about the administrability of the test. They are described in
Gerald Günter, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of
History, 27 STAN. L. REV. 719, 749 (1975).
80
The need for administrable judicial standards applies to all constitutional
methods, both contextual and categorical. In Heller, Justice Breyer criticizes the majority
for not setting forth criteria that future courts can use in deciding forthcoming challenges
triggered by the Court’s decision. Specifically, the majority in Heller acknowledged there
are limits on the right to keep and bear arms289 and gave examples of gun regulations that
courts would likely uphold,290 yet still failed to tell lower courts how to decide future
cases. The lack of administrable standards impacts not only lower courts, but also
legislators who will be left in the dark about how to tailor gun regulations. Accordingly,
courts will intrude upon the policymaking attributes allocated by the constitution to
elected officials.291 The irony of the attack should not be lost: after all, this critique is
mounted by an adept of proportionality, a camp that has typically been its target.
What gives advocates of proportionality the upper hand, that is, what within this
method makes it administrable? Consider its structure of four distinct steps. This
distinctness is crucial. A law proceeds to the next step of the test only if it has survived
review at the previous stages. Concerned that the Canadian approach blurs the line
between the “necessity” stage and the balancing stages of the test, Dieter Grimm argued
128 S. Ct. at 2816 (“Like most rights, the right secured by the Second Amendment is not unlimited.
From Blackstone through the 19-th century cases, commentators and courts routinely explained that the
right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose.”).
289
290
They include prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment
rights, prohibitions on the possession of firearms by mentally ill, laws forbidding the carrying of firearms in
schools or government buildings.
128 S. Ct. at 2868 (Breyer, J., dissenting). (“I cannot understand how one can take from the elected
branches of government the right to decide whether to insist upon a handgun-free urban populace in a city
now facing a serious crime problem and which, in the future, could well face environmental or other
emergencies that threaten the breakdown of law and order.”).
291
81
that “a confusion of the steps creates the danger that elements enter the operation in an
uncontrolled manner and render the result more arbitrary and less predictable.”292
There is also internal pressure to make each individual step of the analysis more
administrable in its own right. The example of the Canadian courts mentioned in part two
illustrates well this tendency. The Canadian Supreme Court attempted to devise doctrines
and categorical distinctions to make future judicial intervention both manageable and
predictable. At the third step in proportionality analysis, where courts review the
“necessary” character of the given measure for achieving the purpose, in part by inquiring
into the availability of alternative means,293 the Canadian court sought to structure this
legal analysis by implementing categories and distinctions. Criteria sampled included the
nature of the competing interests and the distinction between the core and periphery of
the rights in question, but, as we saw, these could not contain the factual complexity and
uncertainties of actual cases. 294 The court eventually embraced context-based analysis,
which in turn made it vulnerable to charges of arbitrary decision making. Put differently,
embracing unstructured contextualism challenged the positional objectivity of courts
because it weakened its administrability component.
At the same time, proportionality must also avoid over-structuring the analysis at
the risk of becoming too rigid. For instance, the South African Constitutional Court
rejected “mechanical adherence to a sequential check-list,”295 which it associated with an
292
Dieter Grimm, supra note ___ (Proportionality), at 397.
293
It should be recalled that this is the most important step in the Canadian interpretation of proportionality.
294
See generally Sujit Choudhry, supra note___.
295
S. Manamela, 2000 (3) SA 1 (CC), at 20 (cited in Stephen Gardbaum, supra note ___ (Limiting Rights),
at 841).
82
insufficiently nuanced and contextual American standard of strict scrutiny. 296 To
conclude, the challenge of administrability is great in the case of particularized judicial
decision-making. Proportionality answers this challenge through its four-step structure
and the standards of analysis built into each of the steps. The proof of success, in legal
systems where this method is regularly used, is that courts have been able to develop a
rational legal discourse and integrate the method within systemic stare decisis.
3.3.2. Transparency
After acknowledging in Heller that proportionality “requires judgment,”297 Justice
Breyer continued: “the method’s necessary transparency lays bare the judge’s reasoning
for all to see and to criticize.”298 Transparency is part of the case for proportionality.299
There is a growing literature, which goes back at least to the inception of legal
realism,300 which identifies transparency and judicial candor as what we can now call a
parametric specification of the judicial standpoint.301 It sees them as part of a larger
process of mitigating what I described above as the uncompromising effects of judgments
This is also Breyer’s position in Heller. He argued that neither the presumption of constitutionality (as in
rational-basis test) nor that of unconstitutionality (as in strict scrutiny) of Second Amendments state
infringements is warranted. See 128 S. Ct. at 2851-52 (Breyer, J., dissenting).
296
297
128 S. Ct. at 2867 (Breyer, J., dissenting).
298
128 S. Ct. at 2867 (Breyer, J., dissenting).
128 S. Ct. at 2868 (Breyer, J., dissenting). (“The majority’s methodology is, in my view, substantially
less transparent than mine.”). He specifically takes issue with: its findings about what constitutes the “core
of the second Amendment right” (Id. at 2869), its conclusions about which loaded “arms” a homeowner
may keep (Id. at 2869), and why it indicates that the gun regulations it provides by way of example would
survive constitutional scrutiny (Id. at 2869-70).
299
300
Supra note ___.
301
See generally David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731 (1987); Scott
Altman, Beyond Candor, 89 MICH. L. REV. 296 (1990); Scott C. Idleman, A Prudential Theory of Judicial
Candor, 73 TEX. L. REV. 1307 (1995); Micah Schwartzman, The Principle of Judicial Sincerity, 94 VA.
L. REV. ( 2008); Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 GEO. L.J. 353
(1989).
83
of legal validity. Their role is to re-negotiate, through access to the court’s reasoning, the
relationship of power between the court and its addressees. Charles Tilly, the famed
sociologist who studied reason-giving, concluded that “the ability to give reasons without
challenge usually accompanies a position of power. In extreme cases such as high public
offices and organized professions, authoritative reason giving comes with the territory.
Whatever else happens in the giving of reasons, givers and receivers are negotiating
definitions of their equality of inequality.”302 Demands for greater transparency are part
of the process of negotiating the relationship of power between courts and the parties
before them.303
Such demands are heightened, along with the risk of power abuse, when courts
engage in particularized judicial decision-making. Consider one form that arguments
against the model of rights as categorical reasons typically take: that it is a front-loading
of rights interpretation toward the definition, as opposed to limitation, stage of analysis.
Rather than interpreting rights broadly and then focusing the interpretation on whether
the infringement is justified, the central question in this model is whether there is a right
in the first place.304 Take as an example, the question of whether constitutional liberty
protects the interests of terminally ill patients to access experimental drugs.305 In this
view, the question turns in the first place on the definition of constitutional liberty (or
302
Charles Tilly, supra note ___ (Why?), at 24-25 (footnotes omitted).
See also Charles Tilly, supra note ___ (Why?), at 158 (“the credibility of reasons always depends on the
relation between the speaker and audience, in part because giving of reasons always says something about
the relation itself.”).
303
304
Stephen Gardbaum refers to this as “internal limits on rights”, see supra section XX.
305
Abigail Alliance for Better Access to Experimental Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir.
2007), cert. denied mem., 128 S.Ct. 1069 (2008).
84
privacy ), rather than relying on a broad interpretation of the right followed up with a
further question as to whether the government can justify an infringement on this right.
Critics argue that the first model is more opaque, and the loss of transparency
might be an acceptable price to pay, if the model managed to avoid balancing. But does
it? The same critics argue that it does not. Rather than avoiding it, it only pushes
balancing to the definitional stages. “Definitional balancing” is performed in the dark,
thus allowing courts silently to assume the standpoint of the party it wants to see prevail.
Of course the court will have to make a decision, but even if on the merits that decision
will advantage one of the parties, it is mistaken to describe the court as “siding with” that
party, which is what these critics are ultimately charging. In fact, the court will reach the
outcome from a trans-positional standpoint and after objectively weighing the interests of
both parties. Put differently, the court will decide for reasons of its own: once an
argument that was originally advanced by a party succeeds in persuading the court
(which looks on from its trans-positional standpoint), that arguments status is
transformed. Transparency thus lets us look through and see that the court decided the
case from an institutionally defensible, trans-positional standpoint as opposed to simply
adopting the perspective of one party pre-judgment.
3.3.3. Institutional Design
Another element in the specification of the judicial standpoint is fidelity to institutional
design. The advantage in framing the issue as one of institutional design, rather than, say,
one of separation of powers, is to leave open the possibility of institutional experiments.
The primary focus of this sub-section is how courts position themselves in relation to
85
political institutions, especially towards the executive and legislature whose acts courts
review for constitutional conformity.
It has been argued that courts engaged in proportionality analysis should position
themselves differently in relation to the legislature than they do towards the executive, by
showing greater deference to the former than the latter. In making a case for
constitutional balancing on democratic grounds, Stephen Gardbaum argued that: “[T]he
only standard of review that coheres with the basic reason for the override power is one
that is relatively deferential to the underlying legislative judgment.”306 At least in theory,
the legislature has better democratic credentials than the executive, including those
conferred by a more participatory and transparent decision-making process. On these
grounds, some scholars have gone so far as to advocate a categorical rule of judicial
deference to the legislature, whereas proportionality could still apply to the acts of the
executive.307
Controversy over the institutional factor is compounded by debates about the legitimacy
of judicial review. The textual basis for judicial review differs among constitutional
systems, as does the assertiveness of courts in reviewing legislation. We have seen in part
two this element of positionality under discussion when Canadian courts had to decide
the allocation of risk under conditions of empirical uncertainty during the third stage of
the proportionality analysis.308 Courts in other constitutional systems, including
Germany, tried to “avoid this dilemma”309 by deferring more to the legislature.
306
See Stephen Gardbaum, supra note ___ (Limiting Rights), at 845.
307
A similar argument has been presented in other constitutional systems. See Bernard Schlink, supra note
___.
308
See Sujit Choudhry, supra note ___ (So What Is the Real Legacy of Oakes?), at 521.
309
Dieter Grimm, supra note ___ (Proportionality), at 390.
86
In Heller, Justice Breyer used a perspectival approach in advocating deference under
conditions of uncertainty to (what in Heller was a state) legislature, if the legislature’s
empirical findings and interpretations pass the low threshold of reasonableness.310 He
writes that:
The upshot is a set of studies and counterstudies that, at most, could leave a judge
uncertain about the proper policy conclusion. But from respondent’s perspective
any such uncertainty is not good enough. That is because legislators, not judges,
have primary responsibility for drawing policy conclusions from empirical fact.
And, given that constitutional allocation of decision-making responsibility, the
empirical evidence presented here is sufficient to allow a judge to reach a firm
legal conclusion.311
This is how proportionality integrates the institutional insights about the allocation of
decision-making authority, which is central to the model of rights as structural reasons,
within a larger framework that is fine-tuned to the context of each case.
3.3.4. Cognitive Constraints
Finally, the method of proportionality imposes cognitive constraints on judges and filters
out the biases that affect the parties. From the trans-positional perspective, judges can
correct how the parties perceive the biases affecting their opponents while remaining
128 S. Ct. at 2859 (Breyer, J., dissenting) (“In a word, the studies to which respondent’s amici point
raise policy-related questions. They succeed in proving that the District’s predictive judgments are
controversial. But they do not by themselves show that those judgments are incorrect; nor do they
demonstrate a consensus, academic or otherwise, supporting that conclusion.”).
310
311
128 S. Ct. at 2860 (Breyer, J., dissenting).
87
oblivious to those affecting their own positions.312 While trans-positional assessments are
not bias-free, a number of defense mechanisms are built-into proportionality. For
instance, the division of the test into four separate steps imposes an institutional
framework that structures judicial reasoning. Deliberation and reflection are central to the
institutional role of the judiciary and offset the all too human impulse to decide based on
intuition.313 The operative word here is “decide.” It may well be that sometimes judges
incline to decide a given case based on intuition, but the role of structured reflection is to
override the pull of intuition.314 The features of proportionality act as cognitive
constraints, or as a “mental double-check”315 on judges. In addition to the multi-step test,
the requirement that judges justify their decisions in writing also acts as a constraint.316
Furthermore the requirement to give reasons that the parties could “not reasonably
reject”317 holds in check the influence of intuition.318 Institutional design can also lead to
See Dan Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 144 (2007) (“People are not blind
to the influence of cultural commitments on the beliefs of those who disagree with them about contentious
policy issues; on the contrary, they readily perceive this relationship, and for that reason to attribute to their
adversaries either bad faith or subconscious rationalization.”)
312
Some authors have raised the question whether the training judges receive to “think like a lawyer” does
not set their cognitive instincts apart. See Frederick Schauer, Is There a Psychology of Judging? in DAVID
E. KLEIN & GREGORY MITCHELL (EDS.), THE PSYCHOLOGY OF JUDICIAL DECISION MAKING (forthcoming
2008)
313
314
Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide
Cases, 93 CORNELL L. REV. 1, 3 (2007). Id at 5 (“Eliminating all intuition from judicial decision making is
both impossible and undesirable because it is an essential part of how the human brain functions. Intuition
is dangerous not because people rely on it but because they rely on it when it is inappropriate to do so. We
propose that, whenever feasible, judges should use deliberation to check their intuition.”) (footnote
omitted).
315
Dan H. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v.
Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. (forthcoming 2009), at 57.
316
Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, see supra note ___ (Blinking on the Bench),
at 36.
317
For a version of this argument, see generally T.M. SCANLON, WHAT WE OWE TO EACH OTHER (1998).
318
This particular justification requirement could be seen as a familiar marker of epistemological
objectivity. See Brian Leiter, Objectivity, Law and Objectivity in BRIAN LEITER, NATURALIZING
JURISPRUDENCE 262 (2007). Some authors have argued that the requirement extends beyond courts. See
Dan Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 116 (2007) (“The duty of lawmakers,
88
similar results, for instance by requiring that judicial panels be composed of judges with
different ideological orientations.319 More generally, the mutability of institutional roles,
under the model that was advocated here, may mold judicial intuitions overtime.320
CONCLUSION
This article has examined the institutional dimension of proportionality analysis, the most
elaborate method of particularized judicial decision making in constitutional law.
Drawing on Amartya Sen’s conception of positional objectivity, it has (re)constructed the
standpoint of judges applying the proportionality test as objective, impartial and overall
institutionally defensible. Contrary to the dominant view, the fate of proportionality does
not depend on how well it captures the “essence” of rights; nor is proportionality
presupposed in the very structure of the constitutional system any more than other
methods of judicial decision making. In fact, the method’s greatest strength is precisely
what its opponents have persistently mistaken as its major weakness, namely its
institutional dimension. Unlike other methods of constitutional interpretation, the judicial
standpoint in proportionality analysis does not force upon judges an impossible choice
between rigid constitutional rules and flexible standards. Proportionality offers at least
judges and citizens to justify their positions on grounds susceptible of affirmation by persons of diverse
moral persuasions … is deeply woven into prevailing norms of legal and political discourse.”) (footnote
omitted); See also Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84
HARV. L. REV. 1329, 1375-1376 (1971) (“Methods of proof that impose moral blame or authorize official
sanctions on the basis of evidence that fails to penetrate of convince the untutored contemporary intuition
threaten to make the legal system seem even more alien and inhuman than it already does to distressingly
many.”) (footnote omitted).
319
See generally CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT____ 166-193 (2003).
320
See Dan H. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott
v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. (forthcoming 2009), at 58 (“Reason is
growing… on the power of the judicial role to impart habits of mind that counteract certain types of biases,
including ones that distort moral reasoning.”) (footnotes omitted).
89
the promise of a method that, when applied appropriately, is sufficiently structured
without being rigid and sufficiently flexible while remaining reasonably predictable.
However, like all methods, proportionality can be misapplied and does not
guarantee any particular quality or substance of outcome. An argument can be made that
a correct application of the proportionality test in Heller would have led Justice Breyer to
an outcome substantially similar to that of the majority, albeit by following a different
path. A different trans-positional assessment was possible that avoided the symmetrical
trap of, on the one hand, constructing a hierarchy of interests within the right, with the
interest in individual self-defense as a merely subsidiary interest, and, on the other hand,
being overly deferential to the District’s legislative findings that all but wiped out the
interest protected by the constitutional right to keep and bear arms. Unsurprisingly, there
can be disagreement about how proportionality should apply in a given case. This might
lead some to argue, not implausibly, that clear rules applied in categorical fashion protect
rights more efficiently.321 Even so, it is worth recalling that oftentimes constitutional
provisions (categorical rules included) require interpretation and that, in difficult cases,
strong arguments will be made by the parties with conflicting interests. Proportionality,
then, provides an otherwise absent framework for structuring the process of reason
giving.
That framework itself is a powerful tool. Foreign courts have used it to
invalidate practices so entrenched that they seemed to be permanent fixtures of society.
Earlier this year, the Supreme Court of Brazil held that the practice of police handcuffing
is proportionate with the protection of human dignity only in exceptional
321
See Kathleen Sullivan, supra note ___ (Post-liberal Judging).
90
circumstances,322 and we have already seen how the Constitutional Court of South Africa
invalidated capital punishment as disproportional.323 Even if Justice Breyer’s advocacy of
proportionality will eventually become law, like other historical dissents, it is not
apparent that American courts would use this test in a fashion similar to that of foreign
courts, given the differences in legal and political cultures.324 These examples are
nevertheless useful in showing the possibilities and promise offered by proportionality.
That promise forms an essential part of the case for proportionality. The quandary
of rights adjudication is how to protect the fundamental interests of individuals without
sacrificing the good of a community in which they lead their lives. Proportionality allows
judges to reconcile these interests without stepping outside of the constitutional structure.
322
See HC91952/SP STF AUG/07/2008, available at
http://www.stf.gov.br/portal/processo/verProcessoAndamento.asp?numero=91952&classe=HC&origem=A
P&recurso=0&tipoJulgamento=M (last visited, August 17, 2008).
323
See supra note ___.
324
For a comparison between the American and South African constitutional cultures, see Frank I.
Michelman, Brown at Fifty - Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the
United States and South Africa, 117 HARV. L. REV. 1378 (2004).
91