Proportionality Balancing and Constitutional Governance

Abstract

This book focuses on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when they fail the proportionality test. The result has been a massive—and global—transformation of law and politics. The book explicates the concepts of “trusteeship,” the “system of constitutional justice,” the “effectiveness” of rights adjudication, and the “zone of proportionality.” A wide range of case studies analyze: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing “constitutional dialogues” with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the heart of governance in the modern constitutional state and beyond.

The territorial architecture of government

“…Alongside the vertical territorial re‐organization of authority, many governments have decentered authority horizontally to non‐majoritarian institutions (Thatcher & Sweet, 2002). These included reforms to increase central bank autonomy (Garriga, 2016), privatization (Schmitt, 2014), agencification (Jordana et al, 2018; Verhoest, 2018), and judicial review (Stone Sweet, 2017; Stone Sweet & Mathews, 2019), many of which insulated decision making from democratic pressures (Peters, 2016, 2018).…”

Making Legal Knowledge Work: Practising Proportionality in the German Repetitorium

“…One corollary of this designation is that the exams concluding these studies are ‘State-’, rather than mere ‘university’, or even ‘bar’, exams, organized by public authorities in the different German Länder . In fact, until 2002, grades obtained at university law faculties were entirely irrelevant to the final grade obtained in the so-called ‘First State Exam’ (since then called the ‘First Juridical Exam’) (Böning, 2013; van de Loo and Stehmeier, 2013). Alongside their law faculty studies, which in Germany are tuition-free, the vast majority of law students – by common estimates around 80% to 90% - also enrol with commercial providers, or ‘ Repetitoren ’ to prepare for their State Exam (Die Zeit, 1994; FAZ, 2011; Kilian, 2016).…”

How Non-Majoritarian Institutions Make Silent Majorities Vocal: A Political Explanation of Authoritarian Populism

“…On one hand, the declining trust in parties that started in the 1960s required compensation through the empowerment of trustworthy institutions. Simultaneously, the juxtaposition of two political camps created a common interest to constrain the opponent when out of power (Stone Sweet and Mathews 2019, 18). In this situation, majoritarian decisionmakers are more likely to transfer competencies to trusted institutions to balance and increase legitimacy at the same time.…”