Proportionality and Constitutional Governance

Abstract

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

Proportionality in Comparative Law

“…Webber [2010], Urbina [2017]), the relevant discussions still tend to largely assume that 'proportionality' at least is where the action is -that the issues it raises are the issues that matter, and that 'proportionality' indeed is both a significant site and a useful lens for grappling with them. This sense of importance and centrality is reflected in Alec Stone Sweet and Jud Mathews' depiction of 'proportionality balancing' as a 'global, best-practice standard of rights protection' and a 'master principle of global governance', and their forceful claim that it is 'undeniable … that the global diffusion of proportionality has altered the constitutional landscape' (Stone Sweet and Mathews [2019] at 4, 7). Taking all this together, we certainly do seem to live in an 'age of proportionality' -one in which our juridical worlds are not just governed through, but also largely made by, proportionality (Jackson [2015]).…”

“…proportionality as an element of 'generic constitutional law' or a 'global model', and as a 'general principle of constitutional governance, the reach of which is global' (Law [2005], Möller [2012], Stone Sweet and Mathews [2019] at 194). These affirmations are typically accompanied by caveats that if proportionality review in different settings involves 'a single evolving template', it is still applied with 'many differences in style, presentation and detail', or that it corresponds to a global 'lingua franca' spoken 'with different dialects' (Kennedy [2011] at 218-219, Stone Sweet and Mathews [2019] at 81, Grimm [2007]). On the other side are scholars who question whether 'the same test [is] being applied around the world' (Kenny [2018] at 539), or at different times in the same jurisdiction (Petersen [2017], Jestaedt and Lepsius [2015]).…”