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………………….……………141.2. Rights as Substantive Reasons: The Proportionality Model…………….…………..22

2. The Proportionality Debate……………………..…………………...………………30

2.1. The Proportionality Test………………………………………….…………………302.1.1. Comparative Perspective: Canada and Germany ……………….…………….312.1.2. Justice Breyer’s Heller Dissent…………………………………...…………….39

2.2. Defending Proportionality ……………………………………….…………………492.2.1. The Rights Defense: Preserving The “Essence” of Rights……….…………….502.2.2. 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………………………………………………..693.2.1. Respect and Impartiality…………………………………………………..……693.2.2. Correctness ………………………………………………………………...…..74

3.3. Specifying the Judicial Standpoint……………………………………………….….783.3.1. Administrability …………………………………………………………….…..803.3.2. Transparency………………………………………………………………..….833.3.3. Institutional Design ………………………………………………………….…853.3.4. Cognitive Constraints……………………………………………………….….87

Conclusion ……………………………………………………………………………...89

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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.

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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 decision-

making?

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

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).

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standards.4 It places traditional “free balancing”5 within a larger conceptual framework

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

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 'Principles-Based 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); 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]. 6 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).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 all-things-considered and principled judgments.).

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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

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

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).9 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). 10 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.74.11 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).

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unconstitutional. 12 The dissents argued that the interest in self-defense was “at most

subsidiary” 13 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

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 gun-

related 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

12 128 S. Ct. at 2821: (“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”). 13 128 S. Ct. at 2866 (Breyer, J. dissenting); see also id. at 2831 (Stevens, J., dissenting). 14 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). 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.”).17 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).

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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

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

18 DAVID BEATTY, THE ULTIMATE RULE OF LAW 162 (2004). See also Gardbaum, Limiting Constitutional Rights, supra note ____, at 792.19 Beatty, The Ultimate Rule of Law, supra note ____ at 159. 20 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.”).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). 23 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). 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).

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mechanism for perpetuating entrenched asymmetrical relations of power in society.25

After surveying more than three decades of proportionality analysis in German law,

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

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.”). 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).

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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

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

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). 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” institutionally-defined 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.”).

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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

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

31 See Robert Alexy, Constitutional Rights, Balancing and Rationality, Ratio Juris 16 (2), (2003), at 136.32 Robert Alexy, Balancing, Constitutional Review, and Representation, 3 INT’L J. CONST. L. (I-CON) 573, 574 (2005).33 See supra note ___.34 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) (“The specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance.

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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

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

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), 433-49 (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 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.”). 37 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).38 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

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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

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,

divides citizens on social, cultural and political lines.”).

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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

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

39 See Pildes, supra note ___ at 714. 40 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). 41 See 128 S. Ct. 2783.42 H.L.A. Hart has put this idea nicely in commenting on Robert Nozick’s conception of rights as side-constraints (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?”).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

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uneasiness with entrusting judges to make decisions about limitations on rights.44

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.

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.”).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). 47 German Basic Law, Art 1(1): “The dignity of man inviolable. To respect and protect it is the duty of all state authority.”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). 49 H.L.A. Hart has put this idea nicely in commenting on Robert Nozick’s conception of rights as side-constraints (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?”).

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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

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.

50 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.”).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. 52 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.”).53 128 S. Ct. 2783 at 2821.

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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

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

54 Pildes, Avoiding Balancing, supra note ___ at 713.55 Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test , 76 HARV. L. REV. 755 (1963), at 769.56 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).

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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

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

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. 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.

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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

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

64 Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660 (1988).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).

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“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

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.

67 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).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”). 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). 73 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.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).

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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

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

76 Jürgen Habermas, supra note ___ (Between Facts and Norms), at 257.77 Ronald Dworkin, supra note ___ (Taking Rights Seriously), at 269. 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). 82 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.”).

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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 philosopher-

kings.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

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

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). 86 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 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.

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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

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.

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).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)).

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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,

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 super-

valued, 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

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). 93 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).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).

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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

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

95 128 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.”).96 Employment Division, Dep’t of Human Resources v. Smith, 485 U.S. 660 (1988).97 128 S. Ct. 2783.98 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).

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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

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

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. 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___.

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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.

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

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).107 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.”).108 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.”). 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

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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?

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

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 749.112 128 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.”).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).

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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: “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

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.”). 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

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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

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

LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005).

119 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 2821.120 Kathleen Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293, 309 ( 1992) (footnotes omitted).

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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 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

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.

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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

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 cross-

123 See generally Alec Stone Sweet, supra note ___ (Balancing, Proportionality and Global Constitutionalism); David Curie supra note ____ (Constitutional Law of German), at 307-309.

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jurisdictional 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

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.”

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). 125 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.”126 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.”127 “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.”128 We have already noted the exception that the right to dignity cannot be limited in German law. See supra note ___.

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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

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.

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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

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

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).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

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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

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

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 __. 137 See generally SCHAUER, PLAYING BY THE RULES, supra note ___. 138 Cite]

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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

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

139 See R v. Edwards Books & Art Ltd. 1986] S.C.J. No. 70, 1986] 2 S.C.R. 713 (Supreme Court of Canada). 140 See Grimm, Proportionality, supra note ___, at 394. 141 See Mattias Kumm, supra note ____ (Constitutional Rights as Principles), at 580.142 See Dieter Grimm, supra note ___ (Proportionality), at 391.

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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

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 context-

based 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

143 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).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). 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 ___.

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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

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.

148 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.”). 149 S. v. Makwanyane, (1995) (3) SALR 391 (CC). 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.

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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 non-

satisfaction, or detriment to, the first principle induced by the action at issue; followed by

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

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.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.

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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

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

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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,

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

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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

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

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).156 The state might have a compelling or an important interest, when even a rational interest would be sufficient. 157 128 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.”). 158 128 S. Ct. at 2852 (Breyer, J., dissenting). Interestingly, intermediary scrutiny is not mentioned in the opinion.

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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

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

159 128 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.”). 160 128 S. Ct. at 2816.161 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).

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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

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

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..

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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

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

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). 166 128 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.”).167 128 S. Ct. at 2861 (Breyer, J., dissenting).

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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

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

168 128 S. Ct. at 2863 (Breyer, J., dissenting).169 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). 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.).

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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

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

173 128 S. Ct. at 2864 (Breyer, J., dissenting). 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)

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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

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

179 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.

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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

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.

180 128 S. Ct. at 2866 (Breyer, J., dissenting)

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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.

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

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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

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

181 Dieter Grimm, supra note ____ (Proportionality), at 396.182 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. 184 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).185 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

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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

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

ed.2005). 186 The heightened protection can lead to categorical protection. 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. 189 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.

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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

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

190 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 71.191 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.”).

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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

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

193 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).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).

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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

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

196 128 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.”).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).

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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

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.

200 S. v. Makwanyane, (1995) (3) SALR 391 (CC), para. 132201 S. v. Makwanyane, (1995) (3) SALR 391 (CC), para. 133.

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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

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

202 More precisely, the “necessity” prong. See S. v. Makwanyane, (1995) (3) SALR 391 (CC), para. 134203 See infra ___. 204 This issue is explored further in Section XX.

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detriment to, or non-satisfaction of, the first [principle].”205 This method depends on a

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

205 Robert Alexy, supra note ___ (Constitutional Rights, Balancing and Rationality), at 136. 206 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.”).207 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. 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”).

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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

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

210 David Beatty, supra note ___ (Ultimate Rule of Law), at 169.211 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). 212 See Shavit v. The Chevra Kadisha of Rishon Le Zion, C.A. 6024/97 (1999) (Supreme Court of Israel) (President Aharon Barak) (“Balancing 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.”).

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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:

“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

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). 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”).217 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”).218 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.”). 219 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

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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

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

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.).220 Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988) (Scalia, J., dissenting) 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). 222 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). 223 Investigating that claim goes beyond the aim of this article. Any such investigation would ask how the proposed framework conceptualizes strategic claims.

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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

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

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). 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 ___.

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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

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

228 See generally Jürgen Habermas and Bernard Schlink, infra note ___. 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.

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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.

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

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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-

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.

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).233 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. 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).

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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

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

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 – 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).244 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).

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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

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?

245 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.”).246 Sen at 137.

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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

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

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. 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.

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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

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.

252 See ROBERT NOZICK, INVARIANCES: THE STRUCTURE OF THE OBJECTIVE WORLD 94 (1991). 253 Jerome Frank is credited with this famous – and infamous – assertion. See generally JEROME FRANK, LAW AND THE MODERN MIND (1930).

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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

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

254 David Beatty, supra note ___ (Ultimate Rule of Law), at 169 (my italics). 255 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). 256 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____. 257 JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS 255 (1996).

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validity must reflect insufficiently nuanced remedies.259 But this solution poses an

insuperable difficulty: on the one hand, courts need additional means (from information-

gathering tools to follow-up systems) to perform this remedial task appropriately, while

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

258 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 “ if 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”.? RONALD DWORKIN, A MATTER OF PRINCIPLE 119-120 (1985).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).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 pre-political; 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).

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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

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,

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).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).

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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

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.

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.

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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

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

269 128 S. Ct. Breyer at 2851-52 (citing US v. Salerno 481 U.S. 793, 755 (1987). 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

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3.2.2. Correctness.

The way that the proportionality test is applied in any given case, based on the four self-

contained 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

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

under both accounts, but only under the former conception does the qualification have any weight. 272 Robert Frost, The Road Not Taken in Selected Early Poems 141 (Thomas Fasano ed., Coyote Canyon Press)(2008).

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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

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.

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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

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

273 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)274 See Jürgen Habermas, supra note ___ (Between Facts and Norms), at __. 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.

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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

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

279 See generally Sujit Choudhry, supra note ___ (So What Is the Real Legacy of Oakes____); Stephen Gardbaum, supra note ___ (Limiting Rights), at__.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 590-591 (arguing that Alexy’s theory of constitutional rights is compatible with the tenets of political liberalism). 281 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.”).

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balancing does not render the process arbitrary. As Justice Breyer writes in Heller, the

“application 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

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.

282 128 S. Ct at 2868 (Breyer, J., dissenting). 283 See 128 S. Ct at 2868 (Breyer, J., dissenting).284 128 S. Ct. 2783, 2847-70 (Breyer, J., dissenting).285 See 128 S. Ct. 2868-70 (Breyer, J., dissenting).

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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

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

286 See generally John Rawls, supra note ___ (Political Liberalism). 287 Mattias Kumm, supra note ___ (Constitutional Rights as Principles), at 595.

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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.

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

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). 289 128 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.”).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.

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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

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

291 128 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.”).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.

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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

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

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). 296 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).297 128 S. Ct. at 2867 (Breyer, J., dissenting).

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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

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

297 128 S. Ct. at 2867 (Breyer, J., dissenting). 298 128 S. Ct. at 2867 (Breyer, J., dissenting).299 128 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).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).302 Charles Tilly, supra note ___ (Why?), at 24-25 (footnotes omitted).

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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

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

303 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.”). 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).

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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

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

306 See Stephen Gardbaum, supra note ___ (Limiting Rights), at 845.

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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.

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.

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. 310 128 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.”).

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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

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

311 128 S. Ct. at 2860 (Breyer, J., dissenting). 312 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.”)313 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)

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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

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

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, 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).

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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

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

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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

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

321 See Kathleen Sullivan, supra note ___ (Post-liberal Judging). 322 See HC91952/SP STF AUG/07/2008, available at http://www.stf.gov.br/portal/processo/verProcessoAndamento.asp?numero=91952&classe=HC&origem=AP&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).

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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.

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