Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach [Hardcover ed.] 0198841396, 9780198841395

Table of contents :
1. Constitutions, Rights, and Judicial Power

I Concepts and Models
II Contracting and Delegation
III Constitutional Change
Overview of the Book

2. Proportionality and Constitutional Governance

I Rights, Justification, Constitutional Legality
II Strategic Considerations
III Constitutional Governance
Conclusion

3. Emergence and Diffusion

I The German Geanology
II The Death of Parliamentary Sovereingty
III Proportionality's Empire
Conclusion

4. All Things in Proportion? The United States

I Roots of Proportionality in the United States
II Pathologies of Tiered Review
III Bringing Proportionality Back In
Conclusion

5. Constitutional Dialogues

I The Legislature
II The Administration
III The Judiciary and the Private Law
Conclusion

6. Global Constitutionalism and Transnational Governance

I Treaty Regimes and Trustee Courts
II Proportionality and Transnational Governance
III The Structure of Global Constitutionalism

Table of Cases
References
Index

Citation preview

Title Pages

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

Title Pages Alec Stone Sweet Jud Mathews

(p.i) Proportionality Balancing and Constitutional Governance (p.ii) (p.iii) Proportionality Balancing and Constitutional Governance (p.iv) Copyright Page

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Title Pages Oxford University Press in the UK and in certain other countries © Alec Stone Sweet and Jud Mathews 2019 The moral rights of the authors have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019932850 ISBN 978–0–19–884139–5 (hbk.) 978–0–19–884140–1 (pbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Acknowledgments

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

(p.v) Acknowledgments Alec Stone Sweet Jud Mathews

The question of whether and how judges should balance conflicting values and interests has dominated my research on law and politics over the past twenty years. My approach to proportionality, in particular, has evolved through intensive discussions with Robert Alexy, Aharon Barak, Carlos Bernal Pulido, Damiano Canale, Moshe Cohen-Eliya, Dieter Grimm, Mattias Kumm, Jud Mathews, Iddo Porat, Giovanni Sartor, Wojciech Sadurski, Po Jen Yap, and Neil Walker. I am deeply grateful to each of them. I have also benefitted from teaching seminars on the topic at the Yale Law School, Bocconi University, and the National University of Singapore; I have, undoubtedly, learned more from my students than they have from me. Carlos Bernal, Laurence Helfer, Emilio Peluso Neder Meyer, and Po Jen Yap identified important rulings that would have otherwise escaped our attention. I am indebted to Dominic Byatt at Oxford University Press, who first suggested the book, and whose support of my research now spans over three decades. Julie Chenot and Cécile Descloux, at the Camargo Foundation in Cassis, France, again provided a place to write, under the best of all possible conditions. And once more, Martha Lewis, an artist who tracks the continuous, but virtuous, failures of human beings to bring a semblance of order to complex systems, made the painting that adorns the cover. Alec Stone Sweet I am fortunate to have been a part of the international community of scholars writing about proportionality for more than a decade now. Several of the figures named in Alec’s list have powerfully influenced my thinking as well; I would like to also thank Iris Canor, Paul Craig, Jamal Greene, Vicki Jackson, David Law, Page 1 of 2

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Acknowledgments Russell Miller, Niels Petersen, Steve Ross, Eberhard Schmidt-Aßmann, and Alec Stone Sweet. A small army of terrific research assistants contributed to this project: thank you to Ylli Dautaj, Koah Doud, Salma Hassan, Neeraj Kumar, Nasim Mokhtari, Celia Karlin O’Sullivan, Martin Souto-Diaz, and Yan Zeng. I am grateful to the Max Planck Institute for Comparative Public Law and International Law, where I spent the summer of 2016, and to my home institution, Penn State Law, for providing congenial and collegial environments for research. Lastly, I want to thank Kim Mowery, for everything. Jud Mathews (p.vi)

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Constitutions, Rights, and Judicial Power

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

Constitutions, Rights, and Judicial Power Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0001

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

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Constitutions, Rights, and Judicial Power constitutional amendment, and legislation—and discusses the importance of trusteeship to each. Keywords:   system of justice, charter of rights, trustee court, constitution, constitutionalism, completeness, effectiveness, constitutional transformation

Prior to 1950, only a handful of high courts in the world had any meaningful experience with constitutional judicial review: the authority of a court to invalidate acts of public authority, including statutes, found to be in conflict with the constitution. The cataclysmic destruction of World War II led to a reconstruction of governance, particularly in Europe, which gradually emerged as the epicenter of a “new constitutionalism”1 featuring rights protection at its core. By the turn of the twenty-first century, the defining features of what Jacob Weinrib simply calls “modern constitutional law”2 had become a global standard: (i) an entrenched, written constitution; (ii) the establishment of democratically elected organs of government bound by a justiciable charter of rights; and (iii) an apex court whose primary duty is to defend the primacy of the charter, and of the constitution more generally. Meanwhile, the world’s most powerful high courts had converged on a common procedure—a doctrinal framework known as proportionality analysis (PA)—to adjudicate rights.3 Today, PA is basic to the rule of law in the modern constitutional state.4 Since the 1970s, the most powerful international courts, too, have embraced PA when they enforce human rights. As a result, scholars now identify the scaffolding of a global, multi-level “constitution,”5 which comprises overlapping international and domestic rights instruments, and a shared commitment to enforcing the principle of proportionality (Chapters 3, 6). These developments have transformed the deep structure of law and politics, raising foundational questions. Why would political rulers, when negotiating a new constitution, empower judges to enforce rights—substantive constraints—on their own lawmaking powers? What would lead them to renounce the majoritarian principle that once held pride of place in liberal democratic theory? If the new constitutionalism requires the demise of (p.2) legislative supremacy, do constitutional judges necessarily become the supreme rulers? Why would states build international regimes that empower an international court to supervise how they govern domestically? Another set of issues concerns the variation one observes across legal systems. How are charters of rights enforced? Why do some systems protect rights more effectively than others? To what extent do the rulings of constitutional courts impact the making of public policy? The global scope and dynamics of these changes also pose intriguing questions. Can one observe the development of “global constitutionalism,” and, if so, what are its core elements? Has the transformation process just begun, or has it reached its limits?

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Constitutions, Rights, and Judicial Power We engage such questions from standpoints that deserve emphasis up front. First, the book develops an account of effective, rights-based constitutional governance. By governance, we mean the mechanisms through which legal norms are produced, adapted, and applied. The central task of modern constitutional law is to regulate legal and political change: how new legal norms are introduced, and existing norms altered or abrogated. The book focuses attention on the structural dynamics of legal change. To achieve their purposes, new constitutions—blueprints for governance—must be implemented. A charter of rights is at most an aspirational text; no charter is born with any degree of effectiveness. Instead, we argue, effectiveness is a construction of constitutional politics. Second, our basic unit of analysis is the “system of constitutional justice” (SCJ): that complex of constitutionally rooted rules, principles, procedures, and practices that govern the protection of rights. We will define the concept of effectiveness shortly. For now, it is enough to note that the “effectiveness” of systems of justice varies across time and place. Third, we direct empirical attention to the policy impact of charters of rights. Rights adjudication, in particular PA-based rights adjudication, helps to organize how legislatures, executives, and judiciaries make, enforce, and change law at a subconstitutional level. In embracing proportionality, we will argue, constitutional judges obtain a powerful managerial tool for supervising how all other officials govern, and for building systemic effectiveness over time. Proportionality evolved in Germany, passing first from eighteenth-century legal philosophy into nineteenth-century administrative law, before becoming an unwritten, judge-made principle of constitutional law in the twentieth century. Today, proportionality is increasingly enshrined in constitutional texts,6 and has been fully constitutionalized across Europe, in parts of Latin America and Asia, and in common law systems as diverse as Canada, South Africa, Israel, and the United Kingdom (Chapter 3). The adoption of PA by the courts of regional, treaty-based rights regimes (including the European and Inter-American Conventions on Human Rights) has also been a key (p.3) factor in its global diffusion (Chapter 6). Presently, PA has no rival as the central procedural component of rights adjudication. Its basic function is to organize a systematic assessment of the justifications that state officials must provide if they wish to limit the scope of a right in a constitutionally permissible way (Chapter 2). Why are rights adjudication and the proportionality principle at the heart of governance in the modern constitutional state? The simple answer is that the two are complementary: (i) the charter of rights is binding on all acts of public authority, including statutes; and (ii) PA furnishes a stable, comprehensive analytical framework for resolving legal challenges concerning the conformity of such acts with rights.

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Constitutions, Rights, and Judicial Power The charter establishes positive requirements of legality.7 But to be effective, rights provisions must be enforceable: they must establish juridical entitlements, possessed by individuals, to challenge acts of public authority as inconsistent with rights. Yet most rights in modern charters—the right to human dignity and to be free from torture being the most important exceptions—are not expressed (or interpreted) in absolute terms. Instead, they are “qualified” by a limitation clause that authorizes officials to restrict the enjoyment of a right for some sufficiently important public purpose. A central mission of any system of constitutional justice, then, is to determine whether public officials have properly exercised their authority under a limitation clause. As Weinrib neatly puts it: “The doctrine of proportionality consists in a set of conditions that [state officials] must satisfy to justify a limitation of a constitutional right.”8. PA, with its distinctive series of tests, is tailor-made for this task, which partly accounts for why constitutional judges have been drawn to it (Chapter 2). Moreover, it is trans-substantive: judges can apply the same basic standard—of proportionality —to all qualified rights. When judges embrace PA, they incorporate into the constitution a presumptive right to justification. PA is triggered once a rights claimant has shown, prima facie, that her liberty under a right has been abridged by an official act. The proportionality principle is enforced through a series of subtests, which we analyze in detail in Chapter 2. At this point, a stylized summary of how a statute is reviewed under PA will suffice. Under the first subtest, the government must show that the legislation under review was enacted in pursuance of a legitimate aim, that is, the law is covered by a proper purpose recognized by the constitution. In a second stage, the court verifies that the means chosen by officials are, in fact, rationally connected to the statute’s purpose: a subtest for “suitability.” If the law is judged to be suitable, the court moves to the “necessity” stage, which is operationalized by a “least restrictive means” test. The key question under this subtest is whether (p.4) the statute abridges a right more than is necessary to achieve the legislature’s declared purpose. If there exist (reasonably available) alternative means that would permit parliament to achieve its aim, while infringing less upon rights holders’ protected interests, then the challenged measure will fail. The fourth subtest— known as “proportionality in the strict sense,” “proportionality stricto sensu,” or simply “balancing”—assesses whether the marginal harm the statute under review imposes on rights holders is “outweighed” by the law’s contributions to the public good, which may include protecting the rights of others. Among other things, the balancing stage permits the court to ensure that a right will not be severely abridged in the service of achieving a relatively slight social benefit. Apex courts that embrace PA do not simply add a doctrinal technique to their methodological toolkit. Once constitutionalized, proportionality is enshrined as a master principle of governance whose authority is no less than that of the constitution, or of the apex court charged with defending the higher law. When Page 4 of 32

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Constitutions, Rights, and Judicial Power rights are in play, all public officials and all organs of governance must respect the proportionality principle in their policy deliberations. PA is a highly intrusive standard of review: once activated, no policy consideration or interest is screened from judicial scrutiny. Whatever deference the court may show state officials will occur within the framework, not imposed on it through an external, formalized abstention or deference doctrine (for instance, “political questions,” “Wednesbury unreasonableness,” “state security”). As empirical research has shown, apex courts that deploy PA consistently and in good faith generate highly structured constitutional “dialogues” that shape how policy is made and the system evolves (Chapter 5).9 In relatively effective systems, the more an apex court uses PA, the more proportionality considerations will govern how officials govern. What the book is not about is also worth noting. We do not argue that global constitutionalism and PA are progressing, through some teleological or functional process, toward a one-size-fits-all monotype. Evidence of institutional and doctrinal convergence is, in fact, of enormous significance. The fact that virtually all new national constitutions establish a system of constitutional justice raises important theoretical and empirical issues, while making broadgauged comparative analysis possible. We fully recognize that every constitutional order evolves against the backdrop of distinct historical, cultural, and politico-legal legacies that are likely to constrain the availability of viable paths of development moving forward. The book, therefore, pays a great deal of attention to the diversity of practice, including how constitutional judges deploy PA. We also dwell on countervailing tendencies, resistance, and “negative cases,” which global convergence makes all the more salient. (p.5) PA is a doctrinal construct, and our focus on legal doctrine may also raise alarm bells. It is fashionable to be suspicious of scholarship that seeks to explain legal outcomes solely through the exegesis of constitutional texts and the formal pronouncements of high courts. Rightly so. Academic lawyers and social scientists have conclusively demonstrated that “extra-legal factors”—economic development, the organization of party and electoral systems, demographic shifts and cultural change, the rise and fall of social movements, and so on— heavily condition the evolution of constitutional law and politics.10 The close attention we pay to the structural features of rights protection is not a covert assertion that only things “legal” or “judicial” matter. Indeed, we will argue that the effectiveness of any system of constitutional justice is largely determined by two meta-variables, which depend heavily on the kinds of factors named above. These are the extent to which: (i) the important questions of the day (economic, social, political, scientific, and so on) are adjudicated by constitutional judges; and (ii) the latter’s rulings influence the decision making of all other public officials. In embracing PA, we will argue, constitutional courts enhance their capacity to build systemic effectiveness in specific ways.

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Constitutions, Rights, and Judicial Power The fact that the constitutional world is diverse, complex, and not well understood poses daunting challenges. Our approach is to concentrate on structural elements that are common to all constitutions, while organizing inquiry into variance across systems. All modern constitutions, for example, share certain formal properties that the analyst must take into account in comparative research. All purport to comprise bodies of higher-order rules that determine how every other sub-constitutional legal norm is to be made and applied; yet the precise content of constitutional meta-rules displays wide crossnational variance. Diverse fields of scholarship can make important contributions, different but complementary, to the study of systems of constitutional justice. Our general strategy is to integrate materials from several fields and perspectives into our inquiry, as sources for key concepts, testable propositions, and real-world data. In particular, we draw on: (i) the legal philosophy related to constitutions; (ii) delegation theory, as adapted to systems of constitutional justice; and (iii) the findings of prior comparative research of an explanatory nature. In addition, the concept of the system of constitutional justice itself, as a distinctive way of understanding the functions a legal regime can perform, generates new insights and hypotheses of its own when employed in comparative analysis. Let us briefly consider each in turn. First, legal philosophers have produced an important literature addressing fundamental questions that cover all constitutional orders. What is a constitution, and what are its major functions? To what extent does a constitution’s (p.6) claim to authority and legitimacy depend upon extraconstitutional factors and forces? In their responses to such questions, scholars routinely generate propositions (proto-explanations or hypotheses) that are directly relevant to comparative research. More broadly, legal scholars have generated the core conceptual vocabulary that we use to describe the institutions and practices of constitutional law, and the relevant differences we see across systems. Second, social scientists use delegation theory to guide research on any governance situation in which a power-holder—the Principal—confers authority on an individual or an organization—the Agent—to help the Principal attain her goals.11 Here, we extend the insights of delegation theory to help account for key features of modern constitutional law and politics. We use it to help explain the turn to constitutional judicial review, to organize discussion of the structural determinants of judicial power, and to derive propositions about effectiveness and systemic change. Third, the existing literature in the field of comparative constitutional law and politics also pushes us to think more generally, in light of empirical findings. Scholars have recently begun to collect and analyze relatively comprehensive data on constitutions,12 modes of judicial review,13 and the content of charters of rights.14 Of particular significance to this book is empirical research on the Page 6 of 32

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Constitutions, Rights, and Judicial Power emergence of new constitutional regimes;15 on the “judicialization” of policymaking in constitutional settings;16 and on the diffusion of constitutional norms and forms across borders,17 including proportionality. In this book, we present and engage with results from this body of work insofar as they are relevant to the questions that our project addresses (Chapters 3 and 5). What is more, the very concept of the system of constitutional justice offers a fresh perspective on the material of comparative constitutional law. Much of the book is devoted to how such systems operate. The book focuses in particular on two important, closely related properties of every SCJ: completeness and effectiveness. A system of justice is complete to the extent that: (i) the charter of rights covers all important aspects of individual dignity, liberty, and autonomy; (ii) stable procedures secure access to justice, permitting individuals to plead rights in the courts against any act of public authority, and enabling judges to provide an adequate remedy when rights are violated; (p.7) (iii) state officials are required to justify any rights-restricting measure under review, with reasons. In a fully complete system, all individuals possess a juridical entitlement, grounded in the constitution, to challenge any act of public authority that would infringe upon their freedoms as expressed in the charter. A system of constitutional justice is effective to the degree that: (i) important disputes concerning rights are actually adjudicated; (ii) an apex court authoritatively resolves these disputes by engaging in independent legal reasoning, and provides constitutional reasons for its rulings; and (iii) all other public officials recognize the interpretive, precedential authority of the court’s jurisprudence (case law), and adapt their decision making to it. No system, of course, is fully complete or effective. We can nonetheless identify key factors that together determine the extent of effectiveness and completeness, and do so below. These streams of materials provide different ways of seeing the most significant features of the constitutional world as they have emerged since the 1950s. Our goal is to build on this scholarship, not to displace or debunk it. Taken together, they allow us to map the terrain, however imperfectly. In this chapter, our emphasis is less on proportionality, and more on the background conditions that have made it the world’s most successful constitutional transplant. Part I defines the components of rights-based constitutionalism. Part II focuses on the functional logics of contracting constitutional rights and delegating review powers to an apex court. Part III explores three pathways to transformative constitutional change within a system of justice: adjudication, constitutional amendment, and legislation.

I Concepts and Models The development of proportionality as a global, best-practice standard of rights protection took place within a much wider process: the gradual consolidation, since 1950, of the basic model of modern constitutional law. In Chapters 2 and 3, we explain why judges are attracted to, and adopted, PA. This part considers the Page 7 of 32

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Constitutions, Rights, and Judicial Power larger context in which these choices were made. We define concepts, examine the components of the modern system of constitutional justice, and discuss the template’s global diffusion. Constitutions and Constitutionalism

Modern constitutions, of course, do more than establish rights-based systems of justice. Among other things, they also establish governmental organs and distribute powers among them, specify procedures for making and enforcing (p. 8) law, stipulate rules for their own amendment, and “constitute” a legal system, in perpetuity.18 H.L.A. Hart famously defined a legal system as “a complex union of primary and secondary rules.”19 Primary rules—which are announced in statutes, ordinances, decrees—impose duties on people, as subjects of the law, and regulate their behavior. Secondary rules both enable and constrain the production of primary rules and, hence, legal change. They “specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”20 In this book, our interest is in constitutionalized secondary rules—those meta norms that govern how all subconstitutional legal norms are to be produced, enforced, and adjudicated.21 Constitutional rights are conspicuously absent from Hart’s idealized legal system, but we can still describe the elements of a system of constitutional justice in terms of categories he devised. In their constitutional form, secondary rules are bundled into an overlapping set of meta-norms that include: • the constitutional provisions that establish the organs of government and their competences, including restrictions on how they may exercise their authority, notably, in the form of rights. These are mostly Power-Conferring Rules. • Rules of Change, which specify procedures for producing statutes and other primary rules, and for amending the constitution. • Rules of Adjudication, which govern the jurisdiction of the courts, including the authority of a supreme or constitutional court to resolve disputes concerning the meaning of the constitution. These meta-norms lay down a blueprint for constitutional governance. Every viable constitution provides a means of authoritatively resolving disputes concerning (i) the legal validity of any sub-constitutional norms in the system, and (ii) conflicts between legal norms (including constitutional norms), or among organs of government. Another set of secondary rules—Criteria of Validity— determine how courts are expected to resolve such disputes, insofar as they give judges guidance as to which legal norms are valid and, therefore, enforceable. Page 8 of 32

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Constitutions, Rights, and Judicial Power These criteria are usually derivable from the other secondary rules: judges must enforce statutes that are made according to the proper procedures, while respecting the charter of rights, for example.22 (p.9) Insofar as these rules delineate the structural properties of any constitutional order, all such orders will be directly comparable. Every system of constitutional justice consists of three formal elements: (i) a written, higher-law constitution; (ii) a justiciable charter of rights; and (iii) a mode of constitutional judicial review. But the content of the charter, and the extent of its integration into the various secondary rules, vary widely. Secondary rules may overlap, and interlock with one another, in complex ways. In particular, when an apex court formally grants proportionality status as a constitutional principle, it alters the secondary rules. Henceforth, a primary purpose of adjudication will be to ensure that state officials do not violate the proportionality principle when they produce new, or apply existing, primary rules. Today, virtually all of the world’s most powerful constitutional courts have, in effect, constitutionalized proportionality, making it a corollary of the charter of rights, and thus a criterion of validity. When it comes to constitutional governance, the rule “all state officials must respect the proportionality principle” will overlap all other important secondary rules. While the concept of a constitution is reasonably straightforward, “constitutionalism” is more contested. We use the term primarily to denote the commitment, on the part of any given political community, to work within the rules established by the constitution. The commitment to respect and to live under a constitution, and the degree to which public officials, political parties, interest groups, and other elites mobilize to undermine or destroy it, varies cross-nationally, and within any polity over time. A second way to conceptualize constitutionalism is as a cultural or ideological construct, directing attention to macro-cultural understandings and social practices rooted in specific constitutional arrangements, such that one can speak of “Canadian” or “Taiwanese” constitutionalism, for example. “Constitutionalism is the set of beliefs associated with constitutional practice,” Neil Walker suggests, embodying the fundamental notions of how “we,” in “our” political system organize the state (federal or unitary), constitute our government (centralization or checks and balances), provide for representation and participation (elections and referenda), protect minorities and fundamental freedoms (rights and judicial review), promote equality (taxation and social welfare regimes), and so on.23 This type of “constitutionalism” will vary in different places, not only in its content, but in its strength and coherence. A robust constitutionalism expresses the self-understanding of a political community—its values, aspirations, and idealized essence24—and provides a wellspring of legitimizing resources for the body politic, helping it to evolve as circumstances change. In contrast, a weak constitutionalism fails (p.10) to Page 9 of 32

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Constitutions, Rights, and Judicial Power represent collective identity, and times of crisis will challenge the legitimacy of the constitutional order. There is a third family of definitions worth noting. Carl Friedrich refers to constitutionalism as “limited government,” a state of affairs wherein the higher law “effectively restrains” those who control the coercive instruments of the state.25 Koen Lenaerts defines constitutionalism as “limited government operating under the rule of law.”26 Michel Rosenfeld notes that “there appears to be no accepted definition of constitutionalism,” but then states that, at a minimum, “modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights.”27 We critically engage this “limited government” formulation throughout the book. Here it is enough to note that constitutions—including charters of rights—do not just constrain the exercise of public authority; they constitute and authorize it. Systems of Constitutional Justice

Modern constitutions establish systems of justice in order to optimize rights protection, replacing constitutional forms that had spread widely in the nineteenth century, including the absolutist28 and parliamentary sovereignty models. Modern constitutions are promulgated in the name of the sovereign People. They establish the lawmaking authority of representative governmental organs, which are tied to the People through elections. They provide for a system of justice. And they are codified and entrenched: explicit rules of change regulate the amendment of the constitutional text, typically through procedures that are more onerous than those in place for changing statutes. The rights-based model has no serious rival today. Data collected on constitutions that have entered into force since 1789 are conclusive in this regard.29 The first codified constitutions appeared only at the end of the eighteenth century, in the United States and France. Today, of the 194 states (p. 11) in the international system, only three do not possess a codified constitution: Israel,30 New Zealand, and the United Kingdom (UK).31 Of existing states, 183 (94 percent) have constitutions containing a charter of rights. In the 1985–2010 period, 114 new constitutions entered into force (not all of which have lasted), and we have reliable information on 106 of these. All 106 new constitutions contained a catalog of rights, and only five failed to establish a judicial mode of rights protection (North Korea, Vietnam, Saudi Arabia, Laos, and Iraq32). For present purposes, the trend that matters most is the demise of the legislative (or parliamentary) sovereignty model. With a polite bow to Britain and France for historical contributions and a nod to an important holdout— Australia33—we can declare the model all but extinct. The legislative sovereignty model is defined by a series of interlocking features. The constitution (whether Page 10 of 32

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Constitutions, Rights, and Judicial Power codified, as in France, or a mix of texts and unwritten conventions, as in Great Britain) provides for regular elections to the parliament. At the heart of the model is a simple chain of legitimation: electorates legitimize legislative authority, and parliamentary majorities legitimize statutes. Once adopted by the legislature, statutes take primacy over any conflicting norm, until changed by a subsequent parliamentary majority. The legislative sovereignty model is defined by secondary rules with three features. First, in contrast to the modern model, the constitution is not entrenched: that is, there are no special, non-legislative procedures for revising it. No parliamentary act can bind a future parliament, and parliament can revise the constitution through a majority vote (a rule of change). To take a dramatic example, by way of an ordinary statute, the British House of Commons abolished the power of the House of Lords to veto legislative proposals in 1911, removing the last important constraint on the Commons’ primacy. The second consequence is that any legal norm that conflicts with parliamentary legislation is itself invalid (a criterion of validity). Judicial rulings are subject to this rule, hence the prohibition of judicial review of statute (a rule of adjudication). In the case of a conflict between two statutory provisions, the one adopted later in time trumps, under the doctrine of implied repeal (a rule of change that determines validity). The third is that the constitution contains no body of substantive constraints on legislative powers. Public liberties, whether granted by the legislature (p.12) through statutes, or the courts through case law, can be rescinded by a legislative act. The French Third (1875–1940) and Fourth (1946– 1958) Republics, and the UK, until recently, are relatively pure examples of legislative sovereignty regimes. Virtually all existing systems of parliamentary sovereignty have been deeply infected by the rise of rights-based constitutionalism. In the so-called “Commonwealth model of judicial review,”34 the legislature can ignore or legislatively set aside supreme court decisions on rights.35 While rejecting proposals to establish a charter of rights with constitutional rank, New Zealand (1990) and the UK (1998) nonetheless adopted human rights statutes, which are recognized as “quasi-constitutional” law in that they are not subject to the doctrine of implied repeal, and they permit judicial review of statutes. Under the 1998 Human Rights Act, UK courts are empowered (i) to interpret statutes (and all other public acts), as far as possible, in conformity with rights found in the European Convention on Human Rights, and (ii) to declare statutory provisions incompatible with rights, when such an interpretation is impossible. Parliament, however, is not required to rescind a statute declared to be rights-incompatible. New Zealand courts, too, are under a duty to interpret statutes in rightsconforming ways, though its Parliament also possesses the authoritative “final word” in the face of a declaration of incompatibility issued by the Supreme Court. In 1982, Canada adopted a Charter of Rights and Freedoms, and gave it full constitutional rank. But the Canadian Charter also permits Parliament to Page 11 of 32

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Constitutions, Rights, and Judicial Power reenact a law found by the Supreme Court to be unconstitutional, for a period of five years, by majority vote. Politicians virtually never use this procedure, due to the perceived political costs of reenacting a law judged to have violated the Charter.36 Australia is now actively debating whether to adopt a statutory bill of rights, as the federated Australian state of Victoria did in 2006. In contrast with the Commonwealth model, modern systems of justice typically establish “structural judicial supremacy,” wherein the apex court holds the authority to invalidate any state act that violates the charter, through rulings that are virtually impossible (whether in law or in fact) to be overturned through constitutional revision.37 (p.13) Rights and Review

In adjudicating charters of rights, constitutional judges routinely develop jurisprudential theories that explain the structure of rights—their content, nature, and scope. Different structural theories produce different approaches to rights adjudication. The structural properties of rights provisions vary along a number of dimensions. The first concerns the distinction between (i) “absolute” and (ii) qualified rights. When rights are expressed (or interpreted) in absolute terms, any act of public authority that infringes upon the right is unconstitutional. A court that would enforce the right to free expression in absolute terms, for example, must determine what types of speech are covered by the right, and which are not. If the case involves speech that is covered, the rights-claimant will prevail, and if the speech is not covered, the claimant will lose. This “categorical” approach to rights38 has at times been used by the U.S. Supreme Court to enforce the First Amendment (which declares in categorical terms that “Congress shall make no law … abridging the freedom of speech”). But a right may also be conceived in relative terms, as a principle (or value) to be balanced against other values of the same constitutional rank, including against the state’s duties to protect the rights of others, and to make and enforce law in the public interest. In modern constitutional law, only a tiny handful of rights—such as a right to one’s human dignity and the prohibition of official torture—are typically expressed in absolute terms. The others are “qualified” by limitation clauses that expressly authorize lawmakers to curtail enjoyment of the right for some sufficiently important public reason. As we stress in Chapter 2, PA is tailor-made for adjudicating qualified rights. A second dimension of variation concerns the nature of the obligation imposed on public authority. A right may establish what the state may not do, either under any circumstances (an absolute, or categorical, version of rights), or unless the state meets a special burden of justification (a qualified conception of rights). Most modern charters also address what the state must do, in order to facilitate the enjoyment of rights; and many also entitle citizens to certain benefits, such as adequate public health care and education, employment, and housing.39 One classic typology thus categorizes rights as negative or positive: Page 12 of 32

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Constitutions, Rights, and Judicial Power the former stop government from doing certain things, and the latter requires government to act to accomplish certain goals, especially when failure to act will lead to a denial of rights protection. Older constitutions rarely contain positive rights; newer constitutions almost always do. Constitutional judicial review also varies, with two models dominating.40 The archetype of the “decentralized” model is American-style “judicial review,” (p. 14) which is performed by the judiciary in the context of litigation. The second —the “centralized” or “European” model—grants review powers to a special organ—a constitutional court—while the ordinary (that is, non-constitutional) courts are denied the authority to invalidate statutes. The underlying rationales for each model reflect opposed separation of powers doctrines. Separation of powers doctrines express idealized notions of how the organs of government should function and interact with one another, given a particular constitutional text, history, and culture. Simplifying, under the precepts of the first model, the judiciary is understood to be a separate but coequal branch of government, within a system of “checks and balances.” The duty of American courts, their circumscribed function, is to resolve legal “cases or controversies” in a small set of defined categories, one of which is those that arise under “the laws of the United States.”41 The Constitution is one of “the laws.” If litigants can plead the constitutional law before the courts, then judges will need the power of judicial review in order to resolve the constitutional controversies that come before them. Such is the logic of Marbury v. Madison (1803), the U.S. Supreme Court decision that asserted the Court’s own constitutional review authority.42 Review powers are held by the judiciary as a whole. Giving review powers to all courts is no longer as popular as concentrating review authority in a specialized constitutional court.43 The centralized model first developed in Europe, where the judicial review of statutes was traditionally prohibited, and where separation of powers doctrines strongly distinguished the “political function” (to legislate) from the “judicial function” (to resolve legal disputes by applying statutes). From the perspective of the centralized model, American-style judicial review appears to create a “confusion of powers,” since it permits the judiciary to participate in the work of the legislature. The centralized model avoids the problem by vesting the constitutional review power in a unique institution, one that would never be confused with an ordinary court. Considered as an ideal type,44 we can break down the centralized model into four constituent components, which we contrast with its decentralized alternative. First, constitutional courts enjoy exclusive constitutional jurisdiction. Constitutional judges alone may invalidate a statute as unconstitutional, while all other courts remain formally prohibited from doing so. In the United States, review authority inheres in judicial power, and thus all Page 13 of 32

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Constitutions, Rights, and Judicial Power judges possess it. Second, constitutional courts settle constitutional disputes. In contrast, the (p.15) jurisdiction of the U.S. Supreme Court reaches both constitutional and non-constitutional disputes. Constitutional courts do not preside over ordinary litigation, which remains the function of the ordinary courts. Instead, their central task is to give authoritative answers to the constitutional questions that are referred to them. Third, constitutional courts are connected to, but detached from, the judiciary and legislature. They typically occupy their own “constitutional” space, which is neither clearly “judicial” nor “political” in traditional separation of powers terms. Fourth, some constitutional courts are empowered to review legislation before it has been enforced, that is, before it has actually affected any person negatively, as a means of eliminating unconstitutional norms before they can do harm. Thus, in the centralized model of review, the judges that staff the ordinary courts directly enforce statutes (and other sub-constitutional legal norms), while constitutional judges directly enforce the constitution.45 The two models of review also differ with respect to the pathways through which cases come to the judges. In the United States, litigants activate rights review when they plead a right before a judge—any judge. In countries with constitutional courts, there are three main procedures for initiating review. The first is abstract review: the review of statutes prior to their enforcement. Abstract review is also called “preventive review,” since its serves to filter out unconstitutional laws before they can harm anyone. It is typically politically initiated: executives, parliamentary minorities, and regions or federated entities in federal states may refer laws to the court. The second mode is concrete review, which arises in the course of litigation in the courts. Ordinary judges initiate it by sending a constitutional question to the constitutional court: is a given legal norm (statute, judicial decision, administrative act, and so on) constitutional? The general rule is that a presiding judge will refer such questions if two conditions are met: (i) that the answer to the question will determine who wins or loses in the dispute at hand; and (ii) there is reasonable doubt in the judge’s mind about the constitutionality of the applicable act or rule. Referrals suspend proceedings pending a review by the constitutional court. Once rendered, the constitutional court’s judgment is sent back to the referring judge, who then decides the case on the basis of the ruling. Ordinary judges are not permitted to determine the constitutionality of statutes on their own; rather, they help to identify potentially unconstitutional laws, and then send them to the constitutional court for review. The third procedure—the constitutional complaint—goes by a variety of designations, including the amparo in Spain and throughout Latin America.46 It brings individuals into the mix. Individuals are authorized to appeal directly to the constitutional (p.16) court when they believe that their rights have been violated.47 Some systems also create a rights ombudsman with independent powers to bring cases to the court. A system that provides for abstract review, concrete review, the individual Page 14 of 32

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Constitutions, Rights, and Judicial Power complaint, and an ombudsman is more “complete” than a system that provides only for case-or-controversy review. Diffusion

Since the 1980s, virtually every act of constitution-making following the demise of authoritarian regimes, or the end of civil war, has resulted in the construction of a system of constitutional justice. Authoritarian regimes exist and persist, but when they fall, the founders of new constitutions almost always embrace the dominant model. Why virtually all new constitutions written since 1985 establish rights and review is something of a mystery, though three factors are of particular importance. First, new constitutions hail new beginnings. In the context of democratization, the turn toward rights-based constitutionalism signals a decisive break with the past. The collapse of what Kim Lane Scheppele has called “regimes of horror,”48 in which state officials had routinely committed the most heinous crimes against citizens, is the paradigmatic situation. Such regimes generate a massive social demand for rights and review, while their demise provides the founders of new constitutions with a discredited legacy to demonize. In such contexts, few see a contradiction between democracy and rights protection, at least at the beginning. On the contrary, founders and citizens typically view robust rights protection as essential to any successful transition to constitutional democracy. Second, the framers of new constitutions copy forms perceived to be successful. Institutional sociologists and others have documented the process through which best-practice standards emerge, congeal as templates, and diffuse globally.49 Constitutional forms diffuse in similar ways, through “band-wagon effects” that are easily tracked.50 The German experience, for example, not only directly influenced those who designed new constitutions across Europe, but also in Colombia, South Korea, South Africa, and Taiwan. The last constitution to leave out a charter of rights was the racist 1983 South African constitution, hardly a model to emulate. Similar dynamics supported the spread of proportionality (Chapters 3 and 6). A third factor concerns the coercive effects of the international environment. Over the past thirty years, the international organizations that (p.17) govern the global economy have heavily promoted constitutional reform, emphasizing rule of law as key to peace and development, and rights protection as key to rule of law. The International Monetary Fund, the World Bank, and other development organizations partly conditioned development aid and other resources on congruence with international standards. In the 1990s, following the collapse of communism in Europe, the EU and the Council of Europe (the centerpiece of which is the European Convention on Human Rights) required that framers of new constitutions provide for constitutional justice as a prerequisite for membership and support programs. Authoritarian states, too, Page 15 of 32

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Constitutions, Rights, and Judicial Power sometimes embraced rights and review on their own, as a means of signaling to the international community their commitment to reform (whether sincere or not).51 The factors favoring structural convergence are embedded in a larger ideological project. Modern constitutional law is a construction of liberal ideology, the domain of which has steadily expanded since 1789. Today, one finds relatively effective systems of constitutional justice on every continent.

II Contracting and Delegation Understanding the rise of modern constitutionalism also requires attention to the strategic logics that underlie decisions by political elites to build new systems of justice. Here, we focus on functional needs of those who negotiate new charters of rights, and delegate to constitutional judges. In a nutshell, a commitment to judicial review follows from a commitment to rights, since rights generate fierce commitment problems that constitutional courts can resolve, at least on paper. Moreover, the more any polity seeks to achieve an effective system of justice, the more authority it will need to delegate to an apex court. The key institutional design question is, what types of arrangements will maximize the chances of building systemic effectiveness over time? In response, we develop a simple theory of trusteeship, focusing on the authority of constitutional judges to manage the system as it evolves. Contracting and Delegation

A first order puzzle concerns why elites would find it in their interest to establish rights and review. Scholars largely agree on the basics of a solution to this puzzle; at the same time, they recognize that explaining any (p.18) particular case will require close attention to facts (historical, socio-economic, politicolegal, and so on) that are specific to that national system. The general account stresses the importance of a competitive party system, and the common interest of each party to constrain its opponents when out of power. Put simply: when two or more major parties (i) know that they will compete with one another in elections for power, and (ii) believe that they could lose to one of their opponents, then (iii) each will have an interest in investing in constitutional arrangements that will constrain the victors after their opponents lose an election. Although virtually all modern constitutions proclaim that sovereignty rests with the People, constitutions are typically drafted by different groups of elites in the course of complex negotiations. In such contexts, two overlapping logics broadly explain why these groups choose to delegate control powers to constitutional judges. The first, the so-called “insurance model of judicial review,” directs analytical attention to the degree to which political authority is centralized or fragmented.52 In systems dominated by one person or one political party, rulers will have little incentive to share their power with courts. In contrast, where a Page 16 of 32

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Constitutions, Rights, and Judicial Power competitive party system exists or can be foreseen by the founders, each party will see the benefits of protecting its interests when out of power, and constraining officials through judicial review is a means of doing so. A second, related logic—one of “incomplete contracting”—focuses on rights as a specific form of insurance.53 Constitutions are conceived as contracts between political elites who jointly negotiate the legal framework under which they will govern. In the most common situation, these elites—members of political parties and groups claiming to represent the broader citizenry—negotiate the terms of the new constitution as a “constituent assembly,” whose task is to produce a draft text to be submitted to the People for ratification in a referendum. In establishing a democracy, each contracting party knows that it will compete with the others for office, through elections. At the same time, each wants to constrain opponents when they are in power, in part, through rights and review. The resulting constitution thus creates two public goods: (i) a set of enabling governmental institutions, tied to elections, and (ii) a set of constraints, tied to rights. We conceptualize modern constitutions as incomplete contracts.54 All contracts are “incomplete” to the extent that meaningful uncertainty exists as to the precise nature of their terms. Given the impossibility of negotiating specific rules for all possible contingencies, and given that, as time passes, conditions will change and interests will evolve, most agreements of any complexity are produced through what organizational economists call (p.19) “relational contracting.” In this mode, the parties to an agreement seek to broadly “frame” their relationship, by agreeing on a set of common goals, stipulating outer limits on acceptable behavior, and establishing procedures for “completing” the contract as future circumstances warrant.55 Modern charters of rights are paradigmatic examples of relational contracting.56 Relational contracting, of course, generates a commitment problem, which is typically resolved through third-party dispute resolution and enforcement. Contracting rights57 goes hand-in-hand with establishing judicial authority. Take the following scenario, which is a simplified version of what has occurred in many places since 1945. Once the constituent assembly decides to include a charter of rights,58 it faces two tough problems. First, rights disagreements threaten to paralyze the drafting process. Left-wing parties push for positive rights and limits on the rights to property, while rejecting a narrow conception of the classic negative rights. The right-wing parties want stronger protection for property rights, and see rights primarily as a means of limiting, not enabling, government. The two sides compromise, drafting a charter that (i) lists most of the rights that each side wants, (ii) qualifies most rights with a limitation clause, and (iii) is vague about how any future conflict between two rights, or a right and an important governmental purpose, will be resolved. The second problem is making the commitment to protecting rights credible. The solution is delegating Page 17 of 32

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Constitutions, Rights, and Judicial Power enforcement powers to a constitutional court. Delegating allows the assembly to avoid bargaining stalemates, while creating a mechanism for enforcing and “completing” rights incrementally, on a case-by-case basis, when the constitution enters into force. Agents and Trustees

The more acute are problems of imperfect commitment, delegation theorists assume, the more discretionary authority the framers must delegate to the (p. 20) reviewing court, if governance arrangements are to achieve their purposes. Relational contracting may help a divided constituent assembly reach agreement on rights ex ante, qualified rights being incomplete norms by design. But if rights are to be enforced as positive requirements of legality—that is, as criteria of validity for all other official acts—then the court must have the discretion to determine the content and scope of rights, ex post. The commitment problem will persist, however, if state officials can easily nullify the effects of the court’s rulings through constitutional amendment. In modern systems, entrenchment is therefore crucial, serving to insulate the court’s rulings from override by officials whose acts the court controls. Contrast a constitutional court’s role in the modern system of justice with that of the judiciary in the classic legislative sovereignty regime. One can conceptualize the latter as a simple “Principal-Agent” model, where the courts act as agents of the sovereign parliament, which is itself an agent of the electorate. Notably, even on this framing, judicial rulings will enjoy a measure of insulation from political override. A major task of the judiciary is to enforce parliament’s statutes, while review of their lawfulness is prohibited. To the extent that statutes are incomplete, judges will need interpretive powers. But since interpretation and application are themselves forms of lawmaking, the question of “agency costs” inevitably arises. As an empirical matter, we know that the more any statute is litigated, the more likely the courts will determine what the law means, in practice. Yet even in the face of extensive judicial lawmaking, the principal remains in charge. Members of parliament are always free to overturn judicial rulings through legislating a new statute. Thus, insofar as the legislator can identify judicial “errors,” it can correct them, since the decision rule governing override—a majority vote of parliament—enables its control. The rules governing judicial override are a crucial factor in this type of analysis, but they are not the whole story. A parliament that is unable to muster a majority vote to overturn any particular judicial decision remains sovereign, as a formal matter, but its actual capacity to control the courts is, on that point of law at that point in time, nil.59 In modern systems of justice, the apex court is not a simple agent of any permanently sitting organ, such as a parliament.60 Instead, it exercises authority in the name of a fictitious, but symbolically important, entity: the sovereign People. The more appropriate concept for this context is trusteeship.61 Through Page 18 of 32

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Constitutions, Rights, and Judicial Power legislating a rights-based constitution, the People have: (i) placed their freedom —in the form of a charter of rights—in trust; and (ii) conferred (p.21) review powers—the relevant “political property rights”—on the court to manage this trust. The court can only perform this mission effectively if it possesses the authority to invalidate public acts that violate rights, and if its decisions are insulated from easy override on the part of officials whose decisions it controls.62 In such a situation—one of structural judicial supremacy—members of parliament, executives, and all other state officials are agents of the People, subject to the decisions of the trustee court.63 The trustee court, a kind of “super-agent” of the People, acts as the regime’s caretaker, and is itself subject to duties of appropriate stewardship. Trust law’s emphasis on the fiduciary obligations of trustees also informs our approach. Because both citizens and officials are vulnerable to the trustee court’s judgments, its supremacy is tempered by a set of robust fiduciary duties. As applied to courts, the most important of these duties are (i) loyalty, (ii) accountability, and (iii) deliberative engagement. As Ethan Leib, David Ponet, and Michael Serota argue,64 loyalty refers to the judge’s duty to act in ways that will maximize the purposes of the trust: to protect rights in the present instance. The duty of accountability requires the trustee court to justify its rulings with reasons. And the obligation of deliberative engagement requires the court “to engage in dialogue” with those who are vulnerable: rights claimants and officials. This obligation requires “an authentic effort to uncover preferences rather than a mere hypothetical projection of what beneficiaries might want.”65 As we will argue throughout the book, a court that deploys proportionality analysis in good faith will perform its fiduciary duties while maximizing its capacity to enhance the system’s overall effectiveness. It is worth highlighting something implicit in the discussion above, namely, that the move to trustee courts is sustained by both strategic and normative logics, both for the elites who construct constitutions and the judges who interpret them. From the strategic perspective of the elites negotiating the terms of a democratic transition, rights can serve an insurance function only if the court interpreting them owes its allegiance to the system as a whole. This conception of the apex court as “guardian of the constitution” (to borrow the term used in Germany) is equally consonant with the normative constitutional theory that underwrites the modern system of constitutional justice. Similarly, from the perspective of constitutional judges, the applicable strategic and normative logics also point in the same direction. If the court does not act as a guardian in good faith, it will neither be able to “complete” the founders’ incomplete contract nor to render the system of justice more effective. (p.22) Looking forward, insofar as trusteeship in fact imposes fiduciary duties on constitutional courts, those courts will have strategic incentives to take those duties seriously, and proportionality can help them to do so (Chapter 2).

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Constitutions, Rights, and Judicial Power Trusteeship and Effectiveness

Three factors condition the development of the effectiveness (as defined above) of any system of constitutional justice. First, the apex court must have a caseload,66 without which it could acquire no influence over the system’s evolution. Second, once activated, the judges must resolve rights disputes while giving defensible reasons for their decisions. If they do, they will produce a jurisprudence: a case law that records how they have interpreted and applied the charter of rights. Third, a stable conception of precedent must develop within the system. All other state officials, and all potential litigants (the citizenry), must generally accept the court’s jurisprudence as authoritative, and refer to it in future episodes of adjudication and application. The second and third conditions will not be met if the court produces arbitrary, unprincipled, and inconsistent rulings. Downstream, what will matter is the degree to which all other government officials adapt their decision making to the court’s jurisprudence, as it evolves. If a system of justice is to gain in effectiveness, officials must consider such intrusions to be, often enough, a reasonable tax to pay for rights protection, and they must be willing to reinvest in the system as it evolves. These are the necessary and sufficient conditions for the development of effectiveness. Trustee courts that manage relatively complete systems of justice, as completeness is defined above, possess the formal powers necessary to manage the system. Other things equal, trustee courts that faithfully execute their fiduciary obligations will maximize capacity to build systemic effectiveness. But calling a court a trustee, and listing its powers and duties, will not tell us how any given apex court will actually govern, what kind of case law it will construct, or how political elites will react to important rulings. Answering these questions for specific systems would require a detailed empirical analysis of each. It is a brute fact that most systems of rights protection throughout world history have been largely ineffective, as irrelevant to politics as the constitutions that created them. Ruling elites may seek to settle their disputes by force, rather than through the courts, with fatal consequences for the regime. They may privilege remaining in power, enriching themselves, rewarding their friends and punishing their foes, achieving ethnic dominance, and so on, rather than working to strengthen constitutional justice. High court judges, (p.23) too, may show no little or no interest in building effectiveness if doing so means confrontation with illiberal rulers. Negative cases, therefore, command our attention.67 Why only some countries are able to achieve a meaningful degree of effectiveness is a controversial question. We know that constitutional democracy is difficult to create and sustain. A competitive party system, regular elections, a commitment to rule of law and judicial independence, and a system of advanced legal education and advocacy training are all factors that can help to determine Page 20 of 32

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Constitutions, Rights, and Judicial Power the fate of a new constitutional regime. At the same time, each of these variables is typically associated with others, including economic development, ethnic diversity, attributes of political culture (which may be illiberal and fragmented), and colonial legacies. In new rights-based orders, it is the primary mission of the trustee court to help construct rights-based constitutionalism. But there are limits to what even doggedly determined judges can accomplish if continuously opposed by political elites. In situations where elected officials seek to weaken or destroy a system of justice, degrees of constitutional entrenchment matter a great deal. A case in point is the recent experience of Hungary. Beginning in the mid-1990s, the Hungarian court made itself one of the most powerful and effective constitutional courts in Central and Eastern Europe, indeed, in the world. In 2011, however, a coalition government led by Prime Minister Viktor Orban obtained more than the two-thirds of the seats necessary to amend the constitution. In direct response to a series of Constitutional Court rulings, the coalition moved to override the Court through amending the constitution, as well as to strip it—and the judiciary more generally—of some of its most important powers.68 In 2015, a new political majority in Poland initiated a similar process of curbing the Court, albeit without formally revising the constitution.69 Thus, in constitutional regimes that locate the amending authority in the parliament, a court’s capacity to build systemic effectiveness—or the extent of constitutional “backsliding”70—may critically depend upon election results. Despite these real and potential obstacles, rights and review have been crucial to virtually all successful transitions from authoritarian regimes to constitutional democracy since World War II.71 Indeed, it appears that the more successful any transition has been, the more likely one is to find a trustee court working to build systemic effectiveness. In such situations, (p.24) constitutional adjudication can smooth transitions to constitutional democracy,72 providing: (i) for peaceful dispute resolution between parties and groups who may mistrust one another, especially after episodes of intense civil conflict; (ii) a mechanism for purging the laws of authoritarian elements, while a new legislature may be overloaded; and (iii) an arena in which citizens directly participate in constitutional governance, through bringing rights claims. As important, the court’s rulings can furnish focal points for the consolidation of a new model of state legitimacy, one based on respect for democratic values and rights, and on the rejection of fascism, military or one-party rule, the cult of personality, and so on. Where trustee courts succeed in building the effectiveness of systems of justice, they enhance the legitimacy of the constitutional order more generally.

III Constitutional Change A constitution is a formal instrument of delegated governance, a major function of which is to organize legal change. If and how the secondary rules themselves should be adapted, however, is a deep and controversial question. This section Page 21 of 32

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Constitutions, Rights, and Judicial Power focuses on change in its most radical, indeed quasi-revolutionary, form: that of constitutional transformation. We define the concept narrowly, as the process through which the “deep structure” of existing secondary rules are authoritatively altered. Our focus is on the inherent capacity of trustee courts to induce transformation in the service of building systemic effectiveness. Least surprising, probably, is trustee courts’ capacity to transform constitutions through adjudication. But a number of trustee courts have also effected constitutional transformations by authoritatively setting the terms for the other two modes of constitutional change: formal amendment, and legislation. Adjudication

How rights adjudication generates constitutional change, with what effects on law and politics, is a central topic of this book. A basic task of a trustee court is to render rights protections more complete. The more effective the system, the more the court’s lawmaking will be recorded in an evolutionary case law that will be difficult to dislodge. There are multiple ways of conceptualizing adjudication’s role in “normal” incremental change. From a game-theoretic (p. 25) standpoint, a trustee court occupies a crucial strategic position in a twolevel, or “nested,” game. In any important case involving the charter, both parties seek (i) to prevail in the discrete policy conflict at bar (the first level), and (ii) to persuade the court to construct the charter in ways that will favor them in future disputes (the second level). A “dispute resolution” game is thus nested within a “constitutional lawmaking” game, insofar as the outcome of the policy dispute depends on how the judges interpret and apply the charter.73 In resolving disputes, powerful trustee courts routinely make policy and extend the constitution’s reach simultaneously (Chapter 5). Obvious examples are the constitutional politics of abortion, hate speech, and non-discrimination, but the strategic context just described is generic to rights adjudication. Courts may also self-consciously use their powers of constitutional lawmaking to enhance systemic effectiveness. They can: progressively develop the scope of rights provisions; relax standing requirements; close gaps in protection as they emerge; adopt intrusive standards of review to replace deferential rationality or “unreasonableness” tests; and evolve new remedies. When it comes to deep transformation of the secondary rules, trustee courts possess the capacity to expand their own authority in a formal way, by conferring on themselves new powers. The capacity is inherent insofar as trustees possess the competence to determine the terms of their own jurisdiction. When they embrace the proportionality framework, for example, they require all other state officials to respect the proportionality principle as a criterion of constitutional validity. One finds such rulings in virtually every system that has gained effectiveness over time.

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Constitutions, Rights, and Judicial Power A clear illustration of a deep transformation through adjudication is provided by France. In the 1970s, the Constitutional Council incorporated into the Fifth Republic’s Constitution (1958) an enforceable charter of rights, where no charter previously existed—by design.74 These rulings unleashed a process that would destroy legislative sovereignty and the prohibition of judicial review, dogmas firmly in place since the revolution of 1789. The Council conferred on itself the authority to enforce a charter against parliamentary acts, thereby placing Parliament under a duty to respect the charter when it made law. The resulting transformation of the secondary rules is routinely called a “revolution” in France.75 There is a common sequence to such cases.76 A court asserts authority that is not derivable from existing constitutional law and practice, but rather radically reconstructs the foundations of both. The success of the revolution will then depend on whether legal and political elites accede to the new secondary rules, and their doing so both legitimizes and consolidates the move. In France, we have a detailed (p.26) empirical record of how the consolidation process unfolded, with what transformative effects.77 Amendment

Modern constitutional law is entrenched: explicit rules of change govern the revision of the constitutional text. The more onerous the procedures for amendment, of course, the more one can expect adjudication, rather than amendment, to be the usual mechanism of “normal” constitutional change. Some constitutions lay down a single set of amendment rules, applying to virtually all provisions (e.g., the United States). Others confer special status on the “most fundamental” of constitutional norms by entrenching them more than other provisions. Thus, many modern constitutions make it more difficult to revise rights provisions than the rest of the constitution (Spain), and some make it impossible to revise core elements (Germany). In contrast, the Hungarian constitution, as noted above, is only weakly entrenched, in that a two-thirds vote of Parliament suffices to change the constitution and, therefore, to override the court. As a formal matter, an amendment that implements or overrides the trustee’s constitutional lawmaking is an instance of “normal” change, in so far as it takes place according to existing secondary rules. A trustee court can expand its own competences, by making amendment procedures more onerous. Here again, we encounter the interdependence of secondary rules. Consider a situation in which the constitution’s text lays down no substantive restrictions on constitutional amendment. As representatives of the sovereign People, those authorized to revise the constitution—the so-called “constituent power”—may do so as they see fit. A transformation occurs when a court writes into the constitution substantive constraints on the exercise of constituent power, and confers upon itself the authority to enforce these constraints. The court declares, in effect, that constitutional amendments may not violate the

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Constitutions, Rights, and Judicial Power fundamental constitutional values that the People have placed in trust, to be protected by the court. India provides a well-known example. Article 368 of the Constitution (1950) grants Parliament unconstrained authority to amend the text upon a two-thirds vote and, for certain provisions including those concerning federal arrangements, at least one-half of the federated states. The Indian Supreme Court’s initial position was that Parliament exercises legislative power when it adopts statutes, but constituent power when it amends the Constitution. In Golak Nath (1967), the Court reversed itself, holding that Article 13—which states that parliamentary laws must conform to fundamental rights—covered not just statutes but constitutional amendments. The Court also announced (p.27) that rights occupied a “transcendental” position within the Constitution itself. In 1971, Parliament moved to override the Court, adding this clause to Article 368: “nothing in Article 13 shall apply to any amendment made under this Article.” In response, in Kesavananda Bharati (1973), the Court announced the “basic structure” doctrine, which prohibits altering other features including separation of powers, parliamentary democracy, secularism, and federalism. Again, legislators reacted (1976), this time rescinding the Court’s authority to review amendments.78 But the Court held its ground, invalidating amendments in subsequent rulings on the basis of the basic structure doctrine. After a proposal to grant Parliament the authority to challenge elements of the doctrine lapsed, judges, elected officials, and legal scholars gradually consolidated the transformation. Over the past two decades, the Indian debate has focused not on the existence of the basic structure, but its content.79 Around the globe, an increasing number of apex courts have adopted a version of the “basic structure doctrine,” thereby enhancing their own status as trustees of the constitutional order.80 Legislation

Modern constitutions establish separate procedures for legislating and amending the constitution, respectively. Yet given the interdependence of processes of constitutional construction and policymaking, the trustee court may well “constitutionalize” legislative acts as a means of enhancing effectiveness. Let’s return again to the French transformation of the 1970s. In the leading decision, Freedom of Association (1971),81 the Constitutional Council asserted that the Constitution included a justiciable charter, comprising two historic texts,82 and a body of un-enumerated rights, which it christened the “Fundamental Principles Recognized by the Laws of the Republic.” In its ruling, the Council annulled a parliamentary statute that would have given officials the power to withhold recognition of civic associations formed for “immoral or illicit purposes.” The Council based its decision on the same law that Parliament had failed to revise, a 1901 statute adopted under the Third Republic. In doing so, it Page 24 of 32

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Constitutions, Rights, and Judicial Power forcefully repudiated legislative sovereignty, elevating a principle (p.28) found in a prior legislative act to constitutional rank: freedom of association. Since 1971, the Council has expanded the corpus of the Fundamental Principles numerous times, but only after referencing the statute in which a given principle is grounded. These moves constitutionalize the statute in question; and Parliament loses the power to reduce the scope of protection, while retaining the authority to enhance it. The construction of a system of justice in Israel furnishes another dramatic example (Chapter 3). In the beginning, the new state of Israel (1948) adopted a relatively pure legislative sovereignty regime, pending the ratification of a fully codified constitution that, in fact, was never drafted. Nonetheless, beginning in the 1960s, the Supreme Court began to protect rights, relying heavily on general principles that it found in international law and the jurisprudence of foreign courts. In 1992, the Knesset (the legislature) adopted two rights-oriented statutes, the more important of which was the Basic Law: Human Dignity and Liberty. These statutes neither established their own hierarchical superiority relative to other parliamentary legislation, nor provided for their judicial enforcement. In 1995, the Supreme Court announced that it possessed the power to set aside statutes that violated the rights found in the Basic Laws; and, over the next decade, it began to treat these laws as a justiciable charter of rights binding on the Knesset. As in France, the result of these moves is commonly referred to as a “constitutional revolution.”83 At the same time, the process of consolidation was not pre-ordained, not least, since the Knesset possesses the authority to rescind or replace these laws. In the United States, the notion that a legislative act may, on its own, express the content of constitutional law has intrigued scholars. William Eskridge and John Ferejohn have argued that certain laws—“super-statutes”—deserve to be analyzed as part of the constitutional law, in that they perform “constitutional” functions.84 Bruce Ackerman agrees,85 arguing that the “civil rights revolution” ultimately produced two super-statutes—the Civil Rights Act (1964) and the Voting Rights Act (1965)—that comprise part of U.S. constitutional law, properly understood. American scholars will no doubt debate the complexities of these claims for years to come. For present purposes, it is important to note a formal weakness in Ackerman’s argument: namely, that these acts remain legislative. In France, a statute expresses a right only once the Council states as much, that is, once it formally integrates the main terms of the statute into the charter of rights. In Israel, the Supreme Court made it clear that it, too, was constructing a system of justice by constitutionalizing rights-oriented statutes. In 1963, Ackerman reports, the U.S. Supreme Court was on the verge of overruling the state action doctrine, rooted in the notorious Civil Rights Cases (1883), which limited the reach of (p.29) constitutional rights under the Fourteenth Amendment.86 But the Court balked once it appeared that Congress was prepared to move on the legislative front to broaden equality protections.87 The Page 25 of 32

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Constitutions, Rights, and Judicial Power key question, for those who agree with Ackerman, is the following: do the Fourteenth and Fifteenth Amendments bar Congress from reducing the protections provided by these super-statutes, through a legislative act? Could these protections, in other words, only be reduced through a constitutional revision, or upon approval (in constitutional terms) by the Court?88 We explore the relationship between rights adjudication and legislation further in Chapter 5.

Overview of the Book In this chapter, we have argued that justiciable charters of rights and trustee courts are the central components of modern systems of constitutional law and governance. The rest of the book focuses on the questions of why, how, and to what effect, high courts use proportionality to protect rights and to organize legal change. We proceed as follows. Chapter 2 provides a detailed presentation of PA, with its distinctive series of subtests. We describe the major functions of the framework, explain why constitutional judges find it attractive, and survey alternative approaches, including those critical of our own. Chapter 3 traces proportionality’s global diffusion, and maps variation in how apex courts have enforced it. In Chapter 4, we analyze the evolution of rights doctrine in the United States, and assess critically an alleged “American exceptionalism” with respect to balancing. Chapter 5 explores the various ways in which proportionality, once consolidated as a general principle of governance, can serve as a discursive interface between organs and branches of government. This interface, we argue, grounds the constitutional and policy dialogues through which systems of constitutional justice are rendered more effective. In Chapter 6, we explore the use of PA by the most important international human rights courts, and consider its place in an emergent, multi-level, and pluralist constitutional order. Notes:

(1) Shapiro and Stone, eds. (1994); Roesler (2007). (2) Weinrib (2016). (3) Barak (2012a: ch. 7); Stone Sweet and Mathews (2008); Mathews and Stone Sweet (2011). (4) Barak (2012a); Klatt and Meister (2012); Kumm (2010); Weinrib (2014). (5) Gardbaum (2007); Kumm (2009); Petersmann (2008); Stone Sweet (2009; 2013). For broader arguments, see De Wet (2012) and Klabbers, Peters, Ulfstein (2009). (6) Stone Sweet and Mathews (2008).

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Constitutions, Rights, and Judicial Power (7) For an extended discussion, see Stone Sweet and Palmer (2017);Weinrib (2016: ch. 5). (8) Weinrib (2016: 215). (9) Stone Sweet (2000, 2002); Hogg, Thornton, and Wright (2007); Stone Sweet and Ryan (2018: chs. 3, 5). (10) Shapiro and Stone Sweet (2002). (11) For an introduction to delegation theory as applied to a range of political institutions, including courts, see Thatcher and Stone Sweet (2002). (12) Elkins, Ginsburg, and Melton (2009); Stone Sweet (2017). (13) Mavčič (2013). (14) Law and Versteeg (2011, 2013). (15) Elkins, Ginsburg, and Melton (2009); Ginsburg, ed. (2012). (16) The literature now reaches to every continent. Among others: Klug (2000); Landfried, ed. (1989); Lin (2017); Moustafa (2007); Sadurski, ed. (2002); Sadurski (2008); Shapiro and Stone Sweet (2002); Shapiro and Stone Sweet, eds. (1994); Sieder, Schjolden, and Angell, eds. (2005); Stone (1989; 1992; 1994); Stone Sweet (2002); Trochev (2008); Volcansek, ed. 1992. (17) Choudhry, ed. (2009); Perju (2012); Reif (2011). (18) For a compatible definition and discussion, see Raz (1998). (19) Hart (1994: ch. 5). (20) Hart (1994: 92). (21) To this point, Hart’s model overlaps that of another “legal positivist,” Hans Kelsen, who defined “the constitutional document” as “the supreme law of the land [consisting] in ‘that positive legal norm (or set of norms) that regulates the creation of the other norms of the legal order’”; discussed and cited in Kalyvas (2006: fn 23). (22) In Hart’s model, the so-called Rule of Recognition, a sociological construction that the analyst infers from the stable practices of state officials, underwrites the rule of law itself. The Rule places judges under a duty to enforce all legal norms that meet criteria of validity, and places all other officials under a duty to abide by judicial decisions, properly taken. Hart (1994: 97–120). (23) Walker (1996: 267). Page 27 of 32

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Constitutions, Rights, and Judicial Power (24) Rosenfeld (2010). (25) Friedrich (1950: 25, 28, 123). (26) Lenaerts (1990: 205). (27) Rosenfeld (1994: 3). (28) The archetype of the absolutist constitution was the French Charter of 1814, which other monarchies, especially in the Germanic regions, widely imitated. In the twentieth century, many constitutions read as if they established democracy and a system of justice, but in fact functioned as single-party, military, or oneman dictatorships. Examples include the USSR and many Central European states under Communist Party control, and regimes established after military coups in Asia, Africa, the Caribbean, and Central and South America. Although less prevalent in recent decades, there have been a handful of constitutions since 1980 that expressly enshrined one-person or one-party rule, including those of Sri Lanka, Togo, and Niger. See Stone Sweet (2017). (29) Andersen and Stone Sweet (2010). The data set includes 196 states. (30) As discussed below and in Chapter 3, Israel nonetheless features a powerful Supreme Court that protects rights as part of the higher law. (31) For present purpose, we will use the United Kingdom to refer to its constituent parts. (32) Iraq’s 1990 constitution, drafted under Saddam Hussein’s rule, failed to establish judicial rights protection; it has since been replaced. (33) Australia, apart from the fact that its constitution is entrenched, is virtually the last example of a classic legislative sovereignty system. Yet rights discourse and politics has emerged; on rights-based judicialization in Australia, see Sheehan, Gill, and Randazzo (2012). (34) Gardbaum (2013). (35) The legislatures can ignore rights decisions in the UK and New Zealand, and set them aside in Canada, a modern system that renounced legislative sovereignty in 1982. (36) Gardbaum (2013); Hiebert (2011). (37) Arguably, the present Canadian system should not be counted as part of the “Commonwealth model,” for the reason that the Supreme Court of Canada has the final word when it comes to the constitutionality of statutes, not the

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Constitutions, Rights, and Judicial Power Parliament. In reenacting legislation already judged to be unconstitutional, the Parliament does not thereby render it constitutional. (38) Discussed in Chapters 2 and 4. (39) Langford, ed. (2009). (40) There are also a significant number of “mixed” systems that blend elements of both; see Mavčič (2013). (41) Art. III of the U.S. Constitution. (42) United States Supreme Court (1803). (43) American-style judicial review is dominant in North America (Canada and the U.S.) and the commonwealth countries, including the Caribbean. The European model prevails in Europe, the Middle East, Latin America, and parts of Asia. Data reported in Stone Sweet (2017: 167). We do not discuss mixed systems here, but see Mavčič (2013). (44) Stone Sweet (2012a); see also Comella (2009). (45) In Europe, the effect of incorporating the European Convention on Human Rights has been to strengthen the review powers of the ordinary judiciary; see Stone Sweet (2012b). (46) Brewer-Carias (2014). (47) Reif (2011). (48) Scheppele (2009). (49) Following from Dimaggio and Powell (1983); Jepperson (1991). (50) Shaffer, Ginsburg, and Halliday, eds. (2019). (51) Moustafa (2007); Ginsburg and Moustafa, eds. (2008). (52) Ginsburg (2003: chs 1–2). (53) Stone Sweet (2000: ch. 3; 2002). (54) Stone Sweet (2000: ch. 3). (55) Milgrom and Roberts (1992: 127–33). (56) Stone Sweet (2000: ch. 2).

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Constitutions, Rights, and Judicial Power (57) If the polity is federal, review will provide a means of resolving disputes between the federal government and the federated states, and among the federated states themselves. It is an old truism that federalism needs an umpire, which helps to explain why all federal constitutions provide for review. (58) This type of theorizing does not explain why autocratic rulers, too, write constitutions with rights and review, despite having no commitment to building an open, democratic competition for power with opponents. Nonetheless, authoritarian rulers find uses for constitutions and courts; Ginsburg and Moustafa, eds. (2008); Ginsburg and Simpser, eds., (2014). Litigation may comprise a relatively cheap means of monitoring what police and the lower echelons of the bureaucracy are doing on the ground; and courts can help rulers enforce new policy in the face of resistance, or remove challengers to their power altogether. Rulers also institute review in order to achieve a measure of international respectability, never doubting their capacity to control their courts. (59) The extent of judicial lawmaking, and the parliament’s willingness and capacity to override the courts, will vary across systems. (60) Once the constituent assembly’s work is completed, for example, it is dissolved. (61) On the concept of the trustee court, see Stone Sweet (2002, 2012), and Stone Sweet and Brunell (2013). (62) As a matter of institutional design, a court that meets these criteria is a trustee. (63) In this sense, the trustee court is a kind of “super-agent” of the People. (64) Leib, Ponet, and Serota (2013); Stone Sweet and Brunell (2013). (65) Stone Sweet and Brunell (2013), 699. (66) See Chapter 3 for a discussion of the relationship between jurisdiction and standing. (67) Despite high odds, some apex courts have operated with measurable effectiveness in authoritarian settings, including in Mubarak’s Egypt, Moustafa (2007), and Pinochet’s Chile, Barros (2002). (68) Varju and Chronowski (2015). (69) Sadurski (2018). (70) IDEA (2017); Sadurski (2018). (71) Issacharoff (2015). Japan is an important exception; see Law (2011). Page 30 of 32

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Constitutions, Rights, and Judicial Power (72) Stone Sweet (2012a). (73) Stone Sweet (1998). (74) Stone (1992: ch. 3). (75) Stone (1992). (76) This type of evolution may also be considered a kind of Kelsenian coup d’état initiated by judges; Stone Sweet (2010). (77) Stone (1992). (78) Article 368(4): “No amendment of this Constitution … shall be called in question in any court on any ground.” Article 368(5): “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.” (79) Albert (2009) distinguishes between the “textual model” of revision and the “substantive model.” The textual model is a complete set of procedures that establishes the “necessary and sufficient conditions” for amending the constitution. In contrast, the substantive model supplements procedural conditions with substantive constraints. (80) See, generally, Albert (2009; 2017) and, in Asia, Yap (2017: ch. 11). (81) Stone (1992: ch. 4). (82) Neither had previously been recognized as enforceable against Parliament. (83) Sapir, Barak-Erez, and Barak, eds. (2014) assesses this revolution. (84) Eskridge and Ferejohn (2010). (85) Ackerman (2014). (86) United States Supreme Court (1883), in which the Supreme Court struck down a Congressional statute (intended to enforce the Fourteenth Amendment to the U.S. Constitution) that would have prohibited racial discrimination in the provision of services otherwise made available to the general public. (87) Ackerman (2014: ch. 7). (88) Arguably, the Supreme Court (2013, Shelby County v. Holder) conclusively refuted the claim that so-called super-statutes have any special constitutional stature. That decision invalidated key provisions of the Voting Rights Act on the

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Constitutions, Rights, and Judicial Power grounds that they exceeded Congress’s power to enforce the Fifteenth Amendment.

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Proportionality and Constitutional Governance

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

Proportionality and Constitutional Governance Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0002

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

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Proportionality and Constitutional Governance Keywords:   qualified right, limitation clause, suitability, necessity, proportionality, judicial supremacy

Modern constitutions prioritize charters of rights, establishing positive requirements of legality binding on all branches of government; and they create trustee courts, institutionalizing modes of judicial supremacy to enforce them. Going forward, we argued, the primary measure of the effectiveness of any system of constitutional justice will be the impact of the court’s jurisprudence on the policy-making decisions of all other state officials. Constitutional judges will govern insofar as their rulings serve to coordinate, as interdependent causal processes, the evolution of constitutional law and public policy (Chapter 1). In this chapter, we consider why judicial enforcement of the proportionality principle has become the central procedural component of constitutional governance in the world today. Our approach to this question blends doctrinal (legal) and strategic (political) logics. First, we argue that proportionality analysis (PA) provides judges with a coherent, trans-substantive, and well-tested methodology for adjudicating qualified rights. Second, in adopting PA, constitutional judges also acquire a stable means of managing the legitimacy dilemmas that afflict lawmaking courts, dilemmas that are accentuated under conditions of judicial supremacy. The duty of a constitutional court is to maximize the effectiveness of the charter of rights, not to comfort legislative majorities, and PA helps them perform this task in a principled manner. We should clear away a potential misunderstanding at the outset. PA provides the most defensible approach to adjudicating qualified rights that is currently available. But it does not dictate “correct” legal solutions to conflicts between (i) a rights claim and (ii) a statute that would limit the scope of a right under a limitation clause. PA does not camouflage judicial lawmaking. Rather, when properly employed, it requires courts to acknowledge and defend—honestly and openly—the policy choices they make. Proportionality is not a magic wand that judges can wave to make the legal and political dilemmas of rights review vanish. Indeed, waving it will expose rights adjudication for what it is: constitutional lawmaking issuing from the commitment to (p.31) protecting rights. Nonetheless, adopting PA can help judges rationalize rights adjudication and—as important—to ground dialogic interactions with the public officials whose decisions they supervise. Chapter 3 traces the process through which virtually all of the world’s most powerful courts embraced PA, making it a constituent component of modern constitutional law. Here we focus on the logics that have sustained that process. In Part I we argue that PA, with its sequence of subtests culminating in balancing, neatly fits the structure of qualified rights, providing a comprehensive analytical framework for adjudicating them. Part II directs attention to the various ways in which proportionality enables judges to manage legitimacy issues associated with judicial lawmaking and supremacy. In Part III, Page 2 of 31

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Proportionality and Constitutional Governance we sketch a simple model of constitutional governance, with rights and PA at its core, and respond to objections and alternatives.

I Rights, Justification, Constitutional Legality At the heart of every system of constitutional justice is a justiciable charter of rights. In modern charters, only a very small number of rights are expressed in absolute terms.1 In some influential systems, including the German, human dignity possesses a special, inviolable status providing a normative foundation for all other rights.2 But most rights provisions are qualified by a limitation clause, which permits government officials to infringe upon freedoms for some sufficiently important public purpose. As a matter of constitutional theory, the constitutional legislator—the People—not only established qualified rights, but conferred broad enforcement powers on constitutional judges. Yet, the drafters of new constitutions, relying on relational contracting or copying the product of those who had done the same, gave little or no practical guidance on how to adjudicate limitation clauses (Chapter 2). Several different options were available. Judges could have adopted a posture of deference to the legislature, invalidating a statute only when found to be manifestly irrational, for example, or to have been taken for an unlawful purpose. Instead, even newly minted courts gravitated to a highly intrusive standard of review: PA. (p.32) Doing so exposed virtually every aspect of the decision-making of government officials to judicial scrutiny (Chapter 3). If rights comprise positive requirements of constitutional legality, and if constitutional courts use PA to adjudicate limitation clauses, then the domain of proportionality will be as extensive as the powers of state organs to make and enforce law, and of judges to review these acts. To understand why this is so, we need to examine in greater detail the structure of qualified rights, and why PA neatly fits this structure. Qualified Rights

Limitation clauses are a structural property of modern rights provisions. Some theorists understand qualified rights to comprise a single norm that preauthorizes the right’s curtailment for legitimate constitutional reasons.3 Others consider rights and limitation clauses to be separate but interdependent norms: they operate as reciprocal constraints on the processes of delimiting governmental powers and rights, respectively.4 Proponents of both perspectives are in agreement with respect to the three features of qualified rights with the greatest significance. First, the scope of qualified rights—and, hence, the charter as a whole—is extensive, covering, in many systems, virtually any condition or activities individuals might choose for themselves. Some charters express as much through a general liberty clause, the most influential of which is Article 2.1 of the German Basic Law (1949):5 Page 3 of 31

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Proportionality and Constitutional Governance Every person shall have the right to the free development of [her] personality in so far as [she] does not violate the rights of others, or offend the constitutional order or moral code. Under this formulation, German officials possess implied powers to curtail liberties, for the reasons stated.6 Provisions establishing specific rights (to speech and assembly, conscience and religion, to work and property, and so on) are also understood in expansive terms, not least, since their scope may be (p. 33) curtailed under the limitation clause. Moreover, as we will see, reliance on PA makes a generous approach to qualified rights both plausible and viable.7 Second, limitation clauses possess the same rank and status as the rights they qualify. As Aharon Barak puts it, both “draw their authority and content from the same source”: the constitution. Nonetheless, rights are core constitutional norms, and they take primacy over statutes, being sub-constitutional norms.8 A legislature may reduce a right’s scope, but only through a limitation clause. Some clauses specify the headings under which government may lawfully act.9 Other charters, including the Canadian, contain a general limitation clause covering all qualified rights.10 Third, modern charters do not merely constrain the making and enforcement of law. They also place public officials under a duty to protect rights, and to enhance their effectiveness on an ongoing basis.11 The legislature enhances rights’ effectiveness when it acts to reduce conflicts between contending rights claims, for example. The right to free speech will regularly come into tension with the right of personal honor (subsuming a right not to be defamed); and the scope of a woman’s right to control her reproductive life (under a right to privacy or free development of personality) and the right to life of an embryo stand in an inverse relation to each other. Lawmakers are expected to create the legal arrangements within which conflicting claims can be resolved. Moreover, most modern constitutions lay down a set of more specific “positive rights,” which require government to create and maintain the conditions necessary for their availability and use. Thus, it would be a serious error to understand a limitation clause as a mere “loophole,” “escape hatch,” or a legal license for public officials to derogate from charters. On the contrary, qualified (p.34) rights enlist all branches of government in a common mission to protect rights in light of the public good. It is through limitation clauses that a democratic polity draws lines between individual liberties and the public interest, and seeks to strike a stable balance among contending values of constitutional importance.12 Most powerful trustee courts use PA to guide this process, which proceeds through the resolution of individual legal disputes, one at a time. Constitutions are bundles of secondary rules: meta-rules that govern the creation and enforcement of all other (sub-constitutional) legal norms (Chapter 1). Qualified rights tie together, as tightly interdependent, multiple types of Page 4 of 31

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Proportionality and Constitutional Governance secondary rules. Insofar as they authorize the legislature to pass legislation that restricts the scope of rights, limitation clauses are power-conferring rules. Rules of adjudication vest trustee courts with the jurisdiction to determine whether qualified rights have been violated—in other words, whether rights limitations are justifiable. Most centrally, rights impose criteria of validity: a subconstitutional act that does not comport with rights is invalid. Taken together, these meta-norms are constitutive elements of an overarching principle of constitutional legality,13 which is at the very core of any minimally effective system of constitutional justice more generally (Chapter 1). In sum, modern charters of rights are predicated on the presumption that any important act of government will limit freedom in some sense. It is the responsibility of constitutional judges to determine whether officials have acted lawfully under the powers conferred on them by a limitation clause. The centrality of qualified rights to constitutional governance thus directs attention to the crucial question: how should the constitutional judges adjudicate limitation clauses? Step-by-Step

Proportionality operationalizes the principle of constitutional legality. Put somewhat differently, when judges adopt PA, they constitute a mode of governance comprised of the following elements: · All public officials are under a duty to justify any act that would abridge the scope of a qualified right. · The constitutional court possesses the authority to assess these reasons. The court adjudicates qualified rights through the enforcement of the proportionality principle. · The lawfulness of government acts taken under a limitation clause depends on its proportionality. An act that fails any subtest of proportionality is in conflict with the constitution, and is therefore unlawful. (p.35) When a trustee court embraces the proportionality principle, proportionality becomes a criterion of validity, a part of the system’s secondary rules. Elevated in this way to a meta-principle of governance, proportionality emerges as a fundamental element of constitutional legitimacy. PA is an analytical procedure for determining whether an official act, taken under a limitation clause, is constitutionally justified. It proceeds through a sequence of subtests. In a preliminary stage, the court verifies that the government act under review has curtailed (or will curtail) the scope of a right. Most courts use this occasion to discuss and further develop the jurisprudential theories that underpin the pleaded right, as well as any prior rulings that bear upon the case at hand. Virtually no important claim is rejected at this stage, Page 5 of 31

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Proportionality and Constitutional Governance precisely because it is through the subtests of PA that the court will determine the outcome. As described by former Chief Justice of the Supreme Court of Israel Aharon Barak: A limitation … occurs whenever a state action … prevents [a rights holder] from exercising [the right] to its fullest scope. This is all that is required; accordingly, a limitation occurs whether [its] effect … is significant or marginal; whether the limitation is related to the right’s core or to its penumbra; whether it is intentional or not; or whether it is carried out by an act or an omission … Indeed, every limitation is unconstitutional unless it is proportional. Only when the statutory provision limiting the constitutional right is proportional – when it fulfills all the requirements of the limitation clause – can we say that the limitation is valid. Only then can the constitutional right peacefully co-exist with its limitation.14 Proportionality review is triggered once it has been established that the scope of a qualified right has been limited, which places the government under a justificatory burden. PA provides judges with a comprehensive “checklist” of those “individually necessary and collectively sufficient criteria that [must] be met for [state acts] to be justified” in a constitutional democracy.15 In its most developed form,16 PA proceeds through a sequence of four subtests: (i) “legitimacy” or “proper purpose”; (ii) “suitability” or “rational connection”; (iii) “necessity”; and (iv) “proportionality in the strict sense.” A government measure that fails any subtest in this sequence is unlawful. Consider the review of a statute challenged on the grounds that it unlawfully restricts a rights holder’s liberty. The first phase of PA mandates inquiry into the “legitimacy” of the statute’s purpose: the judge confirms that the constitution authorizes the parliament to legislate in service of the chosen policy objective. If the constitution does not permit the state to pursue such a (p.36) purpose, then the rights claimant must prevail. The analysis focuses on legislative ends, not on the means chosen to effectuate those ends. By definition, a legislative purpose that can justify a limitation of a right is proper, as when the legislature acts under powers granted by a limitation clause. In the second step—“suitability”—lawmakers must show that a rational relationship exists between the means chosen and the ends pursued, such that the former is rationally related—suitable—to advancing the end. In most systems, few laws are invalidated on grounds that the stated official purpose is illicit (that is, per se illegitimate), or that the act is facially irrational or arbitrary (the means being unsuitable).17

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Proportionality and Constitutional Governance The third phase—“necessity”—has far more bite. At its core is a least restrictive means test, also called a requirement of “minimal impairment” (Canada). The court’s task is to ensure that the measure under review does not impair the pleaded right more than is necessary for parliament to achieve its declared purpose. In practice, judges skilled in PA rarely censure a measure simply because they can imagine one less restrictive alternative. Instead, necessity requires that policymakers consider a range of reasonably available alternatives, and choose the option that burdens the right the least. As a pleading matter, judges also expect rights claimants to identify one or more less restrictive alternatives. The subtest also constrains judges: it is inappropriate for a court to strike down a statute without explicit reference to a hypothetical alternative that would meet the standard of necessity. It is important to stress that, within necessity analysis, the class of bona fide alternatives is restricted to those means that would fulfill the legislature’s declared objectives. As Barak puts it: The necessity test is triggered … when the fulfillment of the purpose is possible through the use of several alternative rational means, each of which limits the constitutional right to a different extent. In this situation, the necessity test demands that the legislator choose the means which limit the constitutional right to the least extent.18 How the legislature characterizes the purpose of a statute—its goals—will heavily structure necessity review. If, for example, the legislature chooses to ban the sales of a dangerous drug in order to achieve the goal of protecting health, a labelling requirement (stating that abuse of the drug will endanger health) is not an equally effective alternative, since its capacity to reduce harm is substantially lower compared to a ban. In this example, the ban passes the suitability subtest, in that it is rationally connected to health protection, and it passes the necessity test insofar as no less restrictive means (on the liberty to (p.37) obtain the drug) would enable the government to achieve its chosen (high) level of protection. In the proportionality world, the analysis cannot end with necessity. If it did, a legislature could usually find ways to reduce less restrictive alternatives to nil— thereby insulating a law from censure—by seeking the highest ideal level of protection. Further, measures that impose a heavy and perhaps unjustifiable burden on the rights holder would automatically prevail, once the less restrictive means test was satisfied. If rights are to be effective, a fourth and final stage is required: balancing, or “proportionality stricto sensu” (“in the strict sense”). Balancing entails assessing, in light of the facts of the dispute and the policy context, the act’s marginal addition to the realization of an important public purpose against the marginal injury incurred by infringement of the right.19 One Page 7 of 31

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Proportionality and Constitutional Governance core function of balancing is to ensure that a comparatively small or even trivial addition to the public good does not curtail a right more than can be justified given the polity’s deeper constitutional commitments. Judges who rely heavily on this stage also emphasize that balancing allows them to “complete” the analysis, in order to check that no factor of significance has been overlooked in previous stages.20 After all, it is only after the government’s own policy choices have survived scrutiny under the legitimacy, suitability, and necessity tests that the importance of the right, in the context of its limitation, becomes the focus of direct attention. Balancing

In arriving at the balancing stage, trustee courts are necessarily implicated in a larger policy process. As guardians of the constitution, they will authoritatively determine the legality of the act under review. In Chapter 5, we examine the various ways in which the lawmaking of constitutional courts can be distinguished from that of other policymakers. As proportionality is institutionalized as an overarching principle of constitutional governance, the boundaries distinguishing what trustee courts and legislatures do, when they make law, will necessarily blur. If the parliament is placed under a duty to legislate proportionally, then it must balance appropriately. When judges supervise legislative balancing, their determinations are registered as an outcome of an overall policymaking process. In such situations, the attempt to strictly demarcate the respective domains of the legislature and the court makes little (p.38) sense, either conceptually or as a description of what is actually going on.21 PA subverts any separation of powers scheme that holds that the courts are prohibited from reviewing how a legislature has balanced among contending social interests. Balancing is controversial in that it undermines traditional distinctions between lawmaking and adjudicating, at least when it comes to rights protection. Balancing exposes the court to the charge that it is arrogating to itself an inherently legislative function while adding little more than a second (and redundant) decision-making procedure to the policy process. But there is less to the charge than might appear at first blush. After all, the constitutional legislator, acting on behalf of the People, has entrusted the function of rights protection to the constitutional court, and relegated legislative authority to a lower echelon on the hierarchy of norms that constitutes the polity. Second, and just as importantly, it is up to a trustee court to determine how to resolve conflicts involving qualified rights, unless the constitution provides specific instructions, which almost none do. Proportionality review is an available option, and as we argue below, a reasonable one for courts to choose if they are to fulfill their fiduciary duties as trustees.

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Proportionality and Constitutional Governance Contending normative assessments of balancing are dominated by the problem of incommensurability. By incommensurability, we mean the absence of a common metric to assess the relative importance of the values or interests that come into conflict in rights adjudication. In market relations, a common currency provides commensurability of goods and services, through a pricing mechanism. But there is no standardized way to measure the “weight” of the marginal “cost” to a rights holder against the additional “benefit” to the common welfare of a statute or administrative rule. Instead, in a PA-governed system, both legislatures and judges help to determine the limits of the state’s powers to regulate under a limitation clause. Trusteeship means structural judicial supremacy, and the constitutional court’s position on important questions will typically prevail (over that of, say, the legislative majority), insofar as the court delivers clear, well-justified decisions that induce compliance. Proponents of proportionality—in particular, judges and scholars—have labored to demonstrate that the constitutional lawmaking through balancing is neither unfettered nor “irrational,” but disciplined by rules capable of constraining the balancer. In this regard, the formulations of Robert Alexy22 and Aharon Barak23 are, today, integral components of the doctrinal construction of, and global discourse on, proportionality. Alexy, synthesizing the jurisprudence of the GFCC, has declared the Law of Balancing: (p.39) The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.24 Defensible rulings in balancing are those that meet the demands laid down by this “law.” For his part, Barak has elaborated the Rule of Balancing, emphasizing (as we have) analysis of the relative harms and benefits to be expected from the act under review: As the importance of avoiding the marginal limitation on the constitutional right and the likelihood of the limitation [to harm the rights holders] increase, so do the required importance of the marginal benefit of the public interest or the competing private right and the required likelihood of that benefit being realized.25 Both formulations stress the duty of the judge to engage in relational analysis of the values in tension. They require the judge to give a reasoned answer to the dispositive question: does the law under review burden liberties too much, given our constitutional commitment to rights? In doing so, the judge will construct a jurisprudential understanding of the right and the limitation clause. Both rest on a strong presumption: that it is possible to assess the relative harms and benefits of the state act under review. Barak: Page 9 of 31

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Proportionality and Constitutional Governance The weight that is attached to the side of the rights on the scale is derived not only from the importance of the right, but also from the extent of its limitation, its intensity, and its dimensions. A limitation nearing the margins of the right differs from a limitation nearing its core. A temporary limitation is less severe than a permanent one. Thus, [the] consequences of [any] limitation of a human right and its effect on those entitled to the right affect the weight of the right itself.26 Alexy stipulates that the law of balancing involves three stages of reasoning: The first stage involves establishing the degree of non-satisfaction of, or detriment to, a first principle [e.g., the right in question]. This is followed by a second stage in which the importance of satisfying the competing principle is established [e.g., the social benefit of a rights-limiting statute]. Finally, in the third stage, it is established whether the importance of satisfying the latter principle justifies the detriment to or non-satisfaction of the former. If it were not possible to make rational judgments about, first, intensity of interference, secondly, degrees of importance, and, thirdly, their relationship to each other, [then it would be impossible to make “rational” and “objective” decisions]. Everything turns, then, on the possibility of making such judgments.27 Simplifying what is a highly formalized position, Alexy argues that judges—and, as important, the court’s audience—are able to measure different degrees (p. 40) of satisfaction and detriment to the competing principles. A statutory limitation on the scope of a right may be classified as “light,” “moderate,” or “severe,” for example. Under the law of balancing, the court must strike down a government act that effects a severe curtailment of a right while failing to provide a very important addition to the common good. On the other hand, if the intensity of interference is established as minor, and the degree of importance of the reasons for the interference as high, then the outcome is “obvious”: the government will prevail.28 In accepting the basics of these directives, Alexy and Barak insist, one is led to acknowledge that balancing under conditions of incommensurability does not inevitably reduce to a process through which judges merely enact their (ideological) preferences when they choose among the policy options on offer. Pushing further, balancing “bears little relation to cost–benefit analysis in a crude utilitarian sense.”29 As Barak puts it: “balancing” is only a metaphor for what judges do at this stage.30 The subtest involves assessing the relationship between two of the most important requirements of the constitutional order: (i) individual liberty, embodied in the qualified right being pleaded, and (ii) the authority of state officials to govern in the public interest, while respecting rights. In our view, these competing requirements are not strictly incommensurable; rather, they set into motion a process of mutual rePage 10 of 31

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Proportionality and Constitutional Governance equilibration, in which each must be assessed in light of the other. In balancing, judges make a holistic evaluation of whether, in light of circumstances and the polity’s constitutional commitments, officials are justified in taking a measure, given their duty to create a system in which the interests of all rights holders, and of society more broadly, are protected. The “balancing” inquiry comprises a distinctive means of advancing sets of interdependent constitutional values, not a consequentialist operation of weighing contending interests against one another.31 Finally, it is worth noting that proportionality balancing has an uneasy, still unsettled, relationship with notions of precedent. Alexy portrays each instance of PA as if it takes place on a blank slate, and this comports with the standard representation of PA. For each new case, the court marches through each of the subtests until a dispositive decision is reached, regardless of what has been decided in past rulings. The practice is defensible, not least, on the grounds that every case is meaningfully unique in some important respects, and that the same legal norm can be implemented in different ways by different officials. At the same time, balancing produces rules, some of which are rigid. In Germany, the legislature may never decriminalize abortion, for example; under the European Convention of Human Rights, states must (p.41) provide a means for transsexuals to register a change in gender. Produced through balancing, these are constitutional directives; and they are formulated as rules, not standards or principles. As the rules produced by a court’s balancing decisions accumulate, a picture of the court’s view on the importance of different rights claims will typically emerge. Barak brings these considerations to be bear in his notions of “principled balancing,”32 which requires the judge to be clear about the constitutional “reasons” that underlie the importance of a given right to the polity, and why the right must be protected from disproportionate intrusions. When judges engage in principled balancing, they are aware that they are involved in constitutional lawmaking—the construction of a constitutional jurisprudence that will have prospective effects on how they will balance in future cases. This jurisprudence can help policymakers and potential litigants assess in advance the probable weight to be given to the strain of a right being pleaded in a future case.

II Strategic Considerations The process through which PA emerged as the global, best-practice standard of rights adjudication is enormously complex, involving thousands of discrete decisions taken by actors operating in very different political contexts and legal settings, across many decades. In the face of this complexity, we offer a relatively simple theory.33 Distilled to basics, the theory “explains” important aspects of judicial behavior as responses to the quasi-permanent crisis of political legitimacy that will afflict any court as its influence on policy grows. This crisis is severely aggravated when judges make law under conditions of structural supremacy. The elaboration, by Alexy and Barak, of law-like directives Page 11 of 31

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Proportionality and Constitutional Governance governing balancing—which are grounded in the practices of powerful courts—is just one important strategic response to this crisis. As will become clear, we do not use the word “strategic” in a pejorative sense, nor do we ascribe to members of courts “partisan” or “non-judicial” motives when they behave strategically. To properly perform their tasks, trustee courts must routinely make strategic choices in law (Chapters 1, 5). Some successful choices, including the adoption of PA, are inscribed in a stable jurisprudence. After a brief summary of the theory’s main features, we discuss the advantages (p.42) PA gives to constitutional courts. Embracing PA, we argue, can help judges mitigate legitimacy dilemmas in specific ways. Two-Against-One

We proceed from a reductive theory of third-party dispute resolution (TDR). At its core is an insight first made by anthropologists, namely, that the social demand for TDR is so intensive and universal that one finds no society that fails to supply it in one form or another.34 When two parties in dispute ask a third party for assistance, they build, through a consensual act of delegation, a node of social authority, or mode of governance. By “mode of governance,” we mean a stable mechanism through which the rule systems (norms, law) in place in any society are adapted and applied, on an ongoing basis, to the needs and purposes of those who live under them. The theory focuses on the dynamics and consequences of moving from a dyadic context (cooperation, conflict, dispute settlement between two parties) to a triadic one (mediation, adjudication) and moving from consensual TDR to compulsory TDR.35 As Martin Shapiro has argued, triadic governance contains a fundamental tension that threatens to destroy it.36 In consensual TDR, the triadic figure knows that her social legitimacy rests in part on the blessing of the parties, and thus on the perception that she is neutral vis à vis the parties and their dispute. Once constituted, the triadic entity faces a potentially intractable dilemma. On the one hand, her reputation for neutrality is crucial to her legitimacy. Disputants would be loath to delegate disputes if it were otherwise. Yet, in resolving disputes, the third party may compromise her reputation for neutrality by declaring one party the loser, thereby creating a 2-against-1 situation. In such a situation, the dispute resolver’s interest, her existential priority, is to settle conflicts without destroying the perception of neutrality with respect to present and future disputants. Given this interest, she may well seek to mediate settlements, or to find an equitable solution, “splitting the difference” between the parties, for example. If one party must win—and, under adversarial conditions, each party hopes to do so—the typical solution is to base the outcome on pre-existing social norms. By definition, a community’s norms, whether informal or formalized as law, comprise ready-made standards of appropriate behavior, and thus facilitate both dyadic and triadic dispute settlement. In basing her ruling on norms, the triadic Page 12 of 31

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Proportionality and Constitutional Governance figure is, in effect, saying to the loser, “you have lost not (p.43) because I prefer your opponent; you have lost because it is my responsibility to uphold what is right in our community, given the facts of the dispute, and the harm that has occurred.” Her legitimacy now rests, in part, on the perceived authority of a third interest being brought to bear on the parties: the “social interest” embodied in the norms being applied. In any community, of course, the “perceived authority” of applicable norms, and therefore of TDR, will vary across time and contexts. Old-fashioned anthropological37 and newer economic approaches to social norms38 have shown that consensual TDR in close-knit societies typically operates to reassert pre-existing arrangements, or to evolve new ones only gradually. As communities grow in size and complexity, the functional demand for TDR will overlap with a growing need for rule adaptation (lawmaking). In such situations, consensual TDR, with its emphasis on settling conflict through (re)enactment of existing norms, is often insufficient. Robust commitment devices are all but required. Lawmaking and Supremacy

The move to adjudication aggravates the 2-against-1 dilemma. The judge’s authority, after all, is fixed by office and compulsory jurisdiction, backed by the state’s enforcement capacities. Courts are still ritually portrayed as triadic dispute resolvers. They still seek to avoid or mitigate the effects of declaring a loser, through the development of settlement regimes, splitting the costs of a decision among the parties, processing appeals, and so on. But judges are part and parcel of the coercive apparatus of the state. Moreover, given a steady caseload and a duty to justify their decisions with reasons, adjudicators will make law. One can assume, as we do for present purposes, that this lawmaking behavior is primarily defensive. Judges develop a rhetoric of justification, in part, to counter the perception of bias: “It is for these reasons, these norms grounded in this social interest, that you have lost.” Even so, norm-based justification will have prospective, regulatory effects, so long as some minimal notion of precedent exists in the system (Chapter 1). Viewed in this light, judges invoke precedent as a means of transforming judge-made norms into “pre-existing” law. Case law—a court’s jurisprudence—is a record of these moves. Judicial lawmaking thus raises a second-order legitimacy dilemma, rooted in the brute fact that the “content of the law governing the dispute could not have been ascertained by the parties at the time [it] erupted.”39 The applicable law is revealed through the court’s ruling. How one should properly (p.44) understand judicial lawmaking, and its political legitimacy, are questions that have haunted democratic and legal theory over centuries.

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Proportionality and Constitutional Governance One major stream of positivist theory emphasizes that precedent-based lawmaking itself constrains judges. H.L.A. Hart implies that the extent of defensible lawmaking discretion in place at any point in the evolution of the law is proportional to the indeterminacy of that law. Judicial lawmaking is defensible insofar as it proceeds in light of received precedent and to the extent that it “renders” the applicable law more determinate.40 The argument is functional: if judges did not possess lawmaking discretion, they would not be able to resolve legal disputes properly, given normative indeterminacy and other uncertainties, such as changing social, political, and economic conditions. For Neil MacCormick, a close student of Hart’s, the primary objective of legal theory is the development of standards for evaluating a court’s jurisprudence as “good or bad,” and “rational or arbitrary.”41 Good decisions are arrived at through interpretation and analogical reasoning; and the good judge packages his lawmaking as a relatively redundant, self-evident, incremental extension of available legal materials.42 The simple TDR model, and the conception of the judge derived from it, approximate most closely the dynamics of a civil dispute between private parties. The role of the constitutional judge in modern systems of constitutional justice, however, differs in important respects. To be sure, constitutional judges are expected to make the law more determinate: charters of rights are paradigmatic examples of incomplete contracts, comprising a list of broadly indeterminate norms (rights provisions). But what count as appropriate methods for doing so can vary in different contexts. In proportionality systems at least, judges are expected to apply the subtests, assess justifications for limiting rights, and to consider the relative importance of contending values, not to wring new law out of textual interpretation and their prior rulings. In any event, as we move from (i) consensual TDR, to (ii) a judge interpreting a statute in order to enforce it, to (iii) a constitutional court contemplating the invalidation of a statute on the grounds that the legislative majority has violated the charter, the triadic figure is increasingly implicated in systemic governance. In context (iii) it is meaningful to speak of judicial governance. In important instances of rights adjudication, wherein both litigating parties will always represent wider social interests in tension, 2-against-1 and judicial lawmaking necessarily overlap. The stakes become much higher. A court that gives more weight to one constitutional value over another is also making law that favors one policy interest over another. Other things equal, the most acute form of this problem will appear under conditions of judicial supremacy. Modern constitutionalism is characterized by structural (p.45) judicial supremacy, where trustee courts govern through their enforcement of charters of rights. In such a regime, judges are only able to appeal to preexisting norms to the extent that they leave a coherent jurisprudence of rights in their wake.

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Proportionality and Constitutional Governance Hans Kelsen, the founder of the modern constitutional court and of another important strain of positivist legal theory, made similar points, though in opposition to rights jurisdiction. After World War I, Kelsen labored to counter longstanding hostility on the part of executives and legislatures to constitutional judicial review. Most important, he distinguished what legislators and constitutional judges do when they make law. Parliaments are “positive legislators,” since they make law freely, subject only to procedural constraints laid down by the constitution. Constitutional courts, on the other hand, are “negative legislators,” whose legislative authority is restricted to the annulment of a statute when it conflicts with the constitution. Kelsen’s distinction between the positive and the negative legislator rests entirely on the absence of enforceable rights within the constitution. He explicitly warned of the “dangers” of providing for rights of constitutional rank, whose indeterminacy he equated with “natural law.” A court that sought to protect rights would obliterate the distinction between the “negative” and the “positive” legislator. Indeed, Kelsen argued, to the extent that constitutional judges would enforce rights, they would inevitably become super-legislators.43 The consolidation of rights-based constitutionalism after World War II has proven Kelsen correct. A rights-protecting, trustee court—by definition—is a positive legislator possessed of vast discretionary lawmaking powers (Chapter 1). But the ideological context for such arguments has radically shifted. Modern constitutional law, with its emphasis on rights, review, and entrenchment, fully secures the formal legitimacy of constitutional judges as rights protectors. Moreover, the salience of rights to policymaking will causally depend upon the court’s lawmaking. No right—qualified or absolute—can be protected by a court without that court producing new law. Under this view, constitutional lawmaking is an expected outcome of delegating interpretive and enforcement powers to trustee courts, at worst, a predictable tax to pay for obtaining the desired social benefit: the enforcement of the charter. Benefits

A court will embrace PA only if it considers that doing so will help it perform its duties. Put negatively, judges who reject the view that the charter of rights lays down criteria of constitutional legitimacy, or who believe that it is not the (p.46) role of a court to require reviewable justifications from lawmakers, will have no use for proportionality. Any sophisticated court facing this choice knows that robust and routine enforcement of the proportionality principle will clearly expose it as a lawmaker. At the same time, PA can help judges blunt the legitimacy dilemmas of lawmaking and supremacy. Here we highlight four sets of significant strategic advantages that PA can provide to a rights-protecting court committed to building systemic effectiveness. First, PA helps to mitigate the 2-against-1 problem by requiring the court to reduce the harm to the losing party as far as possible. Page 15 of 31

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Proportionality and Constitutional Governance The point has been formalized by Alexy, who grounds it in “a structural theory of rights” developed with reference to the jurisprudence of the German Federal Constitutional Court. Most important, Alexy distinguishes between “rules” and “principles,” and then conceptualizes principles as “optimization requirements.”44 A rule is a legal norm that is either “fulfilled or not.” A speeding limit is a rule: one is either within the limit or breaking the law. In contrast, principles—such as constitutional rights—are norms that “require that something be realized to the greatest extent possible given the legal and factual possibilities.” The distinction makes a difference in adjudication. A conflict between two rules can be resolved through giving primacy, or establishing an “appropriate exception,” to one of the rules. A conflict between two principles that both occupy the same constitutional rank, however, can only be settled through balancing. If rights are “optimization requirements” binding on the exercise of all public authority,45 then rights adjudication, and therefore lawmaking under a limitation clause, requires a means of optimization, which PA supplies. The role of optimization in alleviating 2-against-1 is easily grasped when we consider the effects of necessity review on the interests of a rights claimant. The command—if you find it necessary to legislate under a limitation clause, then you must do so with as little harm as possible to the rights holder—harnesses the legitimizing logics of Pareto optimality. A government measure that restricts a right more than is necessary to achieve a legitimate purpose can never be justified, since the right claimant could be made better off with no additional cost to the interests being pleaded by the government. Reducing the harm to the losing party is also basic to the balancing stage, as Barak’s “rule of balancing” makes clear. Indeed, Barak suggests that the balancing court ought to engage in “relative balancing,” which involves comparing the costs of various alternative means available to government in pursuit of its goals within the balancing stage. A government measure is disproportionate if it can be shown that an alternative would result in (i) a relatively small decrease in societal benefit, (p.47) while (ii) ensuring “a substantial reduction” in the harm to the rights holder.46 These logics also apply to conflicts between two rights provisions. It should be obvious that rulings that can be portrayed as shifting outcomes along a Pareto frontier, or that conform to the rule of balancing, will be more palatable to losers than those that do not. Such rulings are a coherent means of dealing with any policy dispute between social interests likely to lose (or gain) the most from any new allocation of collective goods through the measure under review. The court can then credibly announce that it took every pain to minimize the negative consequences of its ruling for the losing party or interest: indeed, the importance of the right, interest, or value pleaded by the loser required as much. Moreover, the policy impact of the ruling can be packaged as an inevitable by-product of adjudicating a limitation clause, rather than an outcome forced upon the polity by the judges’ policy preferences. After all, it is the Page 16 of 31

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Proportionality and Constitutional Governance parties, not the court, that generated the dispute, the policy context, and the menu of options available. Second, and relatedly, a court can deploy PA for the express purpose of blunting the effects of supremacy on legislatures and executives. It is worth repeating that PA does not make the problems of 2-against-1 or supremacy disappear. In any balancing situation, one interest will prevail against another, and the outcome will be enshrined in law. Yet in a future case involving a conflict between the same two values, the other side may well claim victory; under changing circumstances, the court is always free to assess the interests in tension differently. PA maximizes the court’s flexibility vis-à-vis all potential litigants in future cases. Turning our attention to cases in which the government loses, we see that PA makes ample room for the court to pay its respects to lawmakers in each of the subtests prior to the move to balancing. A powerful strategic advantage of treating the legitimacy and suitability stages as relatively pro forma threshold inquiries is that the court is then able to say to lawmakers: “It is clear that the law under review is an appropriate instrument for pursuing an important objective in the public interest, under powers clearly granted to you under the constitution.” A rights-prioritizing court must show that it takes the necessity stage more seriously. After all, why should it ever be acceptable for the government to infringe upon a right more than is necessary to achieve a declared objective? It is also indisputable that testing for less restrictive means pushes judges into a policymaking mode, in that the analysis requires the counterfactual considerations of the relative harms and benefits of alternative measures. At the same time, skilled judges routinely use necessity analysis to recognize and create policy space for officials. Lawmakers are entitled to determine their own goals, and to choose the means for achieving (p.48) them. Even when a court annuls a statute on necessity grounds, it may leave it to the legislature to choose from the alternatives that remain available. In doing so, the court creates a policy space—a “zone of proportionality”—within which the parliament is free to legislate.47 The delineation of the zone of proportionality is, we will argue, crucial for the construction of dialogic constitutional governance (Chapter 5). The balancing stage, too, gives the court opportunities to initiate dialogue with the various branches of government. Consider a case wherein the court has determined that a legislative measure under review (x) has passed the necessity test: x severely curtails a right (y) but is judged to be necessary, since only a severe curtailment of y could yield the legislature’s goals. In the balancing stage, the court will focus on the harm to be visited on rights holders, not merely on the legislature’s reasons for choosing x. If it moves to “relative balancing,” the judges will evaluate alternatives to x that are capable of reducing the harm to y (say, from “severe” to “light”) without a drastic marginal reduction of the social benefits Page 17 of 31

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Proportionality and Constitutional Governance sought by parliament. If the court strikes down x on these grounds, it is saying to the legislature: “you can pursue this objective but only by choosing means that are more rights protective.” It will then be left to parliament to respond, if under guidelines laid down by the court. It is worth repeating that the balancing stage is a structured form of constitutional lawmaking. PA does not give a unique, correct answer to complex legal questions that can only be resolved through balancing. The procedure does not, in itself, tell judges what weight to give the interests and values in tension. At best, when judges take on board Alexy or Barak’s prescriptions, PA will guide and constrain how a court balances; but it is the court’s task to establish the relative importance of the contending values, given the factual context of the dispute at bar. To repeat, balancing will always require some background notions—theories—of the significance of any right being pleaded, and of the proper role of the state in the society, economy, or private life, and so on, given factual circumstances. These considerations are at the heart of what Barak calls “principled balancing.” PA does not supply these theories, although it helps courts to process them jurisprudentially. Third, PA provides a trustee court with a relatively complete operating system. It lays down a fixed, determinate procedure for arriving at decisions in a domain— rights adjudication—that is substantively indeterminate. The incompleteness of rights provisions helps us understand why the founders gave extensive powers to trustees. But, we argued, these powers come in tandem with duties of a fiduciary nature (Chapter 1), at a minimum: · to work faithfully to protect rights (loyalty to the values and liberties placed in trust in the charter); (p.49) · to give reasons in justification of decisions (accountability to the polity); and · to consider carefully the interests of those who are vulnerable to the court’s decisions (deliberative engagement). It should be evident that, insofar as a court deploys PA in good faith, it will perform these duties naturally and transparently. While PA disciplines the internal deliberations of courts, it also helps constitutional judges manage potentially chaotic and explosive political environments. PA is a trans-substantive doctrinal framework: it applies to all qualified rights; and it is easy to teach, learn, and use. Once in place, the court will know, in advance, how pleadings will proceed; and the parties will know how the court will sequence the deliberations. A court’s fidelity to PA will entrench a specific mode of constitutional argumentation, thereby consolidating the proportionality principle as the operational core of the criterion of legal validity. Because arguing outside of the framework will become ineffectual, skilled legal Page 18 of 31

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Proportionality and Constitutional Governance actors will adapt to PA, thereby reproducing and legitimizing it, enabling the court to reinforce, on a continuous basis, the salience of rights-based deliberation within the greater political system. Fourth, to the extent that PA has been adopted by a set of powerful courts and has proved its managerial worth, additional courts will be drawn to it as means of underwriting their own bona fides as rights protectors. The recognition of PA as a “best-practice standard” of global constitutional law is the outcome of an ongoing macro process of diffusion and legitimation that has occurred on a global scale. As we show in Chapter 3, this process has all the hallmarks of what institutional sociology calls “institutional isomorphism,” in that PA’s diffusion has become subject to logics of mimesis and increasing returns (bandwagon effects). Faced with similar problems, judges copy what they take to be the emerging, high-prestige standard, thereby ensuring the result. For new constitutional courts—or for old courts charged with protecting a new charter of rights— embracing PA is a low-cost move, compared to the costs of developing an untested alternative on their own. It bears repeating that PA is a simple but comprehensive doctrinal structure. Judges, lawyers, officials, and law students can learn the basics quickly and deploy the framework with ease, which facilitates diffusion and benefits trustee courts in obvious ways. In our view, the available alternatives to balancing are far more likely than PA to exacerbate 2-against-1 and supremacy concerns. A court could seek to declare that rights possess an indefeasible, “absolute” quality, taking primacy over any other public interest—as “trumps.” Relatedly, judges could seek to avoid balancing by restricting their attention to the question of whether the public purpose being pursued by lawmakers is proper (in PA terms, constitutionally legitimate). And, in a dispute involving two rights claims, the court (p.50) could declare right x to be presumptively more important than right y. These strategies, and categorical approaches more generally, run a high risk of constitutionalizing winners and losers, and of radically reducing policy space prospectively. PA does not “freeze” outcomes into place. As circumstances change, the PA court may “rebalance” values and interests without having to replace one relatively rigid hierarchy with another.

III Constitutional Governance Proportionality’s more fervent advocates argue that PA inheres in modern constitutional law, as a structural component of rights, constitutional democracy and, hence, of the rule of law itself.48 Recognizing the reasons that trustee courts have to adopt the framework, however, does not entail accepting this claim. Its plausibility, after all, heavily depends on PA’s successful adoption and deployment by apex courts. What is undeniable is that the global diffusion of proportionality has altered the constitutional landscape in ways that pose fundamental challenges to both normative constitutional theory and empirical comparative research. Today, one observes an emerging consensus on the basic Page 19 of 31

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Proportionality and Constitutional Governance tenets of a general, structural model of modern constitutional law. Here we focus on the importance of rights adjudication and proportionality to such a model, and discuss alternative views. Charters as Blueprints

We have argued that modern charters of rights, trustee courts with extensive powers of review, and the adoption of PA combine to instantiate a distinctive system of constitutional governance.49 Rights establish the criteria of validity for all sub-constitutional law; trustee courts are responsible for ensuring that these conditions are met by all state officials who make and enforce the law; and PA provides a methodology for doing so. Limitation clauses are an integral component of the system: they authorize officials to make law, for any proper purpose, so long as that law respects the proportionality principle; and they place officials under a duty to legislate the arrangements under which rights may be enjoyed. In adopting PA, judges consecrate the proportionality principle as the primary criterion of validity and legitimacy. The more complete the system (Chapter 1), the more the constitution as a whole can be defensibly analyzed as an extended bill of rights. As Mattias Kumm puts it, (p.51) rights, constitutional courts, and PA are the structural basics of a “total constitution.”50 It should by now be obvious that a justiciable charter of rights that lays down positive requirements of legality comprises a general blueprint for the making of public policy, that is, for constitutional governance. In such a system, the more rights are adjudicated, the more central to policy will be the trustee court. And the more litigants challenge the constitutionality of legislative acts taken under the cover of a limitation clause—which will reduce to a challenge to a statute’s proportionality—the more PA will develop as a stable, discursive interface between the court and the legislature. In adopting PA, courts exclude formal deference doctrines that classify an issue as per se non-justiciable (a “political question doctrine,” for example), or that place a burden on the claimant that is so high as to make the routine and robust review of state acts all but impossible (e.g., under a so-called “Wednesbury unreasonableness” or “rational basis” test). When a trustee court embraces PA, it places all policymaking, and its implementation, in the shadow of proportionality review, thereby positioning adjudication to be the “normal,” primary mechanism of constitutional governance and change (Chapter 1). The Right to Just Governance

With the consolidation of systems of constitutional justice, a diverse group of scholars has gradually developed consensus on a structural model of rightsbased constitutionalism.51 We use “model” here in a non-technical sense, as a simplified, relatively abstract representation of how a legal system should operate, given its essential properties. We sketched such a model in this and the first chapter, the nuts and bolts of which can be summarized as follows.52 Through their representatives, in acts of constitution-making, the People place Page 20 of 31

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Proportionality and Constitutional Governance their most fundamental interests in trust, in the form of a charter of rights. The constitution also delegates to organs of governance and state officials the authority to construct and maintain the legal arrangements under which persons may exercise their rights, in light of other important constitutional values, including the public interest in reducing tensions between contending rights claims. The trustee court enforces the charter, supervising the rights-regarding acts of public officials, and invalidating them when they violate rights. The proportionality principle mediates the relationship between both (p.52) (i) the citizenry and officials, and (ii) the trustee court and all other branches of governance. The crucial start-up mechanism for building effectiveness is a right to justification: individuals possess a right to challenge the proportionality of any official act that infringes upon their rights.53 Jacob Weinrib has mounted a compelling theoretical defense of the model on the basis of its unique capacity to resolve the “problem of accountability” that has bedeviled all other available constitutional forms.54 A rights-based constitution, he argues, “exhaustively establishes the conditions for the valid exercise of all public authority,” with rights at the core. Weinrib neatly expresses the implications of such a system as a set of interlocking principles. All individuals possess “a right to just governance,”55 by virtue of the dignity that inheres in personhood, and which charters of rights express and “concretize.”56 Accordingly, the “right of rulers” to govern is “accompanied by the duty to respect and defend” the rights of the ruled. Under modern charters of rights, individuals “are free to ‘determine and develop themselves’ in a manner compatible with the equal right of others to do the same”;57 and it is the obligation of state officials to construct the charter-compatible arrangements within which this outcome is possible.58 To render the right to just governance real—that is, to ensure the accountability of officials—judicial review is required: [T]here must be an institution capable of assessing constitutional complaints on their merits, providing a public determination of the constitutionality of state action (or inaction), invalidating state action (or inaction) that violates constitutional standards and imparting remedies to those who have suffered public wrongs. Further, to perform this role, the relevant institution [must] possess legal expertise in constitutional interpretation and rights adjudication. Finally, this institution would have to be politically independent so that complaints would be considered on their legal merits rather than in reference to the preferences of the government of the day. The judiciary (or a specialized constitutional court) is uniquely suited for this role.59

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Proportionality and Constitutional Governance Making a right to just governance justiciable fully reveals the problem of accountability which, in turn, justifies (indeed requires) supremacy.60 Weinrib (p.53) rejects as inadequate the so-called Commonwealth model of constitutionalism61 (discussed in Chapter 1), which gives to legislatures the power to maintain statutes that a court has declared to be unconstitutional or incompatible with rights. Such systems—in particular, of the United Kingdom and New Zealand under statutory human rights acts—cannot resolve the problem of accountability, although such statutes may mitigate it.62 Finally, Weinrib argues at length that PA has no doctrinal rival as a methodology for fulfilling “the basic right of each person to just governance,” in that it requires the judge to consider each of the “justificatory conditions that government must satisfy” in order for the legitimacy of its law to be credited.63 Kumm has also developed a model that contains the building-blocks for the “development of the whole legal system.”64 The exercise of public authority is valid insofar as government acts are authorized by—and can be justified as an “implementation” of—the charter of rights. An unconditional “right to justification,” held by every individual subject to the law, is therefore necessary, indeed primordial;65 “proportionality based judicial review” serves both to “institutionalize” that right, and to undergird the legal system’s broader legitimacy claims.66 Kumm goes further than any other theorist in exploring how the systematic use of PA can generate better public policy, to the extent that its use helps to remedy various “pathologies” that afflict legislating in democratic states. Rational policymaking may be hindered by prejudices that are embedded in traditional (but often unexamined) ways of thinking, but which cannot be credited as legal reasons capable of justifying limitations on rights. Legislative and executives may be “captured” by rent-seeking firms or groups; if officials are unable to justify a contested measure, then they may well have designed it to favor unjustly one group at the expense of others or all. Officials may also seek to limit rights by exaggerating risks, and underplaying harms, as anti-terrorism measures taken around the world in the post-9/11 context illustrate. In the hands of skilled judges, PA will shine a bright light on unexamined presumptions, smoke out bad or corrupt motives, and rein in government when it overreaches.67 PA, far from being an inherently anti-democratic constraint on lawmaking, can thus help majoritarian organs of governance live up to their own ideals. It is starkly evident that the enforcement of the proportionality principle, under conditions of judicial supremacy, exacerbates the so-called (p.54) “countermajoritarian difficulty.” Proponents of the basic model, however, deny that the majoritarian elements of constitutional democracy—such as the direct election of the People’s representatives to the legislature—are sufficient to assure systemic legitimacy. Under modern constitutions, all constitutional governance is delegated governance. The People have established a trustee court to enforce

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Proportionality and Constitutional Governance its will, ordaining that all state acts must respect rights or be invalidated, thereby rejecting legislative primacy. As Barak puts it: The same “we the people” who adopted the constitution also adopted the institution of judicial review. Considerations of “counter-majoritarian difficulty” or “lack of sufficient democratic foundation” should not affect the actual exercise of judicial review. Rather, judicial review should be exercised in a way that would allow the judges the full ability to inquire whether the other branches – who limited a constitutionally protected human right – have properly followed the requirements of proportionality as prescribed by the constitution’s “we the people.”68 For his part, Weinrib demonstrates that majoritarian-based systems (either of the traditional legislative sovereignty type or of the Commonwealth model variety) are structurally incapable of fulfilling the right to just governance, or of vindicating the principle of accountability. “A modern constitutional state is inherently accountable; a majoritarian democracy is not.”69 Kumm, no less than Weinrib, argues that “the right to contest acts of public authorities that impose burdens on the individual is as basic an institutional commitment underlying … constitutionalism as an equal right to vote.”70 There is no way for a trustee court to deny its own supremacy when it enforces the proportionality principle while adjudicating the charter. But the deployment of PA, in the service of a right to just governance, can help to mitigate the 2against-1 problem. As Kumm writes: The outcome [of PA] must plausibly qualify as a collective judgment of reason about what the commitment to rights … translates into under the concrete circumstances addressed by the legislation … Even those left worst off and most heavily burdened by legislation … must be able to interpret the legislative act as a reasonable attempt to specify what citizens – all citizens, including those on the losing side – owe to each other as free and equals. When courts apply the proportionality test, they are in fact assessing whether or not legislation can be justified in terms of public reasons, reasons of the kind that every citizen might reasonably accept, even if [they] actually [reject them].71 (p.55) Alternatives

Not everyone agrees, of course. Other approaches to the review of rights are possible, and PA’s advance has not swept all alternatives from the field. Defenses of those other approaches, not surprisingly, tend to go hand-in-hand with critiques of proportionality. We focus here on PA’s chief rivals, and their defenders’ main lines of argument against PA. It is worth emphasizing at the outset that many variants of the arguments surveyed here have been made in recent years.72 Page 23 of 31

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Proportionality and Constitutional Governance As mentioned above, one of the standard alternatives to PA is a categorical or absolute conception of rights (see Chapter 4). As outlined by Ronald Dworkin in Taking Rights Seriously and elsewhere, the point of rights is to remove certain values and interests from the play of ordinary political processes entirely. To play this role, rights cannot be balanced against competing interests: they must take priority over them. The problem with proportionality, on this view, is that it does not take rights seriously enough. If rights are subject to balancing, then they can be balanced away. Different versions of this critique have been articulated by legal scholars as well as political philosophers, including Jürgen Habermas.73 At the same time, some fault PA for not being deferential enough to the policy judgments of elected officials. Courts committed to proportionality are backseat drivers, second-guessing the legislature’s choice of policy tools and ditching the balance struck by lawmakers between competing interests for their own. The problem on this view is that PA leads judges to take rights too seriously.74 The alternative implicitly endorsed is some version of deferential review, such as Wednesbury unreasonableness, or a “presumption of constitutionality” approach of the kind famously advocated in the nineteenth century by James Thayer.75 Each line of critique contains an essential truth. PA necessarily involves courts in the kinds of judgments typically made by elected representatives: judgments about the impact and efficacy of different policy measures, as well as judgments that trade off one interest for another. And precisely because rulings turn on these kinds of contextual considerations in a PA jurisdiction, rights are not absolute. The more one regards these features as disqualifying, the more attractive one of the alternatives may appear. But it is equally important to remember that PA negotiates a tension that is common to all systems of constitutional justice, between rights and majoritarian self-rule. The alternatives must confront this tension as well, and should be assessed on how they cope with it. (p.56) Courts committed to strong deference doctrines manage the tension by abdicating their responsibility under a rights-based constitution. Against the backdrop of an older history in which charters either did not exist or were scarcely justiciable, such an approach might appear adequate. But it hardly seems equal to the demands of a modern system of constitutional justice, in which rights are expected to mean something, and indeed, few systems today still cling to a Wednesbury approach (Chapter 3). A conception of rights as trumps offers vigorous rights protection within carefully maintained boundaries. The role of the court is to define and police the perimeter of those regions marked “no trespassing,” in which rights hold sway and the state must stay out. Some may find this an attractive conception of rights. What is important to recognize is that (i) unless the charter itself defines the borders of rights with precision, it entails judicial lawmaking no less than PA Page 24 of 31

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Proportionality and Constitutional Governance does; and (ii) as incomplete contracts, rights charters almost never define the contours of rights with precision. Whether a court treats rights as trumps or uses PA, the court reaches a disposition: either the challenged measure survives, or the rights claimant prevails. Under PA, the court justifies that decision through an open and systematic engagement with the contending values and interests at stake in the case. When rights are trumps, the court’s analysis stops when once it determines the challenged measure disturbs a right. The court does not reach its decision by weighing the values and interests at stake openly, in the manner of PA. Proponents of categorical approaches also find it difficult to do without balancing, not least, to define when rights are to be considered trumps (Chapter 4). Dworkin, too, has recognized that there are circumstances under which it would be inappropriate to apply rights with their full force. Rights might yield to the general good, for instance, in cases of emergency: “when the competing interests are grave and urgent, as they might be when large numbers of lives or the survival of the state is in question.”76 Weinrib has demonstrated that such exceptions, and Dworkin’s (evolving) approach more generally, has more than a passing resemblance to proportionality.77 The similarity should not be overstated, but it still stands as testimony to the draw that elements of proportionality exert on those who must decide how rights apply in concrete circumstances. Criticism of PA dovetails with anxiety about incommensurability (discussed above). In its stricto sensu phase, PA requires courts to weigh marginal gains to the public interest against marginal harms to rights holders. But if it is not, in fact, possible to meaningfully weigh these against one another, then the judgment must come down to something like unreasoned intuition, or raw preferences. The coin of the realm in a proportionality-based system of (p.57) constitutional justice is the scrutiny of justifications. If balancing judgments are not truly rationally justifiable, proportionality cannot deliver what it promises.78 Some also take the view that balancing, if not necessarily inconsistent with reasoned decision making, is nonetheless incompatible with the kinds of moral reasoning that rights, properly understood, require.79 In their strongest forms, these lines of criticism either take an unduly narrow view of the practice of balancing, or imply standards of rationality that few doctrinal frameworks could meet. “Balancing” is a metaphor; of course, interests are not actually “weighed” against one another. Instead, judges engage in a comparative analysis of options, and make reasoned judgments about why a measure is or is not justifiable, considering its positive and negative impacts. As we stress above, rulings need not rest on naked consequentialist reasoning that is indifferent to the character of the interests protected by rights. PA can accommodate deontological reasoning about rights, in a variety of ways: by treating deontological restrictions as “side-constraints” on balancing, by filtering Page 25 of 31

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Proportionality and Constitutional Governance the kinds of reasons that can count in the analysis, and by placing a thumb on the scales as necessary to properly respect human dignity or other core values.80 In any event, little in legal argumentation reduces to a syllogism; if the bar for what counts as rational justification is set that high, much in law will appear deficient. Given the indeterminacy of rights provisions, it is far more realistic to expect legal judgments to be supported by reasons, and judgments reached through PA will routinely meet that standard.

Conclusion This chapter focuses on the various ways in which adopting the proportionality principle can help judges build the effectiveness of the systems of justice they oversee. PA sidelines formal deference doctrines, while providing a stable framework for argumentation and justification. It “takes rights seriously” by requiring officials to justify their rights-regarding decisions with reviewable reasons, and (in trusteeship situations) through empowering the court to invalidate officials acts when they are found to be disproportionate. A trustee court that deploys PA consistently will routinely reveal its own lawmaking supremacy. Nonetheless, PA provides various means of blunting the court’s de jure supremacy. It enables judges, for instance, (p.58) (i) to avoid creating rigid hierarchies among rights and interests, (ii) to exploit the legitimizing logics of Pareto optimality, and (iii) to identify and respect the lawmaking prerogatives the legislators, executives, and ordinary judges rightly possess within a zone of proportionality (Chapter 5). In Chapter 3, we trace the process through which proportionality emerged and diffused as a global principle of constitutional law. Notes:

(1) The prohibition of torture, slavery, and inhumane treatment are typically expressed in absolute terms, and treated as absolutes, as are rights to due process and access to justice. The fact that a right is expressed in absolute terms does not mean that balancing never has a role to play in its adjudication. To take two examples from a jurisdiction often thought hostile to balancing—the United States—how much “process” a person is “due” depends on a weighing of the interests at stake, and whether a punishment counts as “cruel and unusual” depends on the gravity of the crime. United States Supreme Court (1962; 1976b). (2) Barak (2015); Weinrib (2016). (3) Webber (2009). (4) Barak (2012a: ch. 6). (5) Germany’s Federal Constitutional Court adopted a broad construction of Article 2.1’s scope in an influential early opinion.

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Proportionality and Constitutional Governance (6) Many later constitutions have clauses resembling Germany’s. Article 16 of Colombia’s Constitution (1991), for instance, provides that: “All individuals are entitled to the unrestricted development of their identity without limitations other than those imposed by the rights of others and the legal order.” Of course, there are variations. In South Korea (1987), Article 10 combines dignity and a general liberty clause: “All citizens are assured of human worth and dignity, and have the right to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.” (7) Kumm (2010); Möller (2012). (8) Barak (2012a: ch. 6) for analysis of issues of hierarchy raised by the structure of qualified rights. (9) Examples include: · Mexico, Constitution of 1917, Art. 6: “The expression of ideas shall not be subject to any judicial or administrative investigation, unless it offends good morals, infringes the rights of others, incites to crime, or disturbs the public order.” · Spain, Constitution of 1978, Art. 33(1): the right to private property, while article 33(3) provides for the restriction of property rights for “public benefit,” as determined by statute. · The Czech Republic, Constitution of 1993, Art. 17: “Freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures essential in a democratic society for protecting the rights and freedoms of others, the security of the State, public security, public health, and morality.” (10) Sec. 1 of the Canadian Constitution Act of 1982: “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.” (11) South Africa, Constitution of 1996, Art. 7(1)-(2): “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.” (12) Barak (2012a: 164–5). (13) Weinrib (2016: ch. 2); also Barak (2012a: ch. 5). (14) Barak (2012a: 102). Page 27 of 31

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Proportionality and Constitutional Governance (15) Kumm (2010: 144). (16) As detailed in Chapters 3, 5, and 6, there is substantial variation in how legal systems use PA. Among other things, some systems, including the German, consider the “proper purpose” of a law as preliminary to the deployment of a three-stage test; see Grimm (2007: 389). (17) Neither the first nor second subtest directs attention to the legislative effect on the scope of the pleaded right, which is the province of the third and fourth prongs. (18) Barak (2012a: 321). (19) Barak (2012b: 744–7). (20) Most prominently, members of the German Federal Constitutional Court and the Supreme Court of Israel. (21) See Stone Sweet (2000: chs 3, 4, 5). (22) Alexy (2002). (23) Barak (2010; 2012b). (24) Alexy (2005: 573; 2002: Postscript, 390–425). (25) Barak (2012b: 746). (26) Barak (2010: 10). (27) Alexy (2005: 573–4), addressing objections by Habermas (1996: 259, 1998: 430). (28) Alexy (2005: 575). (29) Stone Sweet and Palmer (2017: 400). (30) Barak (2012b: 745). (31) Stone Sweet and Palmer (2017: 400–1); Möller (2012: 175); Weinrib (2016: 240–5). (32) Barak (2010). The notion of “principled balancing” also responds directly to certain theoretical issues involving constitutional structure that we will not discuss here. (33) Only basic (and relatively reductive) theoretical materials could be useful when it comes to an attempt to build a general approach to modern constitutional law; see Shapiro and Stone Sweet (2002: ch. 4). Page 28 of 31

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Proportionality and Constitutional Governance (34) Shapiro (1981: ch. 1). (35) Stone Sweet (1999), as applied to constitutional systems of justice in Stone Sweet (2000: chs 1 and 7). (36) Shapiro (1981: ch. 1). (37) Malinowski (1932); more recent discussions include Collier (1973). (38) Ellickson (1991). (39) Stone Sweet (1999: 157). (40) Hart (1994: 124–41). (41) MacCormick (1978: 67–8). (42) Shapiro and Stone Sweet (2002: ch. 2). (43) Kelsen (1928), discussed in Stone Sweet (2000: 34–7). (44) Alexy (2002: 44–61). (45) Alexy (2002: 425): “Constitutions with constitutional rights are attempts simultaneously to organize collective action and secure individual rights.” (46) Supreme Court of Israel (2004). (47) Barak (2012a: ch. 14). (48) Alexy (2005); Barak (2012a: 211–34; 381–3); Beatty (2004). (49) On secondary rules as “plans” for building legal systems, see Shapiro (2013). (50) Kumm (2006); see also Möller (2012). (51) Weinrib (2016) gives this “basic model” the title of “modern constitutional law,” which Möller (2012) explicates as “the global model of constitutional rights.” (52) For a detailed elaboration, from the standpoint of Kantian constitutional theory, see Stone Sweet and Palmer (2017), and Stone Sweet and Ryan (2018; ch. 2). The approaches of Weinrib (2016) and Möller (2012) to rights and proportionality are also broadly Kantian. (53) Möller (2012). (54) Weinrib (2016: ch. 5).

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Proportionality and Constitutional Governance (55) Weinrib (2016: ch. 2). (56) Weinrib (2014: 183). (57) Weinrib (2014: 173) (citing German Federal Constitutional Court (1977)). (58) See also Möller (2012), who designates, as the basic value of the system, the “autonomy of free and equal citizens.” (59) Weinrib (2014: 185). (60) “[T]he legal and institutional structure of a modern constitutional state systematically addresses the problem of accountability. The integration of constitutional supremacy, constitutional rights, and judicial review enables each individual within the legal order to challenge the validity of an exercise of public authority on the grounds that it violates his or her right to just governance. Within this framework, the judiciary must answer neither to the many (which would regenerate the problem of accountability) nor to a higher authority … but solely to the supreme norms of the constitutional order”; Weinrib (2016: 156). (61) A model best elaborated and defended by Gardbaum (2013). (62) Weinrib (2016: 160–6). (63) Weinrib (2016: 223; ch. 7). (64) Kumm (2006: 344). (65) “Every act of legislation that restricts an individual from doing what she pleases, as well as any legislative classification, requires constitutional justification”; Kumm (2006: 346). (66) Kumm (2010: 143). (67) Kumm (2010: 157–64). (68) Barak (2012a: 383). (69) Weinrib (2014: 188). (70) Kumm (2010: 170). Alexy (2005) argues that constitutional review and PA create the conditions under which “argumentative representation,” a complement of electoral representation, can take place. (71) Kumm (2010: 168–9) (emphases in original). (72) See Urbina (2017); Webber (2009); Huscroft, Miller, and Webber, eds. (2014); Tsakyrakis (2009).

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Proportionality and Constitutional Governance (73) Habermas (1996). (74) Huscroft (2014). (75) Thayer (1893). (76) Dworkin (2013: 473). (77) Weinrib (2017). (78) On the other hand, Antaki (2016) has criticized proportionality on roughly the opposite ground: that it adheres to a “cult of rationality,” when in fact constitutional adjudication cannot (or should not) be reduced to the operation of reason. (79) See Urbina (2017). (80) Kumm and Walen (2014).

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Emergence and Diffusion

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

Emergence and Diffusion Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0003

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

In Chapter 2, we explained why a court, once committed to enhancing the effectiveness of the system of constitutional justice it manages, would adopt PA Page 1 of 41

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Emergence and Diffusion as a framework for adjudicating qualified rights. This chapter charts how proportionality has, in fact, developed into a global principle of constitutional law, starting from its beginnings in eighteenth-century German political thought. For proportionality to spread as it has, judges, operating in very different contexts, had to select it as their preferred standard of review, eschewing other options. In the early stages of its diffusion, courts embraced proportionality without justification, albeit with the strong background support of scholars. Later judges that followed down the same path invoked, as persuasive authority, the landmark decisions of the pioneering courts. Today, proportionality has been codified in newer constitutions and treaties, ratifying its consolidation as a bestpractice standard of rights adjudication. Our empirical focus is on (i) how courts have justified their turn to proportionality, (ii) how they subsequently deploy PA, and (iii) how these choices impact law and politics. Courts differ in their deployment of PA, in particular, with respect to the final, balancing, phase. We have found that most courts were initially reticent to strike down important legislation at the balancing stage, relying more heavily on least restrictive means (LRM) testing.1 It appears that judges are reluctant to engage in transparent, full-fledged balancing until they believe that the court can weather charges to the effect that balancing trespasses too much on the domain of legislative authority. Such anxiety is well founded, given that—without exception—when apex courts begin to deploy PA consistently, they dramatically increase their policy-making role and impact. It is simply a truism that the more robustly a court enforces the principle, the more it will be implicated in policymaking. PA diffused through a complex, macro-historical process, involving myriad factors—and thousands of discrete decisions—combining in kaleidoscopic ways, at different times and places, to produced varied outcomes. We do not (p.60) attempt to provide a comprehensive description of this process here. Instead, we simplify matters, making use of the social science relevant to the dynamics of systemic convergence. Proportionality’s diffusion exhibits the basic features of what institutional sociologists call “isomorphism,” which is driven by three principal mechanisms.2 The first is “mimesis”: decision-makers copy from an existing template that has gained status as a recognized, best-practice standard. This mechanism is one of feedback and increasing returns; each powerful apex court that adopted PA made it more likely that peers would do so in the future. The second is legal “coercion”: convergence follows from the imposition of legal obligations by an external authority, coupled with monitoring and enforcement mechanisms. When the courts of treaty-based regimes adopted PA, for example, they generated pressure on the domestic courts of the member states to follow suit. The third is a “normative” mechanism: diffusion and convergence follow from the development of normative consensus among an elite group whose claim to authority is knowledge-based. The proportionality world is dominated by such an epistemic community, an influential network of constitutional scholars and Page 2 of 41

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Emergence and Diffusion judges, who have converged on the view that the proportionality principle is an inherent feature of rights-based constitutionalism. These mechanisms have combined to organize proportionality’s evolution and expansion. Understanding how these mechanisms function on the ground requires sensitivity to local conditions: that is, to history, political context, and agency. The dynamics of jurisprudential isomorphism are both observable and undeniable. Yet, points of convergence should not blind us to another brute fact: the globalization of proportionality is an ongoing and incomplete process. As this chapter demonstrates, there is profound cross-national variation in courts’ uptake of proportionality and how they implement it. While the use of proportionality continues to spread and deepen, we are unlikely to see a future where all constitutional courts use it the same way, for reasons explored below.

I The German Genealogy This section traces the emergence of proportionality in Germany. PA appeared in an early but recognizable form in the work of eighteenth-century legal theorists seeking to reconcile new forms of state intervention in society with individual freedom. Almost a century later, courts began to crystallize these ideas in the form of judicially enforceable tests. Prussian administrative judges firmly embraced the review of the “necessity” of administrative measures in (p.61) the latter half of the nineteenth century. In a third phase, following the establishment of the Federal Republic in 1949, legal scholars proposed using PA to police the limits of constitutional rights under the new constitution, which prioritized rights protection in the wake of the Third Reich’s crimes against humanity. Once the German Federal Constitutional Court (GFCC) had constitutionalized the proportionality principle and added a balancing test (proportionality in the strict sense), PA radiated outward, within Europe and then beyond. We retrace proportionality’s long journey through German legal history, in part, because proportionality, in its modern incarnation, finds its origins there. To be sure, many legal systems at different points in time have articulated analogues to proportionality,3 but the chain of custody for the modern multi-stage test leads back to Germany. Moreover, proportionality’s development within German law reveals patterns that have been important to proportionality’s wider diffusion, three of which are important here. First, scholars play a significant role developing the key concepts and bringing them to the awareness of courts. Second, proportionality establishes a foothold in one area of law—here “police law”—before expanding to others. Third, judges initially are reluctant to place emphasis on the balancing portion of the test, but become more willing to do so after time, as their role as active players in governance processes finds wider acceptance. All three patterns are in evidence in the first chapters of proportionality’s story, and all continue to play important roles into the present.

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Emergence and Diffusion From Theory to Law

Proportionality purports to lay down criteria of legal validity that every act of public authority must meet if it is to be lawful (Chapter 2). Scholars developed the principle precisely with this generic purpose in mind, albeit for use in a political world vastly different from our own. The doctrinal field in which this thinking took place was that of eighteenth-century Polizeirecht (“Police Law”) which encompassed virtually all state measures designed to promote the public welfare, morality, and safety. As state regulation of social and market activity began to grow, leading thinkers confronted the question of how best to mediate tensions between private autonomy and the public good. Private autonomy was highly valued in the social contractarian theories that undergirded public law thinking at this time. Individuals, it was widely held, possessed natural rights that were permanent and prior to the state, but they (p.62) had given up some of their freedom in order to realize collective goods, through the state. The social contract justified the state’s authority, but also fixed its boundaries. Proportionality was given a central place in early theories of Polizeirecht, as a standard governing the legality of state measures. In the succinct formulation of Günther Heinrich von Berg (1765–1843): The first law … is this: the police power may go no farther than its own goals require. The police law may abridge [a person’s] natural freedom … but only insofar as a lawful goal requires as much. This is its second law.4 Von Berg’s laws capture the essence of the suitability and necessity tests: public authorities may invade citizens’ freedoms only in the service of lawful purposes, and their measures may restrict those freedoms no more than necessary. The third distinctive element of PA—proportionality stricto sensu—was elaborated by Carl Gottlieb Svarez (1746–98). No figure is more important in the pre-history of PA than Svarez. A Prussian legal theorist and reformer whose Lectures on Law and the State contained an influential treatment of Polizeirecht, Svarez conceived of the social contract as an incomplete one (Chapter 1). Questions about the permissibility and the scope of administrative interventions, he realized, would be continuously generated as officials deployed their police powers. Only a flexible, principle-based analytical framework could hope to cover most or all such conflicts. Like von Berg, Svarez began with suitability and necessity: [O]nly the well-founded hope of achieving substantial and enduring advantages for the whole can justify the state in restricting the natural freedom of its citizens through police laws. Deduction from the chief principle (Hauptgrundsatz) of the general law of the state: that the state is justified in restricting the freedom of the individual only when it is necessary for the security or freedom of all to exist.5 Page 4 of 41

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Emergence and Diffusion The answer to the ultimate question—how far may officials go in pursuit of important public purposes?—depended on the importance of individual freedoms. Balancing was implied: Only the achievement of a weightier good for the whole can justify the state in demanding from an individual the sacrifice of a less substantial good. So long as the difference in weights is not obvious, the natural freedom must prevail … The [social] hardship, which is to be averted through the restriction of the freedom of the individual, has to be more substantial by a wide margin than the disadvantage to the individual or the whole that results from the infringement.6 (p.63) Under this schema, officials are placed under a fundamental obligation to act proportionally. Svarez’s precepts did not articulate binding, positive law. Rather, they were exhortations to his student, the Prussian Crown Prince Friedrich Wilhelm (later King Friedrich Wilhelm III). Svarez did, however, draft the Prussian General Law of 1794 (Allgemeines Landrecht—ALR), a hugely important codification, in which he inscribed the germ of the proportionality idea. The ALR provides that “[t]he office of the police is to take the necessary measures for the maintenance of public peace, security, and order, and for the elimination of danger to the public or its members.”7 Although not judicially enforceable when enacted, the provision literally wrote a necessity requirement into the emerging system of public law, defining the scope of the state’s regulatory authority. The establishment of administrative courts fundamentally changed the situation. In the 1880s, Prussia’s Higher Administrative Court (Oberverwaltungsgericht) began striking down police measures as excessive, relying on the provision of the ALR just quoted, leading courts in other German states to follow suit.8 Necessity review then quickly became a fixture of administrative law. By the first half of the twentieth century, scholars could identify a cluster of concepts connected to proportionality, variously termed “proportionality” (Verhältnismäßigkeit), “necessity” (Notwendigkeit), “fitness” (Zweckmäßigkeit), “indispensibility” (Erforderlichkeit), “appropriateness” (Angemessenheit), and “suitability” (Geeignetheit), though they did not always agree on how they were related to one another, or should be enforced.9 The bulk of these rulings did not engage in overt interest balancing of the kind imagined by Svarez, but some did.10 Significantly, proportionality review provided a check on state power that was not dependent on constitutional rights; arguably, it acted as a substitute for a justiciable charter of rights.11 The 1871 Constitution of the German Empire contained no charter, and while the constitutions of some of the German states did, rights were not justiciable, even by a constitutional tribunal, where one Page 5 of 41

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Emergence and Diffusion existed.12 Instead, administrative courts assessed the burdens that challenged measures placed on the (unenumerated but presupposed) liberty interests of subjects. (p.64) After the abdication of the Emperor following World War I, the 1919 Weimar Constitution established national constitutional rights for the first time. The Weimar Republic, of course, would be swept away with the Nazis’ rise to power in 1933, but its short life saw the beginnings of a rights jurisprudence in Germany. Although the constitution’s rights were subject to override by ordinary statute, starting in 1921, the Reichsgericht (Supreme Court) claimed for itself the authority to review the conformity of statutes with basic rights, especially property rights, which it characterized as “sacred.”13 At the same time, prominent legal thinkers, including Erich Kaufmann, Gerhard Leibholz, Rudolf Smend, and Heinrich Triepel, began to focus their attention on the nature and function of constitutional rights. Some of this scholarship was conservative and anti-parliamentarian, but not all of it. Smend, for instance, highlighted the capacity of rights to further the integration of state and society. (Smend further developed his ideas after 1945, and Leibholz, who was among the first Justices to join the GFCC in 1951, pushed to have the Court adopt these ideas in its foundational jurisprudence.14) Had the Weimar Republic survived, it is at least possible that a rights-oriented jurisprudence with proportionality doctrines at its core could have come to Germany, in some form, a generation before it did. (Indeed, influenced by German doctrine, the Supreme Court of Switzerland did take steps in that direction during this same period.15) But the coming of the Third Reich brought meaningful judicial review to an end. Constitutionalization and Judicialization

Drafted under the watchful gaze of occupying forces, West Germany’s postwar constitution, the Basic Law of 1949, established a modern system of constitutional justice. The constitution announced a catalogue of rights (Arts. 1– 19) binding the legislative, executive, and judicial functions, (Art. 1.3). Many rights were expressly qualified—for instance, free expression rights “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour” (Art. 5.2)—and no statute was permitted to limit their “essential content” (Art. 19.2). The Basic Law also created a constitutional court, conferring upon it abstract and concrete review powers, which were soon supplemented by an individual complaint procedure (Chapter 1). (p.65) As soon as the Basic Law took effect, a number of (mostly younger) scholars began arguing that proportionality should be recognized as a constitutional principle and reconfigured for the protection of rights. Already in 1950, Herbert Krüger made the case in the leading administrative law journal, underlining proportionality’s administrative law roots.16 Günter Dürig offered an influential conception of constitutional rights as values that penetrate through Page 6 of 41

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Emergence and Diffusion the legal order, and must be balanced against competing interests.17 Rupprecht von Krauss made a book-length case for proportionality as a constitutional principle and first used the term “proportionality in the narrow sense” to distinguish a balancing subtest from the inquiry as a whole (“proportionality in the broader sense”).18 Also influential was Peter Lerche’s 1958 habilitation, published as a book in 1961.19 Lerche carefully distinguished between the necessity test and balancing, but argued that the two were logically connected. Necessity review without more would be ineffectual, since any means could be presented as “necessary” if the end had been defined narrowly enough. Balancing must follow a LRM test “if the principle of necessity is not to lose all substance.” For Lerche, the social function of proportionality extended far beyond the court room. Indeed, he argued that only PA could guarantee the underlying legitimacy of the constitutional Rechtsstaat, given the growing complexity of citizen-state interactions in the modern welfare state. The arm of the state, through public law, would steadily reach deeper into spheres of private life; and compliance with the proportionality principle would provide an appropriately high bar for officials to clear if they were to limit rights. From Svarez to Lerche, then, scholars repeatedly made the case for proportionality as a principle of legitimate governance. And constitutional judges in the new West Germany followed their lead. In 1949, the Bavarian Constitutional Court ruled that it would henceforth use a LRM test to control the “necessity” of state measures, although it cited no supporting authority for its ruling;20 and in 1956, that same court explained that it had derived the principle of proportionality from the nature of the rights guaranteed in the Bavarian constitution, combined with the Rechtsstaat principle.21 The GFCC moved almost as quickly. The Court invoked the general concept of proportionality and some of its elements—suitability, necessity—unsystematically in the 1950s, before arriving at a structured, multi-step analysis that included balancing.22 In the leading case, Apothekenurteil (Pharmacy Case), from 1958, (p.66) the Court distinguished the LRM test from balancing for the first time, as separate, sequential subtests.23 In the years after Apothekenurteil, the GFCC’s use of proportionality became more confident and formalized. In 1963, the Court suggested that it would deploy PA to all cases in which a right is restricted;24 and in 1965, it announced, with no supporting citations, that “in the Federal Republic of Germany, the principle of proportionality possesses constitutional status.”25 In 1968, the GFCC declared proportionality to be a “transcendent standard for all state action, binding all public authorities.”26 Strikingly, even as it embraced proportionality, the GFCC never really explained why it counted as a constitutional principle. As Dieter Grimm (Justice on the GFCC, 1987–99) puts it: “The principle was introduced as if it could be taken for granted.”27 The GFCC has since treated it Page 7 of 41

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Emergence and Diffusion as a master principle of constitutional governance, one that “flows,” as Grimm writes, from “the rule of law” and “the essence of fundamental rights.”28 How the GFCC has deployed PA has changed over time, as Niels Petersen has carefully documented.29 Through the 1960s and most of the 1970s, the Court avoided invalidating legislation in the final balancing phase, finding against the government on suitability or necessity instead.30 Since the late 1970s, however, the GFCC has made balancing the most important part of PA, relying on it in roughly one-third of its decisions overturning statutes. Petersen makes the argument that a court is more likely to rely on balancing the stronger its institutional position is.31 This makes sense, since balancing exposes trustee courts as lawmakers (Chapter 2). When judges seek to avoid deciding cases on proportionality stricto sensu, they frequently smuggle balancing into earlier stages of this analysis, a point we develop further below. Why did PA come to prominence when it did in German constitutional law? We would emphasize several factors. First, as developed by scholars and administrative courts, proportionality appeared tailor-made for the adjudication of the Basic Law’s qualified rights (Chapter 2). By their terms, the rights were subject to limits; and PA, designed to police government overreaching, offered a means for deciding which limitations went too far. Second, as a matter of judicial doctrine, elements of PA were then native to Germany. Public law scholars and judges would be familiar with LRM testing in (p.67) administrative law; and all private law judges had experience with balancing, from the German Civil Code, which had entered into effect in 1900, and required judges to weigh certain interests against others in many situations.32 Third, law professors were not only appointed to the Court, they also tended to dominate it intellectually. In the 1950s, professors untainted by Nazi associations (and therefore appointable) would also have possessed more prestige than any other high court judges. Perhaps most important, the new Federal Republic had firmly committed to a rights-based, constitutional democracy, while the prestige of political parties and legislative authority was relatively low. At the same time, the demands of postwar reconstruction, not least of a developed administrative and welfare state, implied an important role for government. Given these basics, the GFCC could expect that it would continuously be asked to discern the various ways that rights and governmental powers would reciprocally limit one another. The voluminous literature on the “judicialization” of the German legislative process33 focuses on the impact of the Court’s rights jurisprudence on legislative decision making. The consistent use of PA reinforces judicialization, in effect, by “teaching” lawmakers how to take rights considerations into account when they make policy. PA functions as an important discursive interface between the Court and the legislature. Today, because lawmakers know that the Court is likely to review an important statute, they are careful to build a record of its proportionality. For its part, the Court has produced a relatively detailed set of Page 8 of 41

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Emergence and Diffusion prescriptive guidelines about how legislators and administrators ought to behave, if they wish to exercise their authority lawfully. At times, the Court has preempted policy space altogether. But in most domains, the Court has been careful not to foreclose legislative discretion; it does so by tracing “zones of proportionality” within which lawmakers possess meaningful choice (Chapters 2 and 5). In the shadow of PA, and particularly balancing, German lawmakers engage in constitutional deliberation as a matter of course. Crucial to these outcomes is the fact that all major political parties and branches of government agree that the GFCC is the authoritative interpreter of the Basic Law, and that constitutional rights—and the principle of proportionality—are binding upon the exercise of all public authority. Migrations

Since the 1970s, proportionality has migrated out of Germany, gradually colonizing civil and common law systems alike, on every continent. One vector of German influence has been through domestic transitions to constitutional (p. 68) democracy in formerly authoritarian states. The German experience is copied precisely because it is viewed, globally, as an unambiguous success. The new Spanish Constitutional Tribunal (1980) quickly adopted the German approach to adjudicating rights, as did nearly all of the states in post-Communist Europe after 1990.34 In democratic transitions beyond Europe—most notably in Colombia, South Africa, Taiwan, and Korea—constitutional courts too embraced PA, expressly citing to the German Court’s jurisprudence. Proportionality was institutionalized as a pan-European constitutional principle through pressure exerted by the courts of the European Union and the European Convention on Human Rights. Both developed proportionality as an unwritten, general principle of law, with no justification given, under German influence. In the 1970s and 1980s, the Court of Justice of the European Union relied on PA to adjudicate the free movement of goods provisions of the Treaty of Rome (1957), then the most important source of litigation, with momentous effects.35 PA was then gradually extended and applied to cover virtually every dispute involving rights, and the principle of non-discrimination, in particular. By 1989, the Court could declare that: the principle of proportionality is one of the general principles of [EU] law. [M]easures … are lawful provided [they] are appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question. Of course, when there is a choice between several appropriate measures, the least onerous measure must be used.36 For their part, if at times grudgingly, the Member States ratified these moves. In 2009, they added a Charter of Fundamental Rights to the treaty system, Article 52 of which requires proportionality assessment:

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Emergence and Diffusion Subject to the principle of proportionality, limitations [on rights] may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others. The upshot is that the national judges of the twenty-eight member states must use PA whenever they adjudicate disputes in domains governed by European Union law. The European Court of Human Rights (ECHR) has proven to be an even more potent force for proportionality’s diffusion. Most Convention rights are qualified by limitation clauses. In the 1980s, the Strasbourg Court began to use proportionality to adjudicating freedom of expression cases. Its diffusion was all but guaranteed when, beginning in 1999, the Court began to require national judges to use PA whenever they adjudicated the qualified Convention rights (to privacy, family life, conscience and religion, expression, assembly, (p.69) and association). Failure to do so, the Court insisted, would constitute a breach of an individual’s right to an effective judicial remedy.37 Since 2000, PA has gradually become a master tool for managing the evolution of the Convention system, which now covers forty-seven national systems of rights protection, and more than 800 million people (Chapter 6).

II The Death of Parliamentary Sovereignty Proportionality’s success in Germany is dramatic and important, but perhaps not that surprising. After all, the Basic Law represented a radical break with the Nazi past and inaugurated a new regime dedicated to the protection of human rights. It established a new Constitutional Court, and tasked it with defending the constitution’s normative superiority over ever other official act, including legislation. Eminent jurists staffed the early court, bringing with them both moral prestige and intellectual authority, which proved useful to stand up to the political branches when necessary.38 Proportionality was also a familiar feature of German law, well suited to limitation clauses. The situation looked very different in the so-called “Westminster” systems, which are based on precepts of legislative sovereignty. In such systems, judicial review of statutes and constitutional justice itself, traditionally, had no place. Even in the administrative context, where the invalidation of statutes is not at stake, deferential standards of review (e.g., Wednesbury unreasonableness) were the order of the day. And yet, a measure of meaningful rights review has now come to many Westminster systems, along with proportionality (Chapter 1). Canada

The Supreme Court of Canada (SCC) adopted PA to adjudicate the qualified rights enumerated in the Charter of Rights and Freedoms. Prior to the Charter’s enactment in 1982, Canada’s constitution—the British North American Act (1867)—contained only a handful of enforceable rights. In 1960, the Parliament Page 10 of 41

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Emergence and Diffusion adopted a statutory Bill of Rights that applied to national but not provincial law. The Bill of Rights was roundly considered a failure, not least because the SCC took a deferential approach to enforcing it. The Charter, by contrast, is a constitutional document containing an extensive catalog of rights binding on all officials, both provincial and national. It opens with a general limitation (p.70) clause, Section 1, which “guarantees” rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In Big Mart (1985), one of the first cases arising under the Charter, the SCC avoided the question of how it would approach Section 1, although it signaled in dicta that “a form of proportionality test” might be appropriate in important cases.39 It turned to proportionality a few months later, in Regina v. Oakes (1986). At issue was a provision of the Narcotics Act that created a rebuttable presumption that a person found to be in possession of drugs was, in fact, trafficking the drugs. Defendants unable to rebut this presumption would be subject to the penalties for trafficking. Mr. Oakes claimed that the provision violated his right to the presumption of innocence under Section 11(d) of the Charter, which directed attention to the statute’s conformity with Section 1. Chief Judge Dickson, writing for the Court, broke the inquiry into two parts. The threshold question focused on proper purpose: “at a minimum, that [the] objective relate to concerns which are pressing and substantial in a free and democratic society.” If the statute satisfied this condition, its defenders would then bear the burden of showing “that the means chosen [were] reasonable and demonstrably justified.” The Court described the inquiry “as a form of proportionality test,” of which there were “three important components”: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance.”40 The court concluded that the Narcotics Act provision failed to satisfy the rational connection (suitability) test: “it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics.” The adoption of proportionality, as opposed to a more deferential approach to Section 1’s limitations clause, meant the effective end of parliamentary Page 11 of 41

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Emergence and Diffusion sovereignty in Canada. This represented an extraordinary change, albeit one that many in Canada welcomed. The Section 1 formulation “reasonable limits … as can be demonstrably justified in a free and democratic society” was introduced in the drafting process over concerns that the original language (reasonable limits “as are generally accepted in a free and democratic (p.71) society with a parliamentary system of government”) would invite too much deference into Charter review.41 Normative and mimetic drivers of isomorphism were also in play. The scholarly community supported a higher hurdle for rights violations than a reasonableness standard. Some noted the textual affinity between Section 1 and limitation clauses in the ECHR (ch. 6), leading Walter Tarnopolsky to advise that “resort might be made to [European] jurisprudence … for guides to such reasonable limits.”42 Barak, in his analysis of the diffusion of PA, suggests that the SCC followed the commentary of Peter Hogg, one of Canada’s leading constitutional jurists, who argued that the Court “will have to follow” in the path of the European Court of Human Rights.43 But the Oakes ruling made no reference to authority; as in Germany, the principle and its doctrinal corollaries were simply asserted. PA quickly became the obligatory approach to the limitation clause. In Oakes, the Court stipulated that justification of rights-limiting statutes involve three “requirements”: (a) there must be a rational connection between the measures and the objective they are to serve; b) the measures should impair as little as possible the right or freedom in question; and c) the deleterious effects of the measures must be justifiable in light of the objective which they are to serve.44 Some three years later, in Irvin Toys (1989), the court would declare that Oakes amounted to “well established” precedent.45 While the SCC has recognized a balancing stage of analysis (in Canada, sometimes termed “proportionality of effects”), the Court tended to avoid resolving cases at that step until quite recently. According to Niels Petersen, through 2015, only 6 percent of successful Charter challenges resolved under Section 1 had rested on balancing.46 Simplifying a complex set of practices, the SCC has routinely engaged in what Petersen calls “implicit balancing”: smuggling balancing techniques into necessity analysis to avoid moving to the formal balancing stage.47 In Wholesale Travel (1999), for example, the SCC struck down a strict liability prohibition against false and misleading advertising, given that misleading advertisements could be corrected once the party was made aware of the error, although the Court acknowledged that the alternative might be less effective as a deterrent.48 These practices provoked

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Emergence and Diffusion consternation,49 not least, because they reduced PA’s transparency, and were at odds with the standard procedure, at least in form. (p.72) In 2009, with Hutterian Brethren, the SCC openly grappled with the problem.50 That ruling rejected a challenge, on freedom of religion grounds, brought by a small sect objecting to a requirement that all licensed drivers be photographed. Both majority and dissent engaged in extensive balancing analysis, and both attested to the need for having a separate, ultimate balancing stage.51 As Justice Abella wrote, “most of the heavy conceptual lifting and balancing ought to be done at the final step – proportionality. Proportionality [balancing] is, after all, what s. 1 is about.”52 In 2016, with KRJ, the Court reaffirmed the centrality of balancing to the whole exercise, explicitly endorsing Aharon Barak’s view that the final phase of PA lies at “the very heart of proportionality.”53 In the greater Commonwealth family of legal systems, the SCC has been an important agent of proportionality’s diffusion. The apex courts of Ireland,54 New Zealand55 the UK,56 and South Africa, all cited to Oakes while absorbing PA in the 1990s. The result has been that most rights claims grounded in the constitution (Ireland, South Africa) or a statutory bill of rights (New Zealand, the UK) trigger necessity review and an explicit balancing test, supplanting reasonableness tests. Justices on the Indian Supreme Court are openly debating how to integrate proportionality into a complex rights jurisprudence that predates Oakes.57 Australia, too, is now experiencing a “proportionality moment.”58 Although its constitution contains only a small number of rights (e.g., the right to vote), and no charter, the Australian High Court (the court of final appeal) has recognized a limited number of implied fundamental rights. In 2015, after a decade of increasingly intensive debate about the merits of PA, that court deployed PA in a case involving the implied right of political communication, citing to Barak’s scholarship.59 In India, after long, often contentious debates on how to integrate proportionality into a complex rights jurisprudence that predates Oakes,60 justices on the Indian Supreme Court have recently arrived at what appears to be consensus on the centrality of PA to rights adjudication. In an important (p. 73) dictum undergirding a 2016 opinion, adopted by a five-member bench, the Court embraced what it called “the modern theory of constitutional rights” – citing to, and summarizing, Barak’s book61 – which recognizes nearly all rights as qualified, “related” and integrative, and to be applied through proportionality balancing. Indeed, it stressed, “democracy” and “rule of law” are “based on a [proper] balance between constitutional rights and the public interests … keeping in mind the relative social values of each competitive aspects [sic] when considered in proper context.”62 The Court then embraced the Oakes test, which

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Emergence and Diffusion it described as “beautifully captur[ing]” the “essence of the Doctrine of Proportionality.”63 Subsequent rulings have consolidated this position.64 Israel

Israel is one of three countries in the world today without a codified, entrenched constitution.65 Following the failure of the Constituent Assembly to draft a constitution in 1949, the Assembly renamed itself the Knesset, a parliament that operates largely on the classic precepts of the Westminster model. Although a charter of constitutional stature was never formally enacted, the Knesset did provide statutory protection for rights with the 1992 Basic Law: Human Dignity and Freedom. With no entrenched constitution and a heritage of legislative sovereignty, Israel would seem an unlikely place for an active rights jurisprudence to develop. Nonetheless, the Supreme Court of Israel (SCI) has built an effective system of constitutional justice (Chapter 1). Today, the SCI applies PA as rigorously and consistently as any court in the world. The seeds for this jurisprudence were planted even before the enactment of the Basic Law: Human Dignity and Liberty. Sitting as the High Court of Justice, the SCI hears administrative law challenges as well as constitutional claims, and so has presided over the development of an extensive body of administrative law. Israeli scholars recognized a form of proportionality review in Israeli administrative law case law,66 and made the connection between the domestic doctrine and the internationally recognized standard.67 The review of military actions in particular has been an important engine for the development of PA in Israel, even before the Basic Law took effect. Regulation 119 of the Defense (Emergency) Regulations (1945), a holdover (p.74) from the days of the British Mandate, gives military commanders wide latitude to respond to terrorist acts. In cases challenging these responses as “excessive,” the Supreme Court adopted a simplified form of proportionality analysis, first using the language of “reasonableness.”68 Turkeman v. Minister of Defense (1993) is typical.69 That case raised a challenge to a military commander’s order to demolish the home of a West Bank man who shot two Israelis. The house belonged to his mother, who shared it with seven sons, including one with a family of his own. The military had ordered the house razed after having decided that it was impossible to demolish only the part occupied by the offender. Writing for the Court and following a line of jurisprudence consolidated in the 1980s, Justice Barak found the measure unreasonable. “Every authority, no matter how extensive, has to be exercised in a reasonable way,” he wrote, insisting that the response must always correspond to the gravity of the offense. The Court found the demolition order to be “disproportionate,” and ordered that two rooms be sealed off, so that the married son could continue to live there. Although the Court did invoke the principle of proportionality in Turkemen, it did not refer to foreign law.

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Emergence and Diffusion In the years that followed, scholars helped to formalize proportionality, and to establish it as the framework for resolving claims under the Basic Law. In 1994, Itzhak Zamir, a law professor and a justice of the Court (1994–2001), published the first important piece to focus on the connections between proportionality in German and Israeli administrative law.70 Appearing the same year, the commentary of Aharon Barak (a law professor and a member of the Court from 1978–2006) on the 1992 Basic Law explicitly advocated adoption of the Oakes approach to the law’s limitation clause.71 In their capacity as justices, both Zamir and Barak worked to bring proportionality into the Court’s jurisprudence as a principle of legality itself. The decisive turning point came in United Mizrachi Bank (1995). In that case, creditors challenged a statute permitting a special administrative body to cancel certain debts, pleading the right to property guaranteed in the Basic Law. The first question for the Court concerned its own powers, which it held to include the power to strike down legislation that violated the Basic Law of 1992. Although the Knesset had enacted the statute using ordinary legislative procedures, the Court ruled that its catalogue of fundamental rights enjoyed constitutional rank. In consequence, the Knesset could only restrict the scope of qualified rights in conformity with the statute’s limitation clause (Section 8), which stipulates that “[t]here shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” Writing for (p.75) himself and six other members of the Court just months after his elevation to Chief Justice, Barak held that the clause laid down a constitutional requirement of proportionality. Barak invoked scholarly and comparative materials to demonstrate that ample precedent existed, within and beyond Europe, for the passage of proportionality from administrative to constitutional law. Citing to Oakes and to German authority, Barak then applied PA to the statute, upholding it. Since Mizrachi Bank, the Court has intensively relied on PA to deal with its most controversial cases, many of which have concerned anti-terrorist measures to be applied outside of Israeli borders. The most famous of these, the “Security Fence” (Beit Sourik, 2004) ruling, demonstrated just how much bite PA has attained in Israeli law. The case raised a challenge to plans to construct the fence that now impedes access to Israel from the West Bank, as a means of combating terrorism. The planned route for the fence would require the seizure of lands, separate thousands of West Bank farmers from their fields, close access to water sources, and block traditional routes into Israel that Palestinians used to get to their places of employment. The petitioners claimed violations of Israeli administrative law and international law, including a long list of fundamental human rights. Writing for a unanimous three-justice panel, Barak found that the plans satisfied the suitability and the necessity subtests: the fence was rationally connected to the goal of security, and no alternative route that infringed on Page 15 of 41

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Emergence and Diffusion human rights less could provide the same (high) level of security preferred by the military command. While noting that military specialists differed on the route the fence should take, the Court refused to second-guess the military command’s decisions, expressly deferring to the latter’s expertise and good faith. The Court then moved to the balancing stage, with this dramatic prelude: The military commander is the expert regarding the military quality [necessity] of the separation fence route. We are experts regarding its humanitarian aspects. The military commander determines where, on hill and plain, the separation fence will be erected. That is his expertise. We examine whether this route’s harm to the local residents is proportional. That is our expertise.72 The Court thus set the stage for consideration of the relative harms of available options for routing the fence. The ruling is the product of a delicate and complex exercise in “relative balancing.” Because the intensity of the harms to be visited on inhabitants varied significantly from one village and parcel of land to another, the inquiry too had to be sensitive to local conditions at each strategic point along the proposed route. At five such locations, the Court found that the benefits to security—compared to alternatives—were not sufficient to justify the injuries (p. 76) to inhabitants. To take just one of these findings, which affected 10 kilometers of the plan, Barak held that: The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference between a fence that separates the local inhabitants from their lands, and a fence which does not separate the two (or which creates a separation which is smaller and possible to live with).73 The Court then ordered the command to renew its efforts “to find a route that will fulfill the demands of proportionality,”74 in particular with reference to alternatives that had been on the table during the consultation process. Perhaps because PA was made to do so much work in the Security Fence ruling, the Chief Justice went to great lengths to justify it. Indeed, long sections of the ruling were clearly meant to “teach” the basics of PA to officials, advocates, and the informed public, including international observers. Barak describes proportionality as a “basic principle” of law that “transverses all branches of the law”; it is part of the “universal solution” to the problems of balancing when liberty interests collide with security concerns; and he stressed its doctrinal manifestations across diverse legal systems, including international law, common law, civil law, and Israeli law.75

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Emergence and Diffusion South Africa

The mid-1990s were years of rapid constitutional development for South Africa, and the constitutionalization of proportionality was among the major outcomes. The process was familiar in some respects and distinctive in others. The German and Canadian Courts adopted the principle without bothering to justify the move; as we have argued, the capacity to take decisions that will alter the constitutional secondary rules inheres in trusteeship (Chapter 1). In Israel, the SCI recast itself as a trustee court through its jurisprudence on the Basic Law: Human Dignity and Freedom, and its own assertions of the primacy and enforceability of that statute over every other sub-constitutional act, including ordinary statutes. In South Africa as elsewhere, we find political rulers deploying a trustee court to manage problems of incomplete contracting and commitment (Chapter 1). But the South African case is all but unique, in that officials established the trustee—the Constitutional Court of South Africa (CCSA)—before a constituent assembly had begun drafting the post-Apartheid constitution. The Court then used its interim powers to induce the (p.77) founders to codify proportionality balancing in the new constitution, which entered into force in 1997. In 1991, a diverse set of twenty-six unelected groups met to discuss the construction of a new constitutional order for South Africa. Acknowledging that they lacked the democratic legitimacy to draft the text themselves, they nonetheless generated an interim framework meant to bind the future constituent assembly. The framework (i) required the election of the assembly, (ii) enumerated a set of constitutional principles, including democracy, separation of powers, fundamental rights, and constitutional judicial review binding on the assembly, and (iii) created a constitutional court with the authority to “certify” that the new constitution conformed to these principles, and to hear ongoing constitutional cases. Following elections, the Constituent Assembly did indeed produce a draft (in May 1996), which was then dutifully submitted to the Constitutional Court. In its ruling (September 1996),76 the Court declared the draft incompatible with the principles on nine major counts, including failure to guarantee the primacy of the constitutional law, and neglecting to entrench fundamental rights strongly enough. The Assembly dutifully revised the text in line with the Court’s ruling, which the Court certified (October 1996). Of interest here is the CCSA’s approach to the charter of rights during the period governed by the interim arrangements (1994–6). Initially, the Court resisted applying PA to Section 33, which announces a limitation clause reminiscent of Canada’s. In its first case on the issue, State v. Zuma (1995), the Court confronted, as in Oakes, a constitutional challenge to a “reverse onus” provision that placed on criminal defendants the burden of showing police confessions to be involuntary. The Court found the provision unconstitutional, but not on the basis of one of the subtests comprising PA.77 Although it Page 17 of 41

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Emergence and Diffusion acknowledged that PA “may well be of assistance to our courts in cases where a delicate balancing of individual rights against social interests is required,” the Court declared that it had “no reason … to attempt to fit our analysis into the Canadian pattern.”78 The Court embraced proportionality in its very next case involving the limitation clause, which it issued shortly after the justices had spent a week in Germany as guests of the GFCC. State v. Makwanyane (1995)79 concerned a challenge to the constitutionality of the death penalty. Chief Justice Arthur (p.78) Chaskalson characterized proportionality balancing as intrinsic to the charter’s limitation clause: The fact that different rights have different implications … for “an open and democratic society based on freedom and equality” means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. The Court then enumerated the factors that bear on PA: In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question. Chaskalson’s opinion explicitly referenced foreign sources of authority for the move, discussing the role of PA in German, Canadian, and European law, and noting differences and similarities with the South Africa context. He then turned to consider the death penalty’s proportionality. The putative objects of the statute—deterrence, prevention, and retribution—were weighed against “the factors, which taken together, make capital punishment cruel, inhuman and degrading: the destruction of life, the annihilation of dignity, the elements of arbitrariness, inequality and the possibility of error in the enforcement of the penalty.” Although the Makwanyane formula treats proportionality as a single-stage, multi-factored balancing, it also expressly contains reference to the subtests of proper purpose, suitability, and necessity. In the end, the Court invalidated the death penalty. Officials had not shown that the death penalty deterred more effectively than the less restrictive means of life

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Emergence and Diffusion imprisonment; and retribution could not be accorded much value in a postapartheid constitutional order, which was expressly dedicated to reconciliation. Following the ruling, the constituent assembly incorporated, virtually word-forword, the factors conditioning balancing, named in Makwanyane and repeated in subsequent rulings,80 into its revision of the imitation clause, now Section 36(1) of the South African Constitution. Thus, the Constitution’s entry into force enshrined proportionality, which thereafter became a cornerstone of the CCSA’s jurisprudence. Writing in 2003, Justice Albie Sachs declared that “proportionality and balancing are at the heart of constitutional (p.79) litigation in our country,” and estimated that as many as three quarters of the Court’s cases require the justices to engage in balancing.81 The Court has used proportionality to resolve a long list of high profile disputes, including constitutional challenges to the corporal punishment of juveniles, felon disenfranchisement, a prohibition on cannabis as applied to Rastafarians (who use it for religious purposes), same-sex marriage rights, and provisions constraining defendants’ rights in criminal cases. Two features of the CCSA’s proportionality jurisprudence are worth noting. First, the Court does not typically follow a predefined sequence of subtests, as its peers in Germany, Canada, and Israel do. Rather, it presents Section 36(1) analysis as an overall assessment of the reasonableness of a measure, to which the subtests are relevant. The Court characterizes the entire analysis as a form of balancing: In essence, the Court must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list.82 Second, the CCSA rarely uses an explicit balancing analysis to invalidate legislation. Since Makwanyane, Petersen finds, the Court has used balancing to overturn only three statutes, all involving criminal law or criminal procedure.83 Nevertheless, the Court routinely engages in implicit balancing, and balances openly in cases involving rules of customary or common law.84 Manamela (2000) offers an example of implicit balancing. A criminal statute contained a reverse onus provision: persons found in possession of stolen goods were presumed guilty of receiving stolen property, unless they could prove they had reasonable cause to believe they acquired the goods from the rightful owner. The clause was challenged as inconsistent with the presumption of innocence. The Court held that the clause was unconstitutional, reasoning that there was a less restrictive means to the same end, of reducing the trade in stolen goods. Namely, the law could impose on defendants the evidential burden of establishing that they did not know the goods were stolen. An evidential burden is less restrictive because defendants escape liability so long as they can raise a reasonable doubt as to their intent. But, as the dissent pointed out, an evidential burden is likely less Page 19 of 41

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Emergence and Diffusion effective than a reverse onus clause in reducing the trade in stolen goods, precisely because it makes it easier for guilty parties to evade conviction.85 Petersen attributes the Court’s reluctance to invalidate legislation by openly balancing to its somewhat delicate (p.80) institutional position in a political system long dominated by a single party, the African National Congress (ANC), with no serious rivals.86 As in Canada and Germany, the Court recognizes that the necessity analysis permits flexible expressions of de facto deference to legislative judgments, within a larger doctrinal context of robust scrutiny.87 At the same time, the Court expects lawmakers to consider the constitutional issues as part of the policymaking process. Indeed, in Manamela, Justices O’Regan and Cameron, dissenting, noted that: [T]he problem for the Court is to give meaning and effect to the factor of less restrictive means without unduly narrowing the range of policy choices available to the Legislature in a specific area. The Legislature when it chooses a particular provision does so not only with regard to constitutional rights, but also in the light of concerns relating to cost, practical implementation, the prioritization of certain social demands and needs and the need to reconcile conflicting interests. The Constitution entrusts the task of legislation to the Legislature because it is the appropriate institution to make these difficult policy choices. When a court seeks to attribute weight to the factor of “less restrictive means,” it should take care to avoid a result that annihilates the range of choice available to the Legislature. In particular, it should take care not to dictate to the Legislature unless it is satisfied that the mechanism chosen by the Legislature is incompatible with the Constitution.88 How seriously the Parliament has taken the task of providing independent, deliberative judgments on the constitutional issues raised by legislation is a subject of debate. Some have faulted the Parliament generally for being too deferential to the executive, and inhospitable to opposition views.89 As discussed in Chapter 5, perceptions of legislative performance may shape how the Court interacts with the Parliament.

III Proportionality’s Empire As new systems of constitutional justice have taken root and grown in effectiveness, the domain of proportionality has expanded. Today, the principle is a constituent element of a rights-based constitutionalism whose reach is truly global. In some countries—including Canada and Israel—the introduction of a charter of rights combined with the adoption of PA to transform a pre-existing legal order. In most states, however, PA migrated in the wake of a transition from one-party authoritarian rule to a more pluralist constitutional democracy. In adopting proportionality, courts position (p.81) themselves as supervisors of Page 20 of 41

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Emergence and Diffusion these transitions, while upgrading their capacity to enhance systemic effectiveness. The fact that national systems have converged on the recognition of proportionality’s status, as a general principle of constitutional law, has not extinguished cross-national diversity in its use. Proportionality may be the lingua franca of effective rights protection, but it is spoken with different dialects, to different audiences, and often for different purposes. There also remains resistance to PA, typically in systems where weak high courts cling to traditional standards of review that are deferential to executives and legislators. But resistance does not take place in a normative vacuum. Today, few if any important courts are ignorant of proportionality’s status as a best-practice standard, making continued resistance that much more difficult to justify. Expansion

Over the past three decades, PA has accompanied most successful transitions to rights-based constitutional democracy, including in Asia and Latin America. As discussed in Chapter 1, one of the most important findings of comparative constitutional law scholarship is that, in the absence of a competitive party system, courts find it extraordinarily difficult to sustain robust rights protection. In contrast, the world’s most powerful courts are embedded in competitive party systems, the South African Court, arguably, being the only exception. Movement away from one-party rule opens space for constitutional courts to exert their authority. Adopting PA has been an important part of these efforts. Asia became fertile ground for proportionality in the late 1980s, with the erosion of one-party rule in South Korea and Taiwan. In those countries, trustee courts self-consciously deployed PA to bolster their positions as caretakers of new, still fragile democracies. Their success thoroughly debunks the once prominent view that Asian states neither needed nor had the capacity to build effective systems of judicial review and rights protection.90 Since its founding in 1988, the Constitutional Court of Korea (KCC) has handed down thousands of decisions, including hundreds of rulings of unconstitutionality,91 and enjoys broad public approval.92 The Court’s achievement is all the more notable given South Korea’s political history. Until the mid-1980s, the country was led by a succession of military governments that showed little tolerance for political opposition or judicial oversight. When judges insisted that the government compensate injured servicemen in (p.82) the 1970s, the President initiated constitutional reforms that increased his power while limiting that of the courts.93 The fundamentals of the situation changed only in 1988, once public pressure led the regime to adopt a sweeping revision of the constitution. Chapter Two of the Constitution of the Sixth Republic features both a roster of liberal rights and a general limitations clause (Art. 37), which provides that rights may be restricted by statute only “when necessary for

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Emergence and Diffusion national security, the maintenance of law and order, or for public welfare,” so long as “no essential aspect of the freedom or right” is violated. The KCC wasted little time in consolidating proportionality, which had first appeared in the 1960s, in a rudimentary form, in decisions of the Supreme Court reviewing administrative acts.94 Building on this legacy, the KCC ruled in 1992 that all legislation limiting basic rights must comport with the proportionality principle, which, according to the Court, derived from the rule of law principle.95 The implications of this move were important, including for the KCC’s jurisdiction. While the KCC lacked jurisdiction to review individual administrative actions, it could review the statutes that govern administration for their conformity with proportionality, and individual administrative proceedings could give rise to these challenges. As elsewhere, the KCC has at times shown reluctance to balance openly, leading it to smuggle balancing considerations into the proper purpose and necessity phases. In 1997, for example, it heard a challenge to Article 809 of the Korean Civil Code, which prohibited marriage between men and women with the same surname and same ancestral home.96 A plurality concluded that the measure lacked a legitimate purpose, but in reaching that conclusion, considered both the benefits of the statute and the cost in terms of infringing the constitutional right to pursue happiness (a general liberty right). With regard to transition politics, the KCC has regularly donned the mantle of referee in disputes among political parties and organs.97 The most high-stakes case concerned the impeachment of President Moo-Hyun Roh in 2004.98 Roh was accused of campaigning in legislative elections, thereby contravening a statutory ban on electioneering by the President. After the National Assembly mustered the two-thirds supermajority necessary to impeach Roh, the issue moved to the KCC. While the Court found that President Roh had violated both the statute and the Constitution, it blocked the use of the impeachment procedure, on proportionality grounds. Assessing the permissibility of impeachment, the Court declared, requires “balancing the degree of the negative impact on or the harm to the constitutional order caused by the violation of law” against the (negative) effects to be incurred “by (p.83) the removal of the respondent from office.”99 In its ruling, the Court emphasized its concern for the stability of Korean democracy, not Roh’s fate, concluding that impeachment would both thwart the will of the voters and disrupt government processes. Impeachment could be triggered only by misdeeds that threatened the “basic order of free democracy.”100 The role of the KCC in “judicializing” Korean politics has been the subject of careful empirical research. Lin, analyzing the impact of a long series of rulings in diverse areas of law, has demonstrated that the Korean Court has become a “crucial actor in Korean politics by exercising the power of judicial review Page 22 of 41

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Emergence and Diffusion progressively.” It has done so, in the context of robust pluralist politics, bolstered by the support of public interest lawyers and the citizenry more generally. Today, he concludes, the KCC “is not only a guardian of fundamental rights, but also a policy-maker that has intervened in both ordinary politics and mega-politics.”101 Taiwan also experienced a dramatic democratic transition in the late 1980s, after four decades of single-party rule and martial law. Its constitution, which dates from 1947, proclaims a roster of rights and a limitations clause (Art. 23) providing that rights could only be restricted by law when “necessary to prevent infringement upon the freedoms of others, to avert an imminent danger, to maintain social order, or to promote public welfare.”102 The constitution also created the Taiwan Constitutional Court103 (TCC) with explicit authority to invalidate legislation for violating the charter. Notwithstanding these formal features, the TCC provided no meaningful review of government action during the period of martial law and political dominance of the Kuomintang party (KMT). When the TCC flexed its muscles in the 1950s, the KMT simply curtailed its jurisdiction.104 Since the end of martial law (1987), the Court has steadily developed what is now an imposing rights jurisprudence. As in Korea, a simple form of PA appeared in Taiwanese public law decades before the democratic transition.105 In 1994, the Administrative Court declared proportionality to be a general principle of constitutional rank; and, two years later, the TCC officially adopted PA in a challenge to the government’s use of eminent domain powers, deriving it from the general limitation clause (Art. 23). While the TCC initially limited the scope of proportionality review to necessity analysis, the Court developed a complete, (p.84) four-step version of PA (proper purpose; suitability; necessity; and proportionality in the strict sense) in important cases decided between 1999 and 2002.106 In the 1994–2013 period, the TCC applied PA in about half of all cases decided.107 The TCC is not always consistent or clear in how it uses PA. It does not always use the same subtests, or apply them in the same order, and has been criticized by Taiwanese scholars for this.108 In 2004, the Court established three different versions of PA—a loose, middle, and strict standard—but the justices do not always agree on which one to apply.109 The TCC also sometimes balances the benefits of the measure under review against the harms to rights holders at earlier stages of PA. A 1998 decision, for example, invalidated an administrative measure that punished violators of gun possession laws with a mandatory threeyear term of forced labor, resting on suitability analysis. On the way to its conclusion, the Court also folded balancing into its characterization of the measure’s objective, stating that the measure must be “rehabilitative and … balance between the limitation of a violator’s constitutional right of freedom to move and public welfare.”110 Still, for all of the vagaries of its application,

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Emergence and Diffusion proportionality clearly “constitutes the most favored … standard of judicial review … both academically and practically.”111 The TCC has been an active court, and its rulings have had significant influence on Taiwanese democracy.112 The annual number of petitions received and judgments handed down exploded in the fifteen years following the end of martial law, and remains high.113 Rulings on due process, civil liberties, criminal procedure, and labor rights114 reveal a rights-favoring approach.115 Indeed, among other indicators of judicialization, the Court has established “new rights,” through interpretation of Article 22 of the Constitution,116 including the right to marry, the right to choose one’s own name, freedom of sexual behavior, freedom of contract, information and privacy, and the right to reputation. In 2017, the TCC became the first Asian court to rule that homosexual couples possessed a constitutional right to enter into same-sex marriages, applying what it called “heightened scrutiny” rather than marching through PA.117 The TCC has also intervened in high-stakes political disputes to keep the transition to pluralist democracy on track.118 (p.85) Hong Kong has experienced a different sort of transition, from UKdependent territory to a special administrative region (SAR) of China. Hong Kong’s higher courts operate in a uniquely challenging environment. SAR status gives them a measure of autonomy, but within parameters that are ultimately set by Chinese authorities. The responsibility for interpreting Hong Kong’s Basic Law (1990), which was drafted before the handover, is shared among Hong Kong’s courts and the Standing Committee of the People’s National Congress (SCPNC) in Beijing. Hong Kong’s highest court, the Court of Final Appeal (CFA), has built a jurisprudence that provides some meaningful protection of rights. At the same time, the CFA knows that it must avoid producing results that the authorities in Beijing might find intolerable. The Basic Law guarantees fundamental rights but not judicial review of statutes. Nonetheless, in 1992, the Court of Appeal (a second-tier court) introduced PA in its first rights case, importing it from Canada.119 The CFA followed suit.120 Beginning in 2005, the CFA began to deploy PA more robustly, in Kwok Hung Leung,121 a case concerning a freedom of assembly challenge to an ordinance restricting public processions. In its ruling, the Court justified its embrace of proportionality review in global terms, highlighting its adoption in “many jurisdictions,” including the UK, the European Court of Human Rights, Canada, and South Africa. While the court concluded that “the nature of the proportionality principle is essentially the same,” it opted for a two-part test featuring suitability and necessity. Following a careful analysis of the statutory provisions, the Court concluded that the ordinance did not fail a LRM test, while finding it deficient on other grounds.

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Emergence and Diffusion In subsequent cases, the CFA has invalidated as disproportionate a number of important government measures.122 However, the Court has carefully calibrated its moves to avoid direct confrontation with Beijing on critical issues. The divergence in how the Court handled two cases involving electoral challenges illustrates the point.123 In Charles Mok (2010), the CFA struck down a provision that barred appellate review of judicial rulings on electoral disputes in Legislative Council races as a disproportionate restriction on its own function as a court of final adjudication.124 But in Leung Chun Ying (2013),125 a high-profile case brought against a candidate acceptable to Beijing by one who was not, the Court declined to review a seven-day limitation on bringing challenges to Chief Executive elections.126 In dismissing the appeal, the CFA distinguished Charles Mok, declining to engage in PA altogether. (p.86) So far, Hong Kong’s CFA has largely succeeded in avoiding head-on confrontations with Beijing over fundamental governance issues, while managing to raise standards of rights protection in less sensitive domains. The challenge facing the Court will likely increase, as political controversy concerning Hong Kong’s relationship to Beijing expands. Over the last three years, Hong Kong has been roiled, first by a white paper asserting more central authority over Hong Kong’s affairs (including the appointment of judges)127 and then by Beijing’s treatment of two elected members of the Legislative Council, who pointedly inserted criticisms of China into their oath of office.128 The Court of Appeal affirmed the disqualification of the Legislative Council members on the basis of a SCNPC interpretation of the Basic Law. Navigating these turbulent waters will require great care in the years ahead. The most recent expansion within Asia has taken place in Malaysia, where high courts have adopted PA while struggling to give it bite. Since independence in 1957, the Barisan Nasional party has governed Malaysia, often with an iron fist. The Supreme Court mainly adopted a deferential posture, despite having jurisdiction over a charter of rights. In the late 1980s, however, the Court began to rule against the government, overturning a ban on a publication critical of the government129 and granting habeas corpus to a prominent dissident,130 among other important decisions. In 1987, the High Court resolved an electoral dispute between two factions of the leading party in a way that displeased the Prime Minister, Mahathir Mohamad.131 The government responded by dismissing the Lord President of the Supreme Court and two other Supreme Court judges. Parliament then revised the Constitution,132 making it clear that the judiciary was subservient to legislative authority, a creature of “federal law.” The Supreme Court was renamed the Federal Court, and Parliament claimed authority to restrict the jurisdiction of the courts at will, through statute. In retrospect, one sees that this period was the high point of the ruling party’s power. In the 2008 elections, the Barisan Nasional failed to win at least twothirds of the seats in Parliament for the first time in four decades, thereby losing

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Emergence and Diffusion its capacity to revise the constitution on its own; and, in the 2013 elections, it received fewer than 50 percent of the popular vote. There is no doubt that the party’s decline emboldened the courts. In 2010,133 the Federal Court embraced PA, citing to Canadian, Indian, and UK precedent, while declining to strike down the measure under review. In Mat Shuhaimi bin Shafiei (2016), the Court of Appeal (a tier below the Federal Court) invalidated an infamous statute routinely used to quash dissent—the (p.87) Sedition Act—on freedom of expression and equal protection grounds. The case involved the prosecution of an elected member of a state parliament who, through publishing a political editorial, had offended Basiran Nasional officials. The Court of Appeal declared that any law that infringed upon “fundamental liberties,” if the law is not to “render the liberty … ineffective,” must “meet the test of proportionality” or be invalid. It then went on to survey the (scant) case law on the point, declaring that “the proportionality test was now an entrenched part of our law.”134 Applying the test to the case at hand, the Court struck down the offending provisions of the Sedition Act, comparing the heavy burden it placed on individuals (operating as a reverse onus clause) with the suite of rebuttable presumptions found in other statutes that penalize more “heinous crimes.”135 Five months later, in Semenyih Jaya Sdn Bhd (2017),136 the Federal Court invalidated, as unconstitutional, the restrictions Parliament had placed on the courts’ jurisdiction in 1988, a development heralded in Malaysia as a dramatic “rebirth of judicial power.”137 It remains to be seen whether the country’s courts will deploy PA with the same intensity as South Korea, Taiwan, or even the Hong Kong courts. On the one hand, judges have positioned themselves to play a stabilizing, rights-enhancing role, especially if the country continues to clear a path toward competitive, pluralist democracy. On the other hand, the Federal Court’s own commitment to PA remains in doubt. In 2018, the Federal Court reversed the Court of Appeal’s landmark decision in Mat Shuhaimi bin Shafiei, but on procedural grounds: the Court concluded that the challenge was precluded by an earlier ruling, under the doctrine of res judicata.138 In the May 2018 elections held a few months later, a coalition of opposition parties defeated the Barisan Nasional, which will now be out of power for the first time since independence. Bolstering judicial review and rights protection, in the name of constitutional rule of law, is now at the top of the reform agenda. Arguably, the most dramatic transition to rights-based constitutionalism took place in Latin America, as the Constitutional Court of Colombia (CCC) became one of the world’s most important trustee courts in the course of a decade. In 1991, Colombians ratified a new constitution to replace a regime beset by nascent civil war, legislative paralysis, and a breakdown in public order. Indeed, during the 1970–90 period, the president ruled under emergency provisions “a remarkable 82% of the time,”139 while guerilla armies and paramilitary groups Page 26 of 41

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Emergence and Diffusion fought over, and in fact governed, large parts of the territory. The scandal-ridden legislature—the Congress—had virtually ceased to function, rendering the executive all the more powerful. In 1990, a (p.88) referendum to elect a constituent assembly to draft a new constitution passed with 89 percent of the vote. The founders not only committed to rights-based constitutionalism, but they also pushed far beyond their peers, adding a long list of justiciable social and economic rights to the classic template. The charter entitles all to adequate education, health care, housing, access to work, unemployment insurance, and other collective goods; and it requires the state to protect the vulnerable (including children, youth, and women in their pregnancy), and to engage in affirmative action in favor of those who “have been discriminated against or marginalized.” Moreover, the constitution incorporates international human rights treaties “as the highest norms of the Colombian legal order,”140 to be interpreted and applied in conjunction with the domestic charter. A new constitutional court, vested with extensive jurisdiction, was established to enforce these rights. The Constitution firmly secures the Colombian Court’s trustee status: “The safeguarding of the integrity and supremacy of the Constitution is entrusted to the Constitutional Court,” in particular with regard to protecting rights (Art. 246). In addition, the Court’s self-perception as guardian of the new constitutional order has been “heavily influenced by the work of the German Court,”141 including in its reliance on the proportionality principle in adjudicating controversial cases. More broadly, the Court is one of the most cosmopolitan in the world, regularly citing to foreign jurisprudence, in particular to the case law of the Spanish, German, and South African constitutional courts, to the European and Inter-American Courts of Human Rights, and to the American and Canadian supreme courts. The Colombian Court embraced PA in its first year of operation, under the influence of the Spanish and German constitutional courts, Robert Alexy’s scholarship, and citing to the European Court of Human Rights.142 It then incrementally extended the scope of its application to individual rights—called “liberties” by the Court—more broadly.143 To provide a brief summary of the CCC’s complex and variegated approach to rights protection would be all but impossible, but some basic rules of thumb hold sway. The Colombian charter formulates differently structured limitation clauses (explicit and implicit) for different types of rights. The Court recognizes these distinctions in how it enforces proportionality. The charter contains a general right to liberty—the free development of one’s personality and identity (Art. 16)—which can only be limited (as in Germany) to protect the rights of others and to defend the legal order. The CCC deploys PA (in the manner of the German and Spanish (p.89) Courts) when it adjudicates this provision, as well as other classic, negative rights. In a second set of important cases—involving an equality provision that categorically prohibits “any discrimination on account of gender, race, national Page 27 of 41

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Emergence and Diffusion or family origin, language, religion, political opinion, or philosophy” (Art. 13)— the Court usually deploys full-dress PA, at least for claims of direct discrimination. It applies a third approach—emphasizing suitability (a basic rationality test) but sometimes integrating necessity analysis (LRM)—when it comes to positive rights, in particular, when dealing with omissions on the part of the state that would have important budgetary consequences. The approaches are not sealed off from each other. Indeed, it is often difficult even for the justices to predict in advance what approach will be selected to resolve complex disputes. An important example is a 2001 case brought during the height of an economic crisis that led to high inflation, a huge budgetary deficit, and the supervision of the International Monetary Fund. The litigation involved a challenge to the annual budget, which had provided a cost of living increase to public servants on the lower part of the pay scale, but not to those earning higher salaries. Article 53.1 of the Charter places Congress under a duty to legislate in ways that would guarantee, among other “fundamental principles,” a right to “minimal essential remuneration”; as a positive right with budgetary implications, the rule of thumb would be that the Court would apply a form of PA leaning heavily on rationality review. But that is not what the CCC did. In its ruling, the Court insisted that, with respect to public servants whose “salary is lower than the … average,” the right to an adjustment for inflation is “untouchable”: this group, along with their relatives, deserves special protection in the social state, which legislators cannot withhold.144 This part of the ruling is compatible with the view that the essential core of a right—which the CCC calls the “vital minimum”—may not be abridged. For those who earn the highest salaries, the CCC deployed a full version of proportionality, which it equated to “strict scrutiny.”145 The Court found that the measures under review passed both the suitability and necessity subtests (Congress had the duty to allocate scarce resources during an economic crisis, and possessed the power to set its own goals), but failed the balancing test. The Court then laid down guidelines for revision of the budget, making it clear that, while Congress must provide an adjustment for all, lower-paid functionaries must receive a greater increase than their higher-paid counterparts. Congress complied, giving the former a 9 percent adjustment for inflation, and the latter 2.5 percent. The CCC’s influence on the policy process is arguably as deep and pervasive as any court’s in the world. Expansive jurisdiction—including concrete review, abstract review, and an individual complaint procedure (the tutela)—coupled (p. 90) with permissive standing rules, guarantee that virtually every important state measure (or omission) will be sent to it. Indeed, the CCC is severely overloaded, receiving—annually—about 500,000 individual complaints (of which about 800 will lead to a ruling) and 200 abstract review referrals. The Court routinely seeks to pressure the weak and inefficient Congress to legislate in order to make rights effective and to comply with its rulings; at the same time, the Court has proven to be the only effective check on presidential power, which Page 28 of 41

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Emergence and Diffusion generates a steady flow of tutela petitions. The CCC is justly famous for its bold rulings on social and economic rights, the thrust of which is to require the state to fulfill its obligations to secure a “vital minimum”146 of the collective good in question; again, these decisions have served as a catalyst for overcoming legislative inertia. While deploying PA, the Court has produced landmark judgments that have, among many other decisions on controversial policy issues, permitted access to abortion under certain circumstances, required affirmative action, legalized the personal use of narcotics, and prohibited discrimination based on sexual preference.147 Given the difficult circumstances within which the CCC operates, the fact that it has built a relatively effective system of constitutional justice should be cause for wonderment (and more intensive empirical research). The record in the rest of Latin America is mixed,148 but PA has made inroads. Proportionality gained traction in Mexico’s constitutional jurisprudence only after multiparty democracy took root in the country. The Institutional Revolutionary Party (PRI) dominated Mexican politics from 1929 to 2000, when it was voted out of office for the first time. The Mexican courts, on their own, developed inchoate prototypes of proportionality review in the 1990s,149 but it took until 2004 before the Supreme Court moved to make it a general approach to rights adjudication. Until at least 2010, the Court rarely if ever moved to the balancing stage, preferring to end inquiry with necessity analysis. The major exception (copying the Colombian Court) involved equality cases (suspect classifications) where PA was applied in a mode characterized by the Supreme Court itself as “strict scrutiny.”150 In recent years, the Mexican Court has also deployed full-fledged proportionality in cases involving freedom of expression.151 For its part, the Peruvian Constitutional Court adopted PA in 2005, but does not always deploy it consistently.152 The Chilean (p.91) Constitutional Court did the same in 2006, relying on the authority of the Spanish and German Courts. Given the absence of a tradition of rigorous judicial review in Chile, the move is recognized to have initiated a “legal revolution in the making.”153 One expects proportionality’s reach to widen and deepen in Latin America, given that the Inter-American Court of Human Rights insists domestic courts of the regime are obliged to use PA when they adjudicate certain qualified rights under the American Convention (Chapter 6). The Brazilian Federal Supreme Court has also produced a series of rulings that elaborate and apply PA, citing extensively to Alexy and the GFCC.154 The first, which date from the early 2000s,155 were produced by the same Justice: Gilmar Mendes. Mendes wrote his doctoral thesis in Germany (on abstract review) and then, as a law professor, produced scholarship promoting proportionality.156 It is only very recently, however, that a relatively stable majority in support of PA has coalesced. In 2016, in one of the most high-profile rulings in its history,157 the Court sided with a group of health workers convicted of providing abortion services under provisions of the criminal code that made doing so illegal, except Page 29 of 41

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Emergence and Diffusion in cases of rape or when the woman’s life would be in danger from carrying to term. Not content with merely exonerating the accused (the purpose of the suit), Justice Luis Barroso penned a majority opinion declaring that the criminalization of abortion during the first trimester of pregnancy violated a long list of “fundamental rights,” as well as “the principle of proportionality.”158 Barroso describes PA as a best-practice standard, cites to the scholarship of Alexy and Barak (as well as his own),159 and discusses rulings of apex courts in Germany, Canada, and the United States, all of which are described in terms of proportionality balancing.160 Because criminalization could “not prevent the termination of pregnancy,” it failed the suitability test; less restrictive alternatives to protecting fetal life could be used, including the promotion of better sex education, distribution of condoms, and increased social support for disadvantaged pregnant women; and the “social harms” of criminalization, resulting in health problems and death, “clearly outweigh” criminalization’s benefits.161 For various technical (p.92) reasons, Barosso’s opinion could not invalidate the disputed provisions of the code as unconstitutional. But it did place legislators under the threat of such a ruling if they chose not to act, and a suitable case were to appear. The Court is currently deliberating just such a case, which it took in 2018. Diversity

As we have seen, there is variance in how apex courts justify their adoption of proportionality. Early movers (Germany, Canada, and the two European regional courts) gave no justification. A second expansion took place in the 1990s (Colombia, Israel, New Zealand, South Africa, South Korea, and Taiwan), as courts embraced PA while citing to the jurisprudence of the first wave, and to scholarly authority. In the 2000s, proportionality made further inroads into Latin America (Chile, Mexico), Africa (Botswana, Kenya, and Zimbabwe), and Asia (Hong Kong, Malaysia). Today, it is indisputable that proportionality comprises a general principle of modern constitutional law, which makes it a relatively simple matter (at least doctrinally) for judges to integrate it into any charter of rights containing a limitation clause. Observing more closely the dynamics of expansion, one sees that proportionality has not only spread across legal systems, but within them. Many courts first introduced PA on a limited scale, as a technique for adjudicating a particular kind of claim. The German Court did so (to deal with a specific limitation clause attached to one right) in Apothekenurteil, and the Colombian Court gradually applied PA to rights beyond an equality guarantee. Once PA had a foothold, courts typically expanded its scope of application, enshrining it as a transsubstantive framework for rights adjudication. Relatedly, proportionality’s prior development in administrative law served as an important a gateway for its migration into the constitutional law. In Germany, Israel, South Korea, and Taiwan, among others, constitutional courts built on the pioneering work of administrative judges, and then appended a crucial subtest: balancing. Strong Page 30 of 41

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Emergence and Diffusion support by academic lawyers, who have produced a powerful transnational discourse in proportionality’s favor, paved the way. The relative importance courts give to the subtests that comprise PA also varies. Judges who adopt a version of the standard model frequently customize some of the steps, in ways large and small. There is substantial variation, for instance, in how courts frame the preliminary inquiry into the purpose or object of the challenged measure. For courts that require a showing that the object of the measure under review is constitutionally permissible (e.g., Germany, the European Court of Human Rights), the inquiry is typically pro forma. But if a court requires more—that the measure (p.93) promotes constitutionally protected values (Colombia),162 or is “sufficiently important to warrant overriding a constitutionally protected right or freedom” (Canada)163—then more of its attention will be directed to the front end of the analysis. Taiwan’s Constitutional Court sometimes recasts the “legitimate purpose” subtest as an inquiry into “proper method,” which can shift the focus from ends to means (truncating suitability analysis). More important, many courts have preferred—at least initially—to rely more heavily on the necessity stage, operationalized by a LRM test, than on balancing. Again, this partly reflects administrative law roots; but it also reveals anxiety about exposing judges as unfettered lawmakers. Some important courts—Canada and South Africa, for example—started with idiosyncratic versions of PA, but are now moving closer to the ideal type we elaborated in Chapter 2. Others—for instance, Colombia and South Korea—have evolved truncated hybrid frameworks that appear to integrate elements of the tiered review found in American law (Chapter 4). How stable these hybrid versions are, and whether they make any tangible difference to policy outcomes, remain open empirical questions. If proportionality is not infinitely malleable, it is one of constitutional law’s great shape-shifters. In contrast to absolutist or categorical conceptions of rights, and to deferential standards of review, all versions of PA require (i) officials to justify any measure that harms rights holders, and (ii) courts to determine whether the measure under review burdens rights holders too much, given the importance of the right being pleaded. But as the diversity of national experiences demonstrates, there are a number of different ways that courts can perform this task. PA’s openness to customization—its flexibility—partly helps to explain why courts operating in very different environments have found it workable. As we have emphasized throughout the book, the effectiveness of any given system of constitutional justice varies across time, and in comparison to others. In all systems, apex courts upgraded their capacity to enhance systemic effectiveness once they adopted PA, which requires them to review the lawfulness of choices made by legislators and executives. A robust jurisprudence of rights protection records the empowerment of courts vis-à-vis other institutions. They also differ in their readiness to strike down important Page 31 of 41

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Emergence and Diffusion government measures. Yet even when it comes to according de facto deference to officials in specific cases, judges have standardized prudential techniques— within PA—to help them defuse the 2-against-1 problem, and to mitigate the effects of judicial supremacy (Chapters 2 and 5). (p.94) Frontiers

The most important indicator of proportionality’s dominance—as a best-practice, global standard of rights adjudication—is the fact that virtually all of the most powerful and effective apex courts have adopted it. Yet, most high courts in the world are not very powerful, and the systems of justice they manage are relatively ineffective. We reject any binary approach to effectiveness: even a demonstrably ineffective system can be enhanced incrementally, in seemingly small steps that can add up to meaningful progress. This leads us to consider another indicator of proportionality’s importance: the pressure it exerts to undermine the resistance to PA among holdouts. The frontiers demarcating the proportionality world are, today, quite porous. Judges may resist adopting PA, but not because of ignorance, or for the lack of opportunity. Indeed, we observe three increasingly potent mechanisms of conversion to PA of courts that were once firmly outside of proportionality’s borders. The first is pressure from below, that is, through strategic litigation. To the extent that important rights litigation takes place at all, lawyers will routinely demand a resistant court to replace deferential standards with PA. Since 2010, litigators and scholars have launched campaigns in support of proportionality across Africa, for example. They build their arguments on case law and scholarship generated by past episodes of adoption, which is rehearsed as takenfor-granted, legitimate authority. Some of these campaigns have met with some success, including in Zimbabwe (2014),164 Kenya (2017),165 and Tanzania.166 Others continue in the face of resistance (e.g., in Botswana167 and Nigeria168). In Asia, such campaigns have progressed in Malaysia, but not in Singapore, even though the two systems work with similar constitutional materials.169 The second is pressure from above. Domestic systems of constitutional justice in Latin America and African are increasingly embedded in regional, transnational systems of justice. The trustees that manage these treaty regimes—including the Inter-American Court of Human Rights; the Pan-African Commission and Court on Human and People’s Rights; the Court of the East African Community; and the Court of the Economic Community of (p.95) West African States—have all adopted proportionality. They did so quite explicitly, in order to enhance the effectiveness of national systems of rights protection. These moves put pressure on the member states to “incorporate” international human rights—and to recognize the authority of the case law of the regional courts—as judicially enforceable domestic law. This pressure may well tip those courts that have flirted with adopting proportionality in Latin America and Africa to do so on a wholesale basis. (In Asia, no international human rights court exists.) We Page 32 of 41

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Emergence and Diffusion examine the effects of the incorporation process, now well underway in some regions, in Chapter 6. Third, the global success of PA means that all high courts found on the other side of proportionality’s frontier are outliers, or even outcasts from an increasingly cohesive global community of courts and jurists. As resisters, they have little or no voice in the inter-judicial dialogues that help to organize the structural development of rights protection around the world. The constitutionalization of the proportionality principle, at both the domestic and transnational levels, furnishes the main doctrinal platform for these dialogues, both cooperative and conflictual (Chapter 6). At the same time, resisters face positive incentives for adopting proportionality, insofar as they recognize an interest in building systemic effectiveness.

Conclusion This chapter has charted, and sought to explain, the most striking development in global constitutional law of our time: the rise and spread of proportionality. It has done so with reference to the theoretical materials developed in the first two chapters, while demonstrating proportionality’s place in an unfolding evolution of judicial governance. Chapter 4 focuses on the most conspicuous counterexample among well-established courts that exercise judicial review, a historically influential jurisdiction seemingly immune to the pull of proportionality: the United States. Notes:

(1) Confirming Petersen’s (2017) findings on Germany, Canada, and South Africa. (2) Following from DiMaggio and Powell (1983); Meyer, Boli, Thomas, and Ramirez (1997): 144–81. (3) Craig (2017); Barak (2012a: 175–210). (4) Hessen Police Enforcement Law, Art. 4 (1950). (5) Svarez (1960: 39). (6) Quoted in Würtenberger (1999: 62). (7) ALR, § 10 II 17 (1794). (8) Stern (1993: 168). (9) See, for instance, Blomeyer–Bartenstein, Närg, Olzog, and Ruprecht (1951); Fleiner (1928); Frumkin (1991: 8–9). (10) Urteil vom 25.3.1929, Oberlandesgericht Hamburg, 58 Juristische Wochenschrift 2842 (1929). Page 33 of 41

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Emergence and Diffusion (11) The idea of fundamental rights was important in German law going back to the nineteenth century, but in practice this translated into administrative controls on unlawful compulsion; Krüger (1950: 626). (12) Robbers (1990: 260, 262). (13) Stolleis (2003: 273). (14) Günther (2004: 190–1). (15) In 1926, the Federal Supreme Court of Switzerland noted, in dicta, that health regulations infringing the constitutionally guaranteed freedom of trade and manufacturing more than necessary to protect the public were unjustifiable. (16) Krüger (1950). (17) Dürig (1956). (18) Krauss (1955); Tischbirek (2017). (19) Lerche (1961). (20) Bavarian Constitutional Court (1949). (21) Bavarian Constitutional Court (1956). (22) German Federal Constitutional Court (1954a); Grabitz (1973: 569 n. 1). (23) German Federal Constitutional Court (1958b). The Apothekenurteil framework is tailored to the textual particularities of Art. 12.1, concerning the freedom of occupation. (24) German Federal Constitutional Court (1963). (25) German Federal Constitutional Court (1965: 348–9). (26) German Federal Constitutional Court (1968: 133). (27) Grimm (2007). (28) Grimm (2007: 386). (29) Petersen (2017: 83–95). (30) Interestingly, Petersen notes that the Court was not reluctant to rule that lower courts had struck the wrong balancing in their rulings; Petersen (2017: 93). (31) Petersen (2017: 95).

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Emergence and Diffusion (32) For instance, Sections 138, 343, and 228; see Stone Sweet and Mathews (2008: 109). (33) Following from Kommers (1976; 1994) and Landfried (1984; 1992). (34) Sadurski (2008: ch. 10). (35) Maduro (1998); Stone Sweet (2004: ch. 3). (36) Court of Justice of the European Union (1989). (37) Stone Sweet and Ryan (2018: 103–8). (38) Mathews (2018: 33–46). (39) Supreme Court of Canada (1985a). (40) Supreme Court of Canada (1986a). (41) Strayer (2013: 255–6). (42) Tarnopolsky (1983: 269–70). (43) Barak (2012a: 188‒9). (44) Supreme Court of Canada (1986a). (45) Supreme Court of Canada (1989a). (46) Petersen (2017: 85). (47) Petersen (2017: 132). (48) Supreme Court of Canada (1991). (49) Grimm (2007: 394–5); Moore (2018). (50) The Court had reaffirmed the importance of balancing in earlier cases; Supreme Court of Canada (2007: para. 46). (51) Moore (2018: 147–8). (52) Moore (2018: 149). (53) Moore (2018: 78, 79). (54) By 1997, Chief Justice Hamilton, speaking for the Court, could assert that proportionality was “a well-established tenet of Irish Constitutional Law”; Supreme Court of Ireland (1997: 500).

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Emergence and Diffusion (55) Supreme Court of New Zealand (2007); Court of Appeal of New Zealand (1992). (56) House of Lords (1998). For a broader account of the evolution of proportionality in the UK, see Craig (2016); for the influence of European law, see also Bjorge (2015: ch. 5). (57) Chandrachud, https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2353211 (2013); Duara, https://www.taylorfrancis.com/books/ 9781351782623 (2018: ch. 3). (58) Stone (2018). (59) High Court of Australia (2015). Members of the High Court have not arrived at consensus on the general appropriateness of proportionality; see the diversity of opinions in Murphy v. Electoral Commissioner; High Court of Australia (2016). (60) Chandrachud (2013); Duara (2017: ch. 3). (61) Barak (2012). (62) Modern Dental College, para. 55. (63) Modern Dental College, para. 56. (64) For example, Puttaswamy and another v Union of India (2017). (65) The others are New Zealand and the United Kingdom. (66) Segal (1990). (67) Zamir (1994). For a critical discussion of the use of proportionality reasoning in Israeli administrative law, see Cohn (2013). (68) See, for instance, Justice Barak’s opinion for the Court in Hamri, Supreme Court of Israel (1982). (69) Supreme Court of Israel (1993). (70) Zamir (1994). (71) Barak (1994). (72) Supreme Court of Israel (2004: para. 48). (73) Supreme Court of Israel (2004: para. 68). (74) Supreme Court of Israel (2004: para. 67). (75) Supreme Court of Israel (2004: paras. 36–45). Page 36 of 41

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Emergence and Diffusion (76) Constitutional Court of South Africa (1994). (77) It is unclear what standard the CCSA did use in this case. The Court was willing to consider the provision “reasonable,” while declaring that placing the onus on the prosecution would not be “unduly burdensome” for the prosecution. Constitutional Court of South Africa (1995a, para. 36). (78) Constitutional Court of South Africa (1995a, para. 35). (79) Constitutional Court of South Africa (1995b). (80) Constitutional Court of South Africa (1995c: 649). (81) Sachs (2003: 67). (82) Constitutional Court of South Africa (2000: para. 32). (83) Petersen (2017: 109). (84) Petersen (2017: 110–11). (85) Constitutional Court of South Africa (2000: para. 97). (86) Petersen (2017: 112–13). (87) Botha (2003). (88) Constitutional Court of South Africa (2000: para. 95) (O’Regan and Cameron, JJ., dissenting). (89) Klug (2010: 173–84). (90) The view has been debunked by, among others, Ginsburg (2003); Lin (2017); Stone Sweet and Mathews (2017); and Yap (2017). (91) Kwon (2011: 166). (92) Ginsburg (2010: 145). (93) Ginsburg (2002: 779). (94) Ginsburg (2002: 779). (95) Constitutional Court of Korea (1992); see also Huang and Law (2016: 319 n. 61). (96) Constitutional Court of Korea (1997). (97) Yap (2017: ch. 7); Lin (2017: 1107–18).

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Emergence and Diffusion (98) Lee (2005: 410, 415–18). (99) Constitutional Court of Korea (2004). (100) Constitutional Court of Korea (2004: 289). (101) Lin (2017: 1109). (102) Huang (2005: 23). (103) The Taiwan Constitutional Court is also known as the Council of Grand Justices and the Judicial Yuan. (104) Ginsburg (2002: 769). (105) For historical background on PA’s evolution in Taiwan through 2002, see Huang and Law (2016: 317–21). (106) Constitutional Court of Taiwan (1996). (107) Su and Ho (2016). (108) Tang (2002). (109) Constitutional Court of Taiwan (2004a; 2004b). (110) Constitutional Court of Taiwan (1998). (111) Chen (2010: 26). (112) For an overview of the judicialization of politics in Taiwan, see Lin (2017). (113) Hwang (2012: 47). (114) Ginsburg (2002: 771–2); Lewis and Cohen (2014). (115) Chu (2008: 526–7). (116) Art. 22: “All other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution.” (117) Constitutional Court of Taiwan (2017). The TCC did not explain why it did not use PA, which itself accommodates a “heightened scrutiny” standard of review. (118) Yap (2017: 79–93). (119) Hong Kong Court of Final Appeal (1992).

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Emergence and Diffusion (120) Hong Kong Court of Final Appeal (1999). (121) Hong Kong Court of Final Appeal (2005). (122) Ip (2014: 825). (123) Yap (2017: ch. 4) highlights the inconsistency. (124) Hong Kong Court of Final Appeal (2010). (125) Hong Kong Court of Final Appeal (2013). (126) Yap (2017: ch. 4). (127) Hong Kong Court of Final Appeal (2017). (128) Officials disqualified the two from their seats, and later prosecuted them for unlawful assembly. (129) Supreme Court of Malaysia (1988a). (130) Supreme Court of Malaysia (1988b). (131) See Harding (2012: 207–16). (132) The legislature may do so upon a 2/3 vote. (133) Federal Court of Malaysia (2009); reiterated in Federal Court of Malaysia (2015). (134) Court of Appeal of Malaysia (2016: 445–7). (135) Court of Appeal of Malaysia (2016: 450). (136) Federal Court of Malaysia (2017). (137) Malay Mail, April 27, 2017. (138) Federal Court of Malaysia (2018). (139) Cepeda Espinosa and Landau (2017: 4). (140) Cepeda Espinosa and Landau (2017: 7). (141) Cepeda Espinosa and Landau (2017: 5–16). (142) The Court did so under the guise of “reasonableness” review, which it gradually formalized as PA. See Constitutional Court of Colombia (1992, 1994, 1996). See also Conesa (2008). (143) See, for instance, Constitutional Court of Colombia (1997). Page 39 of 41

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Emergence and Diffusion (144) Cepeda Espinosa and Landau (2017: 163–4). (145) Cepeda Espinosa and Landau (2017: 163–4). (146) Cepeda Espinosa and Landau (2017: 152). (147) Cases translated into English, with commentary, by Cepeda Espinosa and Landau (2017). (148) In Ecuador and Venezuela, for example, newly created apex courts flirted with PA, taking cues from the Colombian Court, but were overwhelmed by increasingly authoritarian presidents determined to use them to enhance their own powers. (149) Ferrer Mac-Gregor and Sanchez Gil (2012: 298). (150) Conesa (2008: 11–14). (151) See Supreme Court of Mexico (2017). (152) For an in-depth discussion of PA in Peru, and of the institutional failings of the Peruvian court, see Rubio Correa (2011) and Bertal (2017). (153) Figeuroa (2013: 411–13). (154) See Peluso Neder Meyer (2017: 153–5; 222–30). (155) Including one of the Brazilian Federal Supreme Court’s (2004) most controversial rulings, concerning the question of whether anti-semitic speech comprised a form of prohibited racist speech. In this case, Justices Mendes and Marco Aurélio both deployed PA, yet came to different conclusions. (156) Mendes and Branco (2012: 311–39). (157) The Federal Supreme Court of Brazil (2016). (158) Including the “sexual and reproductive rights,” “autonomy,” and “physical and psychological integrity” of the pregnant woman, as well as gender equality, “given that men do not get pregnant”; Mendes and Branco (2012: paras. 4–6 of the syllabus). (159) Mendes and Branco (2012: paras. 17–19). (160) Mendes and Branco (2012: paras. 17–19, 39–46). (161) Mendes and Branco (2012: paras. 35–45; para. 6 of the syllabus). (162) Constitutional Court of Colombia (1997).

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Emergence and Diffusion (163) Supreme Court of Canada (1986a). (164) The High Court decision declaring Section 5 (2) of the State Liabilities Act unconstitutional, written by Justice Mushore, cited heavily to South African proportionality jurisprudence; High Court of Harare (2014). (165) Kenya’s first High Court decision to fully embrace proportionality, declaring a defamation provision of the penal code to be a disproportionate limitation on freedom of expression, cited to Barak’s scholarship, Oakes, and various human rights conventions; High Court of Kenya at Nairobi (2017). See Kibet and Fombad (2017) on the relationship between PA and “transformative constitutionalism” in Africa. (166) High Court of Tanzania (2018). (167) Lekgowe (2014). (168) Ugochukwu (2014). (169) Lee (2014); Stone Sweet and Mathews (2017).

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All Things in Proportion? The United States

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

All Things in Proportion? The United States Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0004

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

Chapter 3 charted the consolidation of proportionality as a global, transsubstantive principle of constitutional governance. The United States seems to stand apart from the trend. American rights doctrines are a tangle of different tests and approaches. Some involve forms of balancing, to be sure, but attention Page 1 of 34

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All Things in Proportion? The United States to text and history, as well as categorical reasoning, play central roles in American rights practice. Indeed, in accounts of PA’s spread, the United States is frequently tagged as the great outlier, peculiarly resistant to the appeal of proportionality. In fact, the story is more complicated. Balancing analyses have a long and contentious history in U.S. constitutional jurisprudence.1 Federal courts in the United States have, in more than one context, and on more than one occasion, developed balancing approaches to rights that closely resemble PA.2 As we will show, in the nineteenth century, the Supreme Court derived a version of PA to test for state restrictions on interstate trade under the so-called “dormant” Commerce Clause. And in the mid-twentieth century, strict scrutiny review emerged as a rights-prioritizing, balancing framework with very obvious similarities to proportionality as well. The fortunes of balancing have waxed and waned over the years; resemblances to proportionality in contemporary doctrine are often obscured; and balancing’s place in American rights review remains contested, with conflicts over its legitimacy regularly flaring into view on the current Supreme Court. Indeed, American judges are engaging in a new struggle over balancing’s status and worth, with express reference to proportionality.3 (p.97) In this chapter, we lay out the case for a more open engagement with proportionality in American constitutional law. Far from balancing rights away, we will argue, PA can protect rights more consistently and coherently than the current American approach, which chronically generates inconsistency and arbitrariness. We do not propose that PA should necessarily govern every constitutional rights claim,4 nor do we regard proportionality as a miracle cureall that will make hard constitutional questions easier to answer. PA does not spare judges the hard work of theorizing the nature and scope of a right in play, nor does it dictate correct answers (Chapter 2). It does require that judges engage in balancing, routinely and transparently, which some will find disquieting. But American judges often engage in balancing in deciding rights claims already. We argue that they should seriously consider the best available methodology for doing so. We proceed as follows. Part I uncovers the foundations of proportionality in American rights review, focusing on two critical junctures: (i) the emergence of dormant Commerce Clause doctrine in the late nineteenth century, and (ii) the consolidation of strict scrutiny in the mid-twentieth century. These episodes mirrored, simultaneously, stages in the evolution of PA in Germany, and laid a foundation for a structured but suitably flexible approach to rights review. In Part II, we subject American rights doctrine to critical analysis, in the light of the proportionality approach. Part III considers how the courts might give proportionality greater expression in American constitutional law.

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All Things in Proportion? The United States I Roots of Proportionality in the United States Before turning to a more nuanced discussion of the relationship between the proportionality framework and American rights doctrine, two preliminary points deserve emphasis. First, there is a mismatch between most of the classic American critiques of balancing, which predate the spread of PA, and proportionality.5 In the United States, opponents of judicial balancing typically suppose that balancing is necessarily ad hoc, open-ended, and unprincipled. They then condemn this inherently undisciplined exercise of lawmaking (p.98) power for depriving rights of their normative status as “trumps” or “shields” against government action.6 This characterization does not easily fit proportionality. PA is a highly formalized argumentation framework, the basic function of which is to organize a systematic assessment of justifications for public acts that would burden the exercise of any qualified right (Chapter 2). Officials must give reasons for their rights-regarding acts, which PA subjects to the highest standard of judicial scrutiny. Second, PA shares constituent components with strict scrutiny, the most rightsprotective form of review in U.S. constitutional law, in the form of the two tests that typically have the most bite. In PA, necessity analysis, operationalized by a least restrictive means (LRM) test, is followed by the balancing subtest. In strict scrutiny, a rights-restricting measure must be narrowly tailored to serve a compelling state interest. Balancing and means-ends tailoring are both at play here, too. In strict scrutiny, a “compelling” state interest is one that is, in principle, sufficiently weighty to overcome the interests of rights holders; further, officials must show that they have not visited more harm on rights holders than is necessary to achieve that interest. Thus, as a formal matter, PA is no less intrusive, “strict,” or rights-prioritizing, than American strict scrutiny. Both frameworks authoritatively displaced doctrines that were far more deferential to legislative authority. In the United States, what makes the scrutiny “strict” is the fact that it negates the normal presumption that legislation will be treated as constitutionally valid unless the law fails inquiry into its rationality. As PA diffused globally, it displaced deference doctrines of the Wednesbury unreasonableness type, a cousin of American “rational basis” review (Chapter 3). Under conditions of trusteeship (Chapter 1), both PA and strict scrutiny make an apex court’s supremacy a blunt political fact. In the United States, however, strict scrutiny is only applied to a small number of rights, whereas PA is applied to all qualified rights (Chapter 2). We now turn to the history, only recently coming back into focus, of proportionality balancing in American rights doctrines.7 Our aim is not to offer a comprehensive chronology, but rather a high-speed and selective tour, focusing on those sites that hold particular interest from a comparative perspective on rights adjudication. The picture that emerges stands in sharp opposition to the view of those who claim a fundamental incompatibility between PA and American constitutionalism. To the contrary: the emergence of doctrinal Page 3 of 34

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All Things in Proportion? The United States approaches that approximate proportionality is a recurrent feature of American rights adjudication, dating back to the nineteenth century. Given the importance of doctrinal continuity in American law, engaging (p.99) this history subtly shifts the burden of justification: the move to reject a proportionality-based balancing posture requires explanation at least as much as the move to embrace it. The Dormant Commerce Clause

Proportionality balancing has deep roots in U.S. constitutional doctrine, and the development of doctrine is the focus of this chapter. But it is worth pointing out that it also has footholds in portions of the constitutional text itself. Some are readily apparent. It has often been noted, for instance, that the Fourth Amendment’s prohibition of “unreasonable” searches and seizures invites balancing the government’s law enforcement interests against the privacy interests of the individuals involved;8 and indeed, the Supreme Court has long approached the amendment in this way.9 What has been less noticed, until recently, is that the Necessary and Proper Clause—that hugely important, perennially contested measure of Congress’s effective legislative power—might reasonably be read as importing a kind of proportionality requirement.10 Notably, originalist scholars find a basis for this conclusion in English administrative law.11 Their historical research leads them to view the clause, in John Manning’s terms, “as a natural vehicle for absorbing English administrative law principles of ‘reasonableness’—a standard that encompassed values such as fairness, impartiality, proportionality, means-ends fit, and respect for background rights.”12 What is more, the original understanding of constitutional rights was deeply informed by the natural law tradition, in which rights were understood to be closer to principles than absolute entitlements. As Jud Campbell has written with particular reference to the First Amendment, As a general matter, natural rights did not impose fixed limitations on governmental authority. Rather, Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good – generally defined as the good of the society as a whole. Recognition of natural rights, in other words, simply set the terms of political debate, not the outcomes. In this sense, speech and press (p.100) freedoms were expansive in scope – applying to all forms of expression – but weak in their legal effect.13 For its part, the Supreme Court began fashioning a recognizable version of PA in constitutional cases starting in the nineteenth century. Since 1829, the Supreme Court has interpreted the Commerce Clause14 as authorizing the states to “regulate commerce in its dormant state.”15 States in the Union possess a presumptive “right” to do so in the absence of federal Page 4 of 34

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All Things in Proportion? The United States preemption, albeit under the supervision of the federal courts. Prior to the Civil War, the U.S. Supreme Court confronted no important cases in the area, and it established no lasting doctrine that is relevant here. Between 1875 and 1902, however, merchants and traders brought a rising tide of challenges to state regulations whose effect was to prohibit or burden interstate commerce. In response, the Court developed a full-fledged version of PA. Dormant Commerce Clause analysis began with an inquiry into the legitimacy and importance of state purposes, then assessed the necessity of the regulations through a LRM test, and also contained a place for balancing, in the form of an unreasonable burden standard. During this same period, the Court also derived, from the Commerce Clause, an individual right to buy and sell goods across borders. Railroad Co. v. Husen, in which the Court confronted a Missouri embargo on “Texas, Mexican, [and] Indian” cattle for eight months of the year, is a representative early case.16 Missouri argued that the measure was necessary on health grounds, given that cattle carried diseases that could devastate its own herds. A unanimous Court struck down the law. Justice Strong explained the Court’s approach: While we unhesitatingly admit that a State may pass … laws for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases … from entering the State; while for the purpose of self-protection it may establish quarantine, and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection.17 In proportionality terms, the state has a legitimate interest in health and safety, but it may only take measures necessary (the Court says, “absolutely necessary”) to those ends. As Justice Strong stressed, neither the Missouri legislature nor the Missouri Supreme Court (which upheld the law) had considered less (p.101) restrictive alternatives to an outright ban, such as a quarantine or animal inspections. Either option would have protected a valid state interest while reducing the burden on interstate commerce. The decision is plain PA: because the effect of the statute would result in the complete “destruction” of commerce,18 when less intrusive options were available, the law could not stand. Missing from this emerging framework was a conception of rights. The Court began to fill this lacuna explicitly in Minnesota v. Barber, from 1890.19 The litigation targeted a Minnesota statute that required in-state inspection of cattle, sheep, and swine within twenty-four hours before slaughter as a condition for the sale of meat in the state. In defense of the statute, Minnesota touted its facial neutrality: it applied to meat regardless of origin. The Court forcefully rejected the argument. Because of the twenty-four-hour time limitation, Page 5 of 34

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All Things in Proportion? The United States slaughterhouses in the surrounding states would find it impossible to transfer their livestock for inspection, ship it back to the slaughterhouse for processing, and then return the meat to Minnesota for sale. Writing for the Court, Justice Harlan accepted the state’s claim that the law “was enacted, in good faith … to protect the health of the people of Minnesota,” but then struck it down as an undue burden on trade.20 The state’s defense of the law, Harlan complained: ignores the right which the people of other States have in commerce between those States and the State of Minnesota. And it ignores the right of the people of Minnesota to bring into that State, for purposes of sale, sound and healthy meat, wherever such meat may have come into existence.21 Moreover, the statute had failed the LRM test, not least since it did not recognize the efficacy of the inspection and certification processes in place in home states of slaughterhouses.22 Here we find not only a right to sell goods across state lines, which the Court confirmed in Reid v. Colorado (1902),23 but also the germ of what international economic law today calls the “principle of mutual recognition,” which the Court of Justice of the European Union articulated in its celebrated free movement of goods judgment, Cassis de Dijon.24 The U.S. Supreme Court would also come to rely heavily on the principle of mutual recognition when performing its own necessity analysis. The Court’s embrace of a right to trade across borders, and its scrutiny of limits on that right (operationalized through PA), are best understood as (p.102) components of a broader move to elevate economic liberties as “preferred freedoms” in all but name.25 The foundational dormant Commerce Clause cases reveal substantial variability in outcomes: sometimes the challenged measure was upheld, and sometimes it was struck down.26 The Court aggressively required justification for limiting traders’ rights by the state, and these reasons were subjected to searching scrutiny. But there emerged no strong presumption that the measures under review were unconstitutional. In our view, courts commit a strategic error when their use of a framework is outcome-determinative: when the challenge always succeeds or fails, it looks like the court is, in effect, loading the dice. The Supreme Court’s property rights and due process jurisprudence grew increasingly rigid in the years leading up to the New Deal, just as its application of strict scrutiny did decades later (discussed below). The discredit and analytical difficulties that ensued from these doctrinal moves add support to the case for PA. Because the development of PA to adjudicate the dormant Commerce Clause blurred distinctions between legislative and judicial functions, it met with resistance among state judges and the Supreme Court’s own members. As Justices Gray and Harlan charged, while dissenting in Schollenberger v. Page 6 of 34

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All Things in Proportion? The United States Pennsylvania (1898), necessity analysis cannot be separated from “questions of fact and of public policy, the determination of which belongs to the legislative department, and not to the judiciary.”27 Of course, the more effective constitutional judicial review becomes, the more “legislative” and “judicial” functions will blur. The PA-style framework that emerged in the late nineteenth century made sense for the dormant Commerce Clause docket of that era, just as it does for today’s. In a federal policy, these cases involve important values that routinely conflict with one another. These highly context-specific cases are difficult to resolve using a rule-based approach. Judicial scrutiny of measures burdening interstate commerce has predictably led to changes in states’ behavior, which have in turn driven further refinements in the Court’s approach. States have largely abandoned measures that facially discriminate against out-of-state commerce, as these are unlikely to survive review. If facially neutral measures are in fact passed for protectionist reasons, LRM testing will probably “smoke them out.” Carefully tailored measures that nonetheless interfere disproportionately with interstate commerce will fail the undue burden test. The Court has refined this over time: the leading decision for five decades has been Pike v. Bruce Church. According to Pike: “Where the statute regulates evenhandedly to effectuate a (p.103) legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”28 Predictably, balancing makes dormant Commerce Clause doctrine controversial, including with some members of the Court. The most recent dormant Commerce Clause case of significance, United Haulers v. Oneida-Herkimer Solid Waste Management Authority, provides a good example.29 In his opinion for the Court, Chief Justice Roberts succinctly summarized the core elements of the established doctrine, and then proceeded to balance: he weighed the benefits of a county ordinance in dealing with a waste management crisis against the costs to trucking companies of higher tipping fees, finding that “any arguable burden the ordinances impose on interstate commerce does not exceed their public benefits.”30 For their parts, Justice Scalia dismissed “so-called ‘Pike balancing’” on the grounds that “the balancing of various values is left to Congress – which is precisely what the Commerce Clause (the real Commerce Clause) envisions”31; and Justice Thomas would “discard” the Court’s jurisprudence altogether, for similar reasons.32 But if some fault the doctrine for its reliance on balancing, it has in some respects become more rule-like over time. In the 1950s, the Court began to treat state and local regulations that facially discriminate against interstate commerce as presumptively unconstitutional,33 although the state or local authority could, in theory, rebut that presumption by showing that its interest was both sufficiently important and “unrelated to economic protectionism.”34 Page 7 of 34

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All Things in Proportion? The United States Some Justices began explicitly using the words “strict” and “fatal” to describe what the Court did in such cases.35 Of course, strict scrutiny is famous—some would say infamous—for being “fatal in fact,” even if the characterization is a bit of an exaggeration.36 Less well known is that strict scrutiny itself began as a more flexible balancing framework. Strict Scrutiny

Strict scrutiny emerged as part of a broader shift in the constitutional jurisprudence of the mid-twentieth century. In the late 1930s, the Supreme Court famously relaxed the heightened scrutiny it had directed toward social and (p.104) economic legislation.37 The Court’s new posture of deference to economic legislation (as well as administrative decision making38) heightened concerns that important civil liberties would be under-protected, if lenient rationality tests governed all rights adjudication. The idea that certain rights deserve increased protection had advocates on the Court for years, including Justices Harlan, Holmes, and Brandeis.39 The famous footnote 4 of Carolene Products (1938) gave voice to this anxiety. The presumption of constitutionality may have a “narrower scope,” Justice Stone submitted, when legislation runs up against specific constitutional prohibitions, notably those found in the Bill of Rights.40 The favored technique for testing state restrictions on those freedoms, reached only after years of experimentation and conflict on the bench, was strict scrutiny, with balancing and a LRM test as defining features. Strict scrutiny emerged first in First Amendment doctrine, and then migrated into equal protection.41 Most important for present purposes, the Court initially devised strict scrutiny not as a rigid, outcome-determinative rule, but as a balancing framework to First Amendment questions that was both rights-favoring and flexible.42 First Amendment doctrine in the middle decades of the twentieth century was the site of a long-running struggle over how aggressively the Court should police measures restricting free expression. The more and less speech-protective wings of the court traded places in the majority until the more speech-protective wing ultimately prevailed. What is often forgotten is that balancing started off in the arsenal of the more speech-protective justices.43 Justice Black, perhaps the Court’s most ardent defender of speech rights, linked a balancing approach with a special solicitude for speech this way in 1946: “When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.”44 But less speech-protective Justices came to adopt balancing as their own, dropping any reference to the preferred position of rights to make the test much more deferential. Decisions such as Dennis v. United States,45 (p.105) in which the Supreme Court upheld the

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All Things in Proportion? The United States Smith Act conviction of the U.S. communist party chief, gave balancing a bad name among civil libertarians, both on and off the Court.46 A critically important juncture for the developing doctrine was the introduction of the compelling state interest test, which first appeared in Justice Frankfurter’s concurrence in Sweezy v. New Hampshire (1957).47 Sweezy concerned the contempt conviction of a college professor who refused to answer questions from New Hampshire’s Attorney General concerning alleged subversive tendencies in his lectures. The Court held that the Attorney General was acting in excess of his remit from the legislature, but questioned whether any state interest would justify curtailing a First Amendment interest in teaching free from interference. Justice Frankfurter responded to this open question in his concurrence: the state could intrude “into this activity of freedom,” but only “for reasons that are exigent and obviously compelling.” “For society’s good,” he wrote, the interchange of ideas in a college setting “must be left as unfettered as possible.”48 As introduced by Justice Frankfurter, the Supreme Court’s balancer par excellence, the compelling state interest test was obviously not a repudiation of balancing. Whether the state’s interest counts as “compelling” is a function, in part, of the weight of the free expression interests at stake. The importance that Justice Frankfurter attached to academic freedom informed how he balanced. This is a version of what Barak calls “principled balancing,”49 which requires a background theory of the right in play to proceed (Chapter 2). Frankfurter’s “compelling state interest” language was occasionally invoked in the late 1950s, including in cases where the Court struck the balance in the government’s favor.50 But it was Justice Brennan who, in a series of cases decided in the early 1960s, combined the compelling state interest test with a narrow tailoring requirement to forge what we now know as strict scrutiny. At the time, Justice Brennan also understood the compelling state interest requirement in balancing terms, as his opinion concurring and dissenting in Braunfield v. Braun (1961) made plain: “What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants’ freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation (p.106) of appellants’ freedom?”51 This requirement was also paired with a LRM test, as evident in Sherbert v. Verner (1963). As Justice Brennan put it, “even if [the government demonstrated a compelling interest], it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”52 It was only in the late 1960s that the strict scrutiny framework migrated into equal protection analysis, and then, more selectively, into other doctrinal areas.53 It was in the course of this migration that strict scrutiny gained a Page 9 of 34

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All Things in Proportion? The United States reputation for being, in Gerald Gunther’s famous phrase, “strict in theory, fatal in fact.”54 By the 1970s, the Court would often give only a perfunctory wave to the “compelling state interest” prong and focus instead on the means chosen to achieve that interest: that is, on the narrow tailoring requirement.55 And the result of the Court’s “narrow tailoring” was often a foregone conclusion, as even a small amount of over-inclusiveness or under-inclusiveness was often sufficient to invalidate legislation.56 Proportionality and balancing were pushed to the margins of American rights review.57 Assessment

As the discussion above shows, homegrown versions of proportionality analysis have emerged at least twice in U.S. constitutional doctrine. Claims about U.S. exceptionalism with respect to proportionality need to take account of this history. The American experience is further evidence of the considerable appeal PA holds for constitutional judges faced with politically salient conflicts between interests. And apart from the developments described above, balancing tests continue to play important roles in numerous areas of (p.107) constitutional doctrine.58 But it is also true that, more recently, the United States has gone a different way on rights review that most other systems of constitutional justice. While courts around the world have embraced PA, the U.S. Supreme Court’s approach to rights since the 1960s has become more rigid. What accounts for the change? Our response is threefold. First, when strict scrutiny spread into equal protection, the “suspect class case” gradually became the paradigmatic target of strict scrutiny.59 Particularly in disputes involving racial discrimination, the strict scrutiny test was deployed to “smoke out” invidious state purposes, an aim that the LRM test serves well.60 There is little point to the balancing subtest when government officials have acted in bad faith, and may have dishonestly reported the legislative ends being pursued: LRM testing will be sufficient to block measures adopted in these circumstances. Second, the dominance of a liberal majority on the Court during the period in which strict scrutiny stabilized helped to cement the idea that, in practice, strict meant fatal. This empirical regularity may well have shaped the Court’s own conception of how strict scrutiny should and does operate. It is no coincidence that this majority contained Justices who viewed some rights in quasi-absolute terms, admitting virtually no infringement.61 The outcomes of strict scrutiny cases could only comfort those who believed that “fundamental” rights possessed a presumptively “absolute” character. Third, the Court’s reluctance to embrace balancing as the basic approach to adjudicating constitutional rights reflects its discomfort with being exposed as a lawmaking body. This discomfort is at least partly a function of reaction to the politics provoked by its ruling in Lochner v. New York, in which the Supreme Page 10 of 34

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All Things in Proportion? The United States Court struck down a New York law limiting working hours for bakers as interfering with the freedom of contract. Lochner looms large in the constitutional law anti-canon, and is read as a cautionary tale about the folly of judicial overreach.62 But as Jamal Greene reminds us, there is more than one account of what was wrong with the Lochner decision, as the dissents in the case underscore.63 (p.108) The more famous dissent, from Justice Holmes, denies any role for judicial scrutiny of legislative choices in economic and social policy, such as the ones embodied in the New York statute. But the fault that Justice Harlan found with the Lochner majority was different. For Justice Harlan, the problem was not that the majority weighed the interests at stake, but how the court weighed them. In his dissent, Justice Harlan acknowledged a freedom of contract right deserving constitutional protection, but not without limitation: workplace regulations would be justifiable if they were “germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health.”64 The majority, according to Justice Harlan, erred not in looking at the competing interests at stake, but in failing to give adequate weight to the evidence showing the devastating effects working conditions had on bakers’ health.65 The lesson from Lochner internalized by U.S. law is largely the one that Justice Holmes taught: in constitutional adjudication, courts weigh the interests at stake at their peril.66 But Justice Harlan showed a different way of understanding the problem with Lochner, one that left space for courts to engage in balancing in rights cases. In any case, the American antipathy to the appearance of judicial lawmaking has its ironies. In our view, an open balancing of the relevant interests, on a case-by-case basis, usurps the role of the legislator less than proportionality’s main alternatives (Chapter 2). A trustee court that undertakes to construct a constitutional code of rules—often balancing, opaquely, ex ante, to derive doctrines that will then be applied with outcome-determinative effect ex post—cannot avoid ultimately revealing itself as a supreme constitutional lawmaker.

II Pathologies of Tiered Review Canonically, the Supreme Court employs three tiers of review for many rights claims: rational basis, intermediate scrutiny, and strict scrutiny. This system is American constitutional law’s closest analogue to proportionality, in that it supplies a general rubric for reviewing rights claims in multiple substantive areas. There is more to American constitutional rights doctrine than tiered review, but the tiers are emblematic of the American approach to rights, and in particular its heavy reliance on categorical reasoning. Although the tiered review framework remains black-letter doctrine, it has been missing in action recently. In some of the highest profile rights cases (p.109) Page 11 of 34

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All Things in Proportion? The United States decided in recent years, including District of Columbia v. Heller67 (bearing arms) and Obergefell v. Hodges68 (same sex marriage), the Supreme Court has entirely elided the question of what level scrutiny applies. We believe that the Court’s reluctance to commit fully to the tiered review framework it has built over the years is symptomatic of the framework’s problems. We identify three serious pathologies associated with American rights review, and tiered review in particular: (i) judicial abdication, in the form of rational basis review; (ii) analytical incompleteness, when an explicit balancing stage is omitted; and (iii) instability, leading to reclassification and doctrinal incoherence. Compared to PA, each of these pathologies threatens rights protection in fundamental ways. Abdication

In its canonical applications, rational basis review leads American judges to abdicate their duty to protect rights, including property rights, expressly provided for by the Constitution. Under rational basis review, legislation will be sustained so long as it is rationally related to a legitimate government interest. The Supreme Court has stressed that legislature need not have the facts on its side: those challenging a classification subject to rational basis review have the burden of showing “that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker.”69 Put differently, those challenging the legislation “have the burden to negative every conceivable basis which might support it.”70 The underlying justification for abdication is unclear: either the claimed “right” is, in fact, not a right, having been read out of the Constitution; or the right is not important enough to deserve the judicial protection afforded to “fundamental” rights; or, through past episodes of balancing, the Court has determined that the right can never outweigh any reasonable public purpose pursued by the government. Further, the Supreme Court often portrays and uses rational basis as a kind of deference doctrine: it covers policy domains in which legislators, not courts, do the balancing. As regards property rights, the Court traded one rigid position (aggressive protection in the Lochner era) for another (abdication in the post-Lochner era). We think it is a bad strategic move for the U.S. Supreme Court, or any rights-protecting court, to treat a rights provision as either de facto absolute or de facto without force. It is also (p.110) indefensible, as a formal matter, to excise a right from the Constitution, yet that is what the Court has done.71 It is important to note at the outset that rational basis review is not always and everywhere utterly toothless. Even if this characterization captures the Supreme Court’s rational basis jurisprudence in broad strokes, it is less faithful to the practice of lower federal courts and state courts, which sometimes deploy meaningful scrutiny under the guise of rational basis review.72 And famously, the Supreme Court itself does sometimes strike down laws under rational basis Page 12 of 34

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All Things in Proportion? The United States review, leaving scholars scrambling to come up with new descriptions of the court’s review, such as “rational basis with bite.”73 To the extent that rational basis review translates to abdication only some of the time, the inconsistency speaks to the judicial need for a meaningful test, even as it feeds the doctrine’s reputation as a “persistently confused” area of constitutional law.74 The well-known Williamson v. Lee Optical of Oklahoma illustrates the Supreme Court’s relaxed approach to rational basis review.75 Less well-known is the lower court opinion, which shows what a more searching rationality review looks like. The case involved an Oklahoma statute that forbade opticians (who grind and duplicate lenses, and fit them to frames and faces) from selling their services and products without the prior authorization of either an ophthalmologist (a medical doctor specializing in eye care) or an optometrist (a licensed professional who diagnoses but does not treat eye disease, and who writes prescriptions for lenses). The law prohibited opticians from replacing old with new frames, or from duplicating existing lenses to insert into old frames, without the customer first obtaining a prescription from an ophthalmologist or optometrist; and it gave ophthalmologists and optometrists the authority to designate which optician a customer could use. Days before the statute was to enter into force, opticians asked a three-judge federal district court to strike it down as a violation of their property rights. Plaintiffs also claimed that the statute comprised an illegal delegation, to private parties, of the authority to determine who would do business as a dispensing optician in the state. Oklahoma claimed that the statute served the purpose of promoting better eye care. After extensive inquiry, the district court found that the effect of the law would be to put many opticians out of business—a total deprivation of the claimed rights—while providing no added benefit to public health.76 Under (p.111) PA, such findings can only lead to one result: the invalidation of the law as a disproportionate exercise of legislative power. Judge Wallace, writing for the court, recognized that the dispute was to be resolved under a rationality standard. But he did not regard rational basis as a strict deference posture insulating the statute from judicial review, but rather an obligation to verify that the state had not abridged rights in an arbitrary or unreasonable manner. Judge Wallace took pains to distinguish his approach from the kind of robotic formalism that had so discredited “reasonableness” review running up to the New Deal, incorporating both necessity analysis and balancing into the inquiry. Citing to what he understood to be stable precedent, he concluded that the state’s exercise of police powers would be justified only if the state could show (i) “that the interests of the public generally, as distinguished from [opticians], require such interference,” and (ii) “that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”77 He then disposed of the case in ways that anyone versed in PA Page 13 of 34

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All Things in Proportion? The United States would find familiar, finding the statute in violation of the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the same.78 The Supreme Court reversed, without a single word concerning the rights being pleaded, and without serious consideration of facts or policy. Instead, Justice Douglas, writing for a unanimous Court, simply abdicated: The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement … The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought … ‘For protection against abuses by legislatures the people must resort to the polls, not to the courts.’79 In this ruling, often cited as secure precedent, abdication also entailed an extraordinary act of lawmaking, the Court writing out of the Constitution rights previously recognized by the Court. (p.112) Arguably, this decision is one of the most poorly reasoned by the Court in any important case. The Court’s decision in Lee Optical contains virtually no rights reasoning whatsoever and eliminates any meaningful constitutional scrutiny, on due process and equal protection grounds, of most distinctions drawn in social and economic legislation, notwithstanding the potentially ruinous consequences for those affected.80 The decision is all the more striking for its contrast to a contemporaneous ruling by Germany’s Federal Constitutional Court (GFCC) on a similar issue. In the “Pharmacy Case” (Apothekenurteil) from 1958,81 discussed in Chapter 3, a druggist challenged a Bavarian law regulating pharmacies on the ground that it violated Article 12.1 of the Basic Law,82 which provides for occupational freedom. The law authorized the licensing of new pharmacies only when “in the public interest” and only when new stores would not threaten the viability of existing pharmacies. The GFCC’s opinion could hardly be more different from the Supreme Court’s in Lee Optical. The Court acknowledged the conflict between the public goals served by the statute and the individuals’ interests in professional freedom. The only solution, according to the Court, was balancing: “When one seeks to maximize both … equally legitimate … demands in the most effective way, then the solution can only lie in a careful balancing [Abwägung] of … interests.”83 The Court then engaged in an extended analysis, in which it outlined an early version of PA tailored to the specifics of Article 12.1. Ultimately, the pharmacist won the challenge. Page 14 of 34

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All Things in Proportion? The United States One point deserves special emphasis. If the Supreme Court in Lee Optical made claims governed by rational basis review virtually unwinnable, the GFCC did not go to the opposite extreme, making comparable claims impossible to lose. On the contrary, it announced a duty to optimize the values in opposition, which led to varied outcomes depending on the particulars of the case.84 Though a fledgling institution at the time, the GFCC did not tell rights claimants: “go to the polls, not the courts.” Rather, it fully accepted the responsibility that attends the power of judicial review. Taking a wider perspective, the GFCC’s steady commitment to PA has helped it avoid some problems that the Supreme Court created for itself. In the pre-New Deal era, the American Court committed itself to defending freedom (p.113) of contract and laissez-faire capitalism against market regulation, as if that defense was one of its central institutional missions; it then abandoned property rights altogether. In contrast, the German Court has consistently held that the Basic Law is “neutral” with respect to the kind of economic system or regulation fashioned by the legislator.85 Yet, that position has never entailed abdication.86 On the contrary, one of the major tasks of the GFCC has been to define the reciprocal limits of market regulation and property rights as German society and the economy have evolved. Its rulings have sometimes angered the Christian Democratic Right, sometimes the Social Democratic Left, but it has never, over more than six decades, lost its role in governance. The German Court would have failed had it embraced rigidity and absolutism. Incompleteness

The Supreme Court’s rights doctrines also include numerous bespoke tests, each used for a particular kind of rights claim. From the perspective of a judge who systematically uses PA to manage rights litigation, the Supreme Court’s variegated approaches can at times seem casual, or worse—unprincipled. The PA judge typically begins with a general discussion of the right being pleaded, as a matter of constitutional structure or theory, and in light of past rulings. The judge then turns to PA. If the act under review survives necessity analysis, then the proportionality stricto sensu stage will enable the judge to ensure that the measure under review does not infringe too much on the right, given the polity’s constitutional commitment to protecting rights. The judge thus begins with a relatively abstract construction of the right, and ends with analysis of its concrete importance, given the facts and policy context of the dispute at bar. Depending on the particular rights claim at issue, the American judge may leave out one or both of these steps. In our view, any mode of rights adjudication that does not squarely address the interests protected by the right in the course of its analysis is incomplete. The well-known case of United States v. O’Brien (1968) illustrates the point.87 Mr. O’Brien had burned his draft card, in violation of federal statutes, at a rally protesting the Vietnam War and military conscription. Although the case raised Page 15 of 34

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All Things in Proportion? The United States important questions about the government’s use of a statutory amendment to stifle protest,88 our focus here is on the Supreme Court’s (p.114) treatment of the right to “wordless” (now known as “symbolic”) speech. The Court mentioned but took no position on the question of whether the First Amendment covered O’Brien’s act.89 Instead, the Court formulated the following test: [W]hen “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.90 The Court did not distinguish a “compelling interest” from a “substantial interest”; on the contrary, it was implied that the “descriptive terms” listed were broadly synonymous. On the basis of this test, the Court upheld O’Brien’s conviction, since the draft card fulfilled an administrative function of communicating the rights and duties of the bearer. The judgment concluded in deafening silence on the question of whether the government’s interest did or did not outweigh O’Brien’s “alleged” speech right— the answer to which one would have learned in the balancing phase, had PA been used. The Court might also have balanced the contending values in its discussion of the nature of the government’s “important or significant” interest; instead, it marched through the test while saying virtually nothing about speech. To resolve such a case under a standard version of PA, the Court would have been required to consider the nature and scope of the right at play up front, and then to ensure that the right did not get lost in the analysis of the government’s position at the end. (p.115) Instability

The third pathology is related to the first two. In the classic “bifurcated review” regime,91 judges are asked to sort cases into two bins—one marked strict scrutiny, the other strict deference (rational basis). Time and again, the Court has felt compelled to introduce an intermediate standard of review to mitigate these polarized positions. The construction of middle ground—intermediate review—also makes space for balancing; indeed, the standard may be little more than balancing. As such, it is also symptomatic of the dysfunctionality of classic Page 16 of 34

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All Things in Proportion? The United States two-tiered review. But the ad hoc introduction of new standards of review creates new problems. The two-tiered framework was at least rooted in a coherent distinction between economic liberties (downgraded in status) and “preferred” fundamental rights (upgraded in status). Dumping problematic cases into an inchoate intermediate bin, academic critics and dissenters on the bench charged, lacked any underlying principle. Because the Court has failed to evolve a coherent meta-theory of rights that helps it to coordinate sets of claims and standards of review, confusion and controversy are common, particularly when new claims arise. To illustrate, consider two important developments well known to students of constitutional law: the changing approach to gender discrimination under the Equal Protection Clause, and the revision of the Roe v. Wade framework for abortion rights. The Court’s approach to sex equality cases has famously followed a meandering course. The Court (i) originally subjected statutes that classified on gender grounds to rational basis review, then (ii) increased the scrutiny without formally changing the standard, even flirting with a version of strict scrutiny, before (iii) devising a new standard of intermediate scrutiny, which gradually drifted upward, becoming more stringent. One cause of evolutionary instability seems clear: the inherited two-tier framework offered the Court little opportunity to measure harms of gender distinctions against benefits, a problem that the intermediate tier’s emphasis on balancing would seemingly help to resolve. In the mid-twentieth century, the Supreme Court subjected sex classifications to rational basis review and often upheld them.92 As traditional attitudes about gender roles began to change, it became apparent that rational basis review provided women with no meaningful guarantee to equal protection. In Reed v. Reed (1971), a unanimous Court struck down an Idaho law giving (p.116) preference to men in the administration of estates.93 But the decision lacked the characteristic deference to legislative judgments that is associated with rational basis. The state’s justification for the preference was to avoid controversy when more than one person applied to administer a will. The Court summarily dismissed this rationale, criticizing the policy as “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”94 The Court added, without further explanation, that “whatever may be said as to the positive values of avoiding intra-family controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.”95 Even as Reed pledged allegiance to rational basis review, it marked a sharp departure from it. Not surprisingly, the Reed approach did not long endure. Two years later, in Frontiero v. Richardson (1973), a plurality of the Court pushed to shift gender into strict scrutiny, by designating gender-based classification as suspect.96 The dispute in Frontiero concerned a federal policy that made it easier for male military personnel, compared to female counterparts, to claim their spouses as Page 17 of 34

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All Things in Proportion? The United States dependents for benefits purposes. The appropriate standard of review for gender-based restrictions became the focal point of the case, fracturing the Court. The proposition that sex classifications should be subjected to strict scrutiny found only four votes, whereas three members would rely on Reed for a “rational basis with bite” standard. The status of sex classifications in equal protection analysis reached an equilibrium of sorts in 1976, with Craig v. Boren.97 Reed and Frontiero had demonstrated that no majority of the Court was satisfied with analyzing sex classifications under a rational basis deference standard, and no majority was willing to commit to strict scrutiny. In Craig, the Court resolved this impasse by creating a new option: an intermediate standard of review for classifications relating to sex. The case concerned an Oklahoma statute prohibiting the sale of low-alcohol beer to women younger than age eighteen, and to men younger than age twenty-one. Writing for a bare majority, Justice Brennan articulated a new standard of review, which he claimed to have distilled from cases such as Reed and Frontiero. “To withstand constitutional challenge,” Brennan wrote, “previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”98 The government objective asserted here was public safety, and the state had sought to demonstrate the statute’s fit with statistical (p.117) evidence showing that men ages eighteen to twenty were much more likely to be arrested for drunk driving than women of the same age. The Court concluded that this evidence was insufficient, given that only two percent of this cohort was found to drive drunk. Brennan’s move won the support of a majority, but a majority also refused to endorse the standard unreservedly. In the years after Craig v. Boren, the Court accepted and applied an intermediate scrutiny standard to sex classifications in a number of cases.99 Yet, beginning with Personnel Administrator v. Feeney (1979),100 some justices began railing against the stringency of the Craig v. Boren test, noting that it required “an exceedingly persuasive justification” from the government. In striking down Virginia Military Institute’s (VMI) exclusion of women in 1996, Justice Ginsburg for the Court interpreted “an exceedingly persuasive justification” not merely as a characterization of the standard, but as the standard itself.101 The Court found fault with Virginia’s proffered defense— that the exclusion of women was necessary to achieving VMI’s mission—because some women applicants could meet VMI’s standards. Ginsburg’s ratcheting up of intermediate scrutiny did not escape the criticism of Chief Justice Rehnquist, concurring, or Justice Scalia in dissent. Chief Justice Rehnquist faulted the new language as having less “content and specificity” than the older formula102— which he had previously criticized for opacity.103 For his part, Justice Scalia

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All Things in Proportion? The United States excoriated the majority at length for its application of intermediate scrutiny in a manner that, in his view, amounted to strict scrutiny.104 The Supreme Court’s development of an intermediate scrutiny standard reflects how ill-equipped the bifurcated review regime is for evaluating the range of gender-based distinctions in public law. As Sullivan has written: “Intermediate scrutiny, unlike the poles of the two-tier system, is an overtly balancing mode.”105 While introducing a middle tier of scrutiny may have helped the Court resolve one difficult case, it failed to offer a stable solution to the future stream of cases to arrive. In contrast, judges who use PA can sidestep threshold squabbles about what the appropriate test is, and focus (p.118) their attention on the core substantive question: how the values in tension should be weighed. The “undue burden” standard in abortion cases, too, amounts to an admission that the Court could not do without balancing as “pro-life” dominated state governments brought relentless challenges to Roe v Wade. In tiered review terms, Roe (1973) held that restrictions on abortion before the point of viability would be subject to strict scrutiny.106 Given the Court’s rightward shift over the following two decades, many expected that the Court would overturn Roe in Planned Parenthood v. Casey (1992). The Court’s use of strict scrutiny in abortion cases had been under attack on the Court since 1989, with a strong plurality of Justices urging that restrictions on obtaining abortions, short of prohibition, should be subject only to rational basis review.107 While Casey’s lead plurality opinion, signed by only three justices, preserved the right to terminate pregnancies before the point of viability, it offered an undue burden standard to replace strict scrutiny as the framework for evaluating restrictions,108 in situations in which “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”109 The plurality opinion conceded that Justices might agree on the standard and yet disagree on its application in a concrete case: “Even when jurists reason from shared premises, some disagreement is inevitable. That is to be expected in the application of any legal standard which must accommodate life’s complexity. We do not expect it to be otherwise with respect to the undue burden standard.”110 Although the Casey dissenters alleged that the undue burden standard was an unprecedented and unprincipled invention,111 judges had previously undertaken undue burden analysis when asked to balance competing interests, not least in the dormant Commerce Clause cases. In our view, the proliferation of undue burden standards in U.S. constitutional law is not accidental. The standard is balancing by another name; and, around the world, constitutional courts using PA have settled on the undue burden standard for testing the lawfulness of state limits to abortion services (Chapter 6). In the United States, the introduction of intermediate scrutiny into areas previously governed by the bifurcated review regime is symptomatic of the mismatch between rigid doctrinal structures, on Page 19 of 34

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All Things in Proportion? The United States one hand, and the demands placed on judges by (p.119) complex disputes raising multiple constitutional interests and values, on the other. Consider again the sex discrimination cases. A bifurcated, two-tiered framework put judges in an impossible position. The choice between strict (fatal) scrutiny or strict deference commits one either to uphold, or to strike down, virtually every gender distinction in law. The incentive to find, or create, a flexible middle ground is powerful. Once strict scrutiny had come to mean “fatal in fact,” the middle ground simply included the kind of balancing that was initially built into the framework. PA offers a more stable, principled alternative.

III Bringing Proportionality Back in As a unified framework of analysis incorporating every important element of tiered review, PA avoids the chronic conflict and confusion that has threatened to overwhelm the Supreme Court time and again. Yet, as we have shown, necessity and balancing tests have deep roots in American doctrine. These points strongly support the conclusion that American judges could, by embracing proportionality, enhance the consistency and transparency of rights adjudication while keeping faith with historical practices. Here we suggest how they might do so, and respond to objections. Qualifying Rights

A condition for embracing proportionality is acceptance that government may limit the enjoyment of rights in pursuit of a sufficiently important public interest. Judges must then understand their mission as, in part, evaluating the justifications proffered by public officials for doing so. These conditions are met in the United States. The various forms and degrees of scrutiny the Supreme Court has devised over the years to adjudicate rights belie any claim that rights are absolute.112 The tests that they make up are the means by which courts process the justifications offered on behalf of challenged measures. What would it look like for American courts to engage more actively with proportionality? Existing doctrinal materials point to how judges might amplify and regularize the elements of PA presently available. An obvious way to proceed would be to reconceptualize the tiered regime itself, focusing on the relative importance of different rights claims. Justices Marshall (p.120) and Stevens, for example, have proposed reworking the current framework into a “sliding scale” of review.113 Both pointedly attacked the Court’s “rigidified approach to equal protection analysis”114 in favor of an approach that has affinities with Alexy’s Law of Balancing, and Barak’s Rule of Balancing (Chapter 2). The more government action threatens the interests or values at the core of any right—the closer it strikes to the heart of the reason the right deserves protection as a right—the greater the government’s justificatory burden. For Stevens, a single rationality standard could do the trick. Stevens argued that it would be, presumptively, easier to provide a legitimate reason for treating Page 20 of 34

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All Things in Proportion? The United States people differently on the basis of profession than, say, on the basis of race.115 PA subjects such intuitions to testing; they are always rebuttable at the balancing stage, hence the obligation to balance in light of the particular facts raised in every case. Of course, the single standard could just as well be labeled “strict scrutiny” or “proportionality.” Using the sliding scale approach consistently would update the original logic of balancing under strict scrutiny: what qualifies as a “compelling” interest for overcoming a rights claim varies with the importance of the right, and the intensity of the infringement. In this account, what one now sees as separate standards of review would appear as points along a continuous spectrum, within a common theoretical and methodological approach to rights protection.116 To get to PA properly understood, judges would have to treat, as distinct phases, (i) LRM testing and (ii) balancing. Justice Breyer, joined in his dissent in Heller by Justices Stevens, Souter, and Ginsburg, illustrated what proportionality review could look like in action in the context of that most quintessentially American of rights: the right to bear arms.117 The Second Amendment identifies a value to be maximized, subject to certain limitations. There is no question—and the majority did not suggest—that the right to bear arms meant that no restrictions (on any type of weapon, in any circumstance) were permitted. Under a proportionality approach, once the Court determines that the Second Amendment covers an individual’s right to bear arms outside of a militia context, the crucial questions will concern limits, which PA is tailor-made to address. In his dissent, Breyer explicitly developed a version of PA that he then applied to show that reasoning about limits could proceed in a principled, transparent way. There is little question that PA would have provided a surer guide to future cases in this area than the majority’s heavy reliance on the historical record. In declining even to suggest a standard of review under which to (p.121) evaluate state limitation of the right to bear arms, Justice Scalia provided no guidance for future cases. But a case like Heller is a rarity in that it presents a question of first impression about the existence of a right under one of the Constitution’s first ten amendments.118 The twenty-first-century Court almost never writes on a blank slate. Although other areas of constitutional law could benefit from the introduction of the proportionality principle, we also recognize that good reasons may exist for the treatment of some rights—such as the Third Amendment’s prohibition against quartering—as clear rules. Still, the Court has already consistently held that nearly all of the rights found in the Constitution are relative, not absolute. Indeed, American rights doctrine is heavily structured by what are, in effect, judicially written limitation clauses. Given that the Court already subjects all important rights—including those expressed in absolute terms (e.g., the First Amendment)—to a litany of qualifications, courts would be justified in asking the following two questions. First, why does a necessity Page 21 of 34

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All Things in Proportion? The United States standard not cover every right, that is, why should government be allowed to infringe more on any right than is necessary to achieve a proper purpose? Second, do laws that pass the necessity test nonetheless infringe more on the right than is tolerable given our constitutional commitments to protecting rights? In responding to these questions, judges would begin the work of reconsidering rights doctrine in terms of proportionality, while failure to do so would, in most cases, weaken the effectiveness of rights protection. The Scope of Rights

A necessary task of rights review is defining the scope of a right: that is, determining the range of conduct that the right covers. PA is an analytical procedure; it distributes burdens variously, but is otherwise without content. Nonetheless, where it flourishes, judges use PA as a vehicle for developing theories of the nature and scope of rights, in their various permutations (Chapter 2). The PA judge typically begins with a preliminary discussion of the nature and purpose of the pleaded right, and of the relevance of any past rulings. If the court arrives at the final balancing stage, it will consider how much of the “essence” of the right is implicated in the dispute. The greater the incursion into the essential core of a right, the weightier the public interest must be to justify the incursion. Thus, a court can recognize an interest in consuming child pornography as falling within the outer limits of free expression, while leniently permitting the government to regulate the harms that (p.122) result from the sexual exploitation of children, including by criminalizing the possession of child pornography.119 That same court might consider interests in political speech and protest to be far weightier, and therefore entitled to strong protection. Any expressive interests in child pornography are de minimis, whereas the value of political speech constitutes part of the essential core of that freedom. The multistage proportionality framework facilitates the drawing of such distinctions. As Mattias Kumm observes, a system’s approaches to the questions of a right’s scope and a right’s limitation are logically linked.120 So it is in the United States. Strict scrutiny, as it presently operates, stacks the deck in favor of the right. It makes sense, then, that the Court would be reluctant to hold, for instance, that the full measure of First Amendment protection extends to commercial speech when doing so would lock it into an analysis that steamrolls over limits on, say, liquor advertisements, without regard to relevant differences between advertising and forms of expression nearer to the essential core of the First Amendment.121 A stingy approach to the limitation of rights goes hand in hand with a stingy approach to the scope of rights: when the decision that a right is in play is so consequential, the borders of that right’s protection must be carefully policed. PA offers a different model. As a balancing framework, PA expressly allows for the possibility that prima facie rights claims may be outweighed by competing values, as long as the other steps of the proportionality analysis are

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All Things in Proportion? The United States satisfied. In the proportionality world, judges can afford to define the scope of rights broadly (Chapter 2). In the United States, free speech jurisprudence recognizes several carve-outs for expressive activities that merit less than the full measure of First Amendment protection, including fighting words,122 obscenity,123 commercial speech,124 and advocacy of imminent lawless action.125 In a PA context, a court could arrive at these same outcomes through an explicit, rather than disguised, balancing process. It would be acknowledging that the expressive interests that are at stake in these forms of conduct are not as important as those that occupy (and define) the heartland of First Amendment speech. PA enables a court to sidestep the intractable border skirmishes that the American (p.123) penchant for rules and exceptions inevitably generates. As a strategic matter, we see no advantage to an approach that seeks to determine, once and for all, on which side of a line a particular class of cases falls, or where to draw the lines separating rules from exceptions in the first place (Chapter 2). In any event, American courts have never actually succeeded in banishing balancing from their judicial toolkit. Pushed out the front door, balancing comes in through the back, where it is used to create ever more nuanced rules and exceptions.126 The PA approach builds a flexible concern for context into the framework of review, and it reduces the likelihood that judges will paint themselves into doctrinal corners. Applying PA does not prevent courts from relying on modes of categorical reasoning. A court may categorically exclude certain reasons for limiting a right, in order to signal that it intends to diligently protect important constitutional values that inhere in that right (Chapter 2).127 Suppose, for instance, that the government seeks to ban speech promoting certain social or political theories, on the grounds that they are incorrect and harmful. Under existing First Amendment doctrine, the Supreme Court will not credit this rationale for government action, not because the theories are not false or harmful—they could be—but because the Court’s underlying theory of freedom of expression, as it has accreted over time, excludes reasons for state action based on viewpoint discrimination.128 Similarly, a PA court sharing the same conception of First Amendment values could exclude such reasons at the legitimacy (proper purpose) stage, or decline to give them much (if any) weight in the final balancing phase. A move to PA would not require abandoning categorical reasoning, but it does package it somewhat differently. Objections

We have tried to make the best case for adapting PA for use in the United States, but we recognize that there are countervailing considerations. Here, we discuss some of the important institutional and historical reasons why PA might appear to be a problematic fit for the American courts.

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All Things in Proportion? The United States Formal differences between the American system of judicial review and more modern systems of constitutional justice are obvious and important. Most powerful constitutional courts in the world today understand their primary mission to be the robust protection of fundamental rights, given that their respective constitutions command as much (Chapters 1–3).129 Modern constitutions: announce rights before state structures are constituted; qualify rights with express limitation clauses; and designate a trustee court as (p.124) its authoritative interpreter. Most constitutional courts—and the apex courts of Canada, India, and South Africa to different degrees—are not limited to “case or controversy” jurisdiction (Chapter 1). Cases come to them in diverse ways, often in the form of abstract constitutional questions about the meaning, scope, and application of rights. Trustee courts have an obligation to answer these questions, no matter how controversial. Indeed, settling deeply “political” conflicts is basic to their job description. The American Supreme Court is not a specialized constitutional court, and the U.S. Constitution does not confer on the Court the power of constitutional judicial review. Rights were only enumerated in supplementary amendments, after the organs of government had already been established. The Constitution does not give interpretive primacy to the judiciary; in fact, all three branches, being coequal, routinely assert the same powers and duties to interpret and apply rights faithfully.130 Although any claim to the effect that the Supreme Court remains only a case or controversy court would do violence to reality,131 the “case or controversy” limitation of Art. III comprises an important part of the Supreme Court’s historical identity, constraining the Court in meaningful ways. These organic differences must impact how rights are understood and how rights claims are adjudicated. Elsewhere, most powerful constitutional courts face no serious formal challenge to their legitimacy as rights protectors. Indeed, they would seriously undermine their political legitimacy if they were to abdicate their rights-protecting role, say, by adopting a rational basis standard as the norm for protecting rights. Even in Westminster systems, where legislators retain the “last word” in conflicts with rights-protecting courts, judges have adopted PA (Chapters 1, 3). In the United States, the specter of original sin (Marbury)132 and its evil potentials (Lochner),133 the defensive discourse of the counter-majoritarian difficulty,134 and anxiety over what has become de facto judicial supremacy, have meant that any move by the courts away from deference and toward robust rights protection needs special justification.135 At the same time, counter-pressure flows from the fact that some of the most important American rights are expressed in absolute terms, as rules to be enforced, which makes adopting a blanket rational basis posture deeply problematic, if not indefensible.

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All Things in Proportion? The United States In the United States, some judges and academic lawyers have always portrayed balancing as antithetical to the proper functioning of the judiciary. We reject this portrayal, not least, as unsupported by the facts. In the post-New Deal period, when the U.S. Supreme Court moved to protect fundamental rights more robustly, it too began to look like a modern, rights-protecting (p.125) constitutional court and less like a case or controversy court. The Court relaxed standing doctrines, and abstract review—in the form of facial challenges, for example—emerged and became routine; and the Court frankly assumed a more oracular role as a constitutional lawmaker.136 One might say that, for the first time, a modern system of constitutional justice began to appear in America, with rights protection at its core.

Conclusion This chapter described and assessed the evolution of American rights doctrine with reference to constitutional law and practice elsewhere. In Chapter 2, we developed a theoretical explanation of why rights-protecting judges would be attracted to proportionality. PA provides the best methodology currently available for adjudicating qualified rights; and it offers (partial) solutions to certain intractable legitimacy dilemmas generated by judicial supremacy (trusteeship). In Chapter 3, we analyzed the emergence and global diffusion of proportionality. Today, PA constitutes the defining doctrinal core of a global, rights-based constitutionalism. Here, we have sought to bring these considerations to bear on the American case, not least because the United States is often characterized (especially by non-Americans) as an outlier, an island unto itself, a legal system that refuses to participate in the transnational conversation about rights adjudication that has exploded into prominence in recent years. We would agree that the American constitutionalism is ill-equipped either to engage in inter-judicial dialogues across borders, or to exercise positive influence on the evolution of global constitutionalism. But it is not true that the American system has rejected proportionality and balancing. Instead, elements of PA have deep roots, and the Supreme Court, try as it sometimes does, has never been able to dispense with balancing when it adjudicates rights. As a normative matter, we have argued that the American system would benefit from standardizing rights doctrine within a version of PA. To take just one example, we have identified three endemic pathologies of tiered review, and shown how a turn to PA could mitigate these pathologies, or eliminate them altogether. We have stressed that one of the virtues of PA is that it allows a court to maximize its own flexibility, with reference to the constitutional values and interests it protects. As Chapter 3 has shown, how trustee courts actually use PA varies across jurisdictional boundaries. If the Supreme Court (p.126) were to develop a more formalized version of PA, along the lines that we have argued, it would be an American creation. In any event, the problem of balancing in American rights adjudication has once again risen to the top of the agenda. One hopes that, this time, American courts will consider more deeply the merits of Page 25 of 34

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All Things in Proportion? The United States what is the most tried and tested approach to balancing: the enforcement of the proportionality principle. Notes:

(1) Aleinikoff (1987); Sullivan (1993). (2) For a detailed and careful discussion of the history of balancing in U.S. constitutional doctrine, its evolution over time, and its similarities to and differences from balancing in the continental tradition, see Bomhoff (2013). (3) United States Supreme Court (2008b); discussed below; see also Cohen-Eliya and Porat (2013). (4) Compare Möller (2017: 130–47), who argues that the United States could not introduce elements of PA without also adopting the other constituent features of the global model of constitutional rights. (5) Arguably the most prominent battle over balancing within constitutional law played out in the mid-twentieth century, in the Supreme Court’s First Amendment jurisprudence; see Shapiro (1964). Aleinikoff (1987: 984–95) does not engage the modern proportionality principle at all. (6) Dworkin (1984); for critiques, see Greene (2018); Weinrib (2017). (7) See Mathews and Stone Sweet (2011) and Sullivan and Frase (2008) for more detailed analyses. We build here on the important research on strict scrutiny undertaken by Siegel (2006), and Fallon (2007). (8) Greenberg (1973). (9) See, for instance, United States Supreme Court (1967), noting that “there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” (10) U.S. Const., Art. I, sec. 8 (“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”). (11) Lawson, Miller, Natelson, and Seidman (2010: 5–8). (12) Manning (2014: 158). (13) Campbell (2017: 259). Campbell also notes that, at the time of the Founding, the task of giving form to those rights was generally understood to fall to the legislature, not courts. See also Greene (2018: 109–13).

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All Things in Proportion? The United States (14) U.S. Constitution, Art. I, § 8, cl. 3: “The Congress shall have Power … [t]o regulate Commerce … among the several States … ” (15) United States Supreme Court (1829: 252). (16) United States Supreme Court (1877b). (17) United States Supreme Court (1877b: 470–2). (18) United States Supreme Court (1877b: 470). (19) United States Supreme Court (1890). (20) United States Supreme Court (1890: 319, 329–30). (21) United States Supreme Court (1890: 329). (22) United States Supreme Court (1890: 322). (23) United States Supreme Court (1902: 151). (24) Court of Justice of the European Union (1979). For an analysis of the impact of mutual recognition on European market integration, see Maduro Poiares (1998) and Stone Sweet (2004: ch. 3). (25) See Gillman (1992: 629–34). (26) Compare Plumley v. Massachusetts, United States Supreme Court (1894b), which upheld a state law regulating the sale of margarine on consumer protection grounds, with Schollenberger v. Pennsylvania, United States Supreme Court (1898), which struck down as unconstitutional a state law regulating the sale of margarine on LRM grounds. (27) United States Supreme Court (1898: 29–30) (Gray, J., dissenting). (28) United States Supreme Court (1970). (29) United States Supreme Court (2007). (30) United States Supreme Court (2007: 346). (31) United States Supreme Court (2007: 348–9) Scalia, J., concurring). (32) United States Supreme Court (2007: 349) (Thomas, J., concurring). (33) United States Supreme Court (1951: 354). (34) United States Supreme Court (1992: 454–5).

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All Things in Proportion? The United States (35) United States Supreme Court (2007: 360) (Alito, J., dissenting); United States Supreme Court (1994: 422), characterizing standard as “rigorous scrutiny” (Souter, J., dissenting). (36) Winkler (2006a). (37) Shaman (1984: 162–3). (38) United States Supreme Court (1942c: 129–30), equating rational basis review with the administrative law standard of arbitrary and capricious review. (39) Gillman (1992: 640–7). (40) United States Supreme Court (1938: 153 n. 4). (41) It is often asserted—not least, in the opinions of the Supreme Court—that strict scrutiny originated in equal protection cases dating from the 1940s. But, while the phrases “strict scrutiny” and “most rigid scrutiny” appear in Skinner v. Oklahoma and Korematsu v. United States, respectively, the Court did not actually apply that standard’s defining tests. See United States Supreme Court (1942: 541, 1944: 216), Siegel (2006: 364–80), and White (1996). (42) Siegel (2006: 394). (43) Shapiro (1966: 76–8). (44) United States Supreme Court (1946: 509). See also United States Supreme Court (1939: 161). (45) United States Supreme Court (1951b). (46) See, for instance, United States Supreme Court (1959b: 139–44) (Black, J., dissenting); Frantz (1962); Meiklejohn (1961). (47) United States Supreme Court (1957a). (48) United States Supreme Court (1957: 262) (Frankfurter, J., concurring). (49) Barak (2010). (50) See United States Supreme Court (1959b: 127); United States Supreme Court (1959a: 79–81). (51) United States Supreme Court (1961a: 610) (Brennan, J., concurring and dissenting), emphasis added. (52) United States Supreme Court (1963). For further discussion, see Siegel (375–6) and Mathews and Stone Sweet (2011: 134–6).

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All Things in Proportion? The United States (53) Tussman and tenBroek’s influential article criticized the Court’s mid-century equal protection jurisprudence as insufficiently rigorous, and anticipated some of these later developments (1949). (54) Gunther (1972). (55) Rubin’s analysis (2000: 4) is telling: “In the courts, strict scrutiny is essentially invoked, not employed. Despite its name—strict ‘scrutiny’—it ordinarily amounts to a finding of invalidity, not a tool of analysis.” (56) United States Supreme Court (1978: 793). (57) As Vicki Jackson and others have noted, there have been some contexts in U.S. constitutional law in which balancing and proportionality have persisted (2015: 3104–6). Still, open appeals to balancing and proportionality within the tiered structure of review at the heart of American rights review are rare. (58) To give just two examples, the Mathews v. Eldridge framework relies on a balancing analysis to determine what due process requires in concrete situations, United States Supreme Court (1976a), and restrictions on the right to vote are evaluated by weighing their burdens and benefits, United States Supreme Court (2008a). (59) As Siegel (2006: 398–9) points out, the Court was slow to apply the compelling state interest test in racial discrimination cases because the narrow tailoring inquiry was sufficient to ferret out illicit motives. (60) Fallon (2007: 1308–11); Rubenfeld (1997: 428). (61) Indeed, as Siegel (2006: 394–5) explains, Justices Black and Douglas, who prioritized rights protection, originally declined to join opinions applying strict scrutiny, because they did not consider it stringent enough. (62) Greene (2011). (63) Greene (2018). (64) U.S. Supreme Court (1905: 69) (Harlan, J., dissenting). (65) U.S. Supreme Court (1905: 69–71) (Harlan, J., dissenting). (66) Greene (2018: 101). (67) United States Supreme Court (2008b). (68) United States Supreme Court (2015). (69) United States Supreme Court (1981: 464). Page 29 of 34

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All Things in Proportion? The United States (70) United States Supreme Court (1993: 314–15). This case involved an equal protection challenge, but rational basis review doctrine is similarly permissive in other contexts. (71) See Ely (1992), and Epstein (1985). (72) Eyer (2018: 1341–56). (73) The classic cases are City of Cleburne v. Cleburne Living Center, Inc., United States Supreme Court (1985), and Romer v. Evans, United States Supreme Court (1996b). Gunther (1972: 12) described “equal protection bite without ‘strict scrutiny’ as “a surprising new development” already in 1972. (74) Eyer (2018: 1370). (75) United States Supreme Court (1955). (76) U.S. District Court for the Western District of Oklahoma (1954: 135, 144 n. 37). (77) U.S. District Court for the Western District of Oklahoma (1954: 137), quoting Lawton v. Steele, United States Supreme Court (1894a: 137). (78) The use of the Equal Protection and Due Process Clauses to police restrictions on the practice of the profession is a bit of a “constitutional workaround,” see Tushnet (2008). As Kurt Lash’s recent study confirms (2014), the Privileges and Immunities Clause of the Fourteenth Amendment was likely understood originally to protect the right to practice a profession, but the Supreme Court effectively gutted the clause in the Slaughterhouse Cases. Chased out of one clause of the Fourteenth Amendment, the right to practice a profession sneaked back in through others, and in particular, the Due Process Clause. (79) United States Supreme Court (1955: 488), quoting Munn v. Illinois, United States Supreme Court (1877a). (80) Recent originalist scholarship has also found fault with Williamson-style rational basis review. McGinnis (2016: 518) argues that “the original meaning of the Fourteenth Amendment likely requires more searching judicial review of economic legislation, particularly occupational licensing, than the post-New Deal consensus provides.” (81) German Federal Constitutional Court (1958b). (82) Article 12.1 states, “All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The

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All Things in Proportion? The United States practice of an occupation or profession may be regulated by or pursuant to a law.” (83) German Federal Constitutional Court (1958b: 404–5). (84) For an overview of the jurisprudence, see Jarass and Pieroth (2012: 334–58). (85) The leading decision is the Investment Aid I case, German Federal Constitutional Court (1954b). (86) For a telling comparison of German and American approaches to property rights as constitutional rights, see Alexander (2003). (87) United States Supreme Court (1968). (88) In 1965, Congress adopted an amendment to the Universal Military Training and Service Act of 1948 in part to deter those who would burn their draft cards in protest of the war. The circuit court, noting that O’Brien’s action was already punishable under a separate regulation, declared the amendment unconstitutional on the grounds that it was expressly designed to limit speech; U.S. First Circuit Court of Appeals (1967: 540–1). (89) United States Supreme Court (1968: 376): “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity.” (90) United States Supreme Court (1968: 376–7). (91) White (1996: 301). (92) See, for instance, Hoyt v. Florida, United States Supreme Court (1961b), upholding a Florida law barring women from being selected for jury service unless they volunteered; and Goesaert v. Cleary, United States Supreme Court (1948), upholding a Michigan law banning women from serving as bartenders, unless they are the wives or daughters of male bar owners. (93) United States Supreme Court (1971: 76–7). (94) United States Supreme Court (1971: 76). (95) United States Supreme Court (1971: 76–7). (96) United States Supreme Court (1973c: 682).

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All Things in Proportion? The United States (97) United States Supreme Court (1976b). (98) United States Supreme Court (1976b). (99) Including Califano v. Westcott, United States Supreme Court (1979c), which applied intermediate scrutiny to unemployment benefits provided by the Social Security Act to a father, but not to a mother; Orr v. Orr, United States Supreme Court (1979a), which applied intermediate scrutiny to an Alabama statute under which husbands, but not wives, could be required to make alimony payments; and Califano v. Webster, United States Supreme Court (1977), which applied intermediate scrutiny to benefits provided by the Social Security Act that favor female wage earners over similarly situated male wage earners. (100) United States Supreme Court (1979b). (101) United States Supreme Court (1996c: 531). (102) United States Supreme Court (1996c: 559) (Rehnquist, C.J., concurring in the judgment). (103) United States Supreme Court (1976b: 219–21) (Rehnquist, J., dissenting). (104) United States Supreme Court 1996c: 570–6 (Scalia, J., dissenting.) (105) Sullivan (1993: 297). (106) United States Supreme Court (1973a: 155). (107) United States Supreme Court (1989: 517–19) (plurality opinion). (108) United States Supreme Court (1992b: 877). (109) United States Supreme Court (1992b: 877). (110) United States Supreme Court (1992b: at 878). (111) United States Supreme Court (1992b: 964) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part, describing the undue burden standard as “created largely out of whole cloth by the authors of the joint opinion”). (112) As Winkler has shown (2006b), even in the field of so-called “fundamental” rights, the protection offered by the Court varies widely. (113) See Fleming (2006) and Goldberg (2004: 519–24). (114) United States Supreme Court (1973b) (Marshall, J., dissenting). (115) United States Supreme Court (1985: 452–3) (Stevens, J., concurring). Page 32 of 34

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All Things in Proportion? The United States (116) United States Supreme Court (1976b: 212) (Stevens, J., concurring, arguing that cases in different tiers “actually apply a single standard in a reasonably consistent fashion”). (117) United States Supreme Court (2008b: 681–8) (Breyer, J., dissenting). (118) Greene (2009). (119) In a leading child pornography case, R. v. Sharpe, the Canadian Supreme Court held that a provision of the Criminal Code, as applied to Mr. Sharpe, limited his freedom of expression but was justified as a proportional measure designed to protect children from exploitation; Supreme Court of Canada (2001). The approach thus contrasts with categorical, rule-based approaches to rights protection seeking to dispense with balancing once the nature and scope of the right have been defined. In this latter approach, a court might decide that Mr. Sharpe’s rights were not abridged, since child pornography is not a protected form of expression, per se; see New York v. Ferber, United States Supreme Court (1982), holding that child pornography is beyond the limits of First Amendment protection. (120) Kumm (2006: 347). (121) United States Supreme Court (1980). (122) United States Supreme Court (1942a). (123) United States Supreme Court (1957b). (124) United States Supreme Court (1996b). (125) United States Supreme Court (1969). (126) See Aleinikoff (1987: 963–71). (127) Pildes (1994). (128) Pildes (1994). (129) Comella (2009: 36–54). (130) Amar (2005); Kramer (2004). (131) Shapiro and Stone Sweet (2002: ch, 6). (132) U.S. Supreme Court (1803). (133) U.S. Supreme Court (1905). (134) Bickel (1962). Page 33 of 34

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All Things in Proportion? The United States (135) Ely (1980). (136) Shapiro and Stone Sweet (2002: 347–75); Greene (2014).

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Constitutional Dialogues

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

Constitutional Dialogues Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0005

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

In previous chapters, we developed a theory of proportionality that blends strategic and legal factors against the background of a global turn towards rights-based constitutionalism. Judges are attracted to PA because: it neatly “fits” the structure of qualified rights; it provides a means of prioritizing rights protection while mitigating the dilemmas of 2-against-1 and judicial supremacy; and it furnishes a stable framework for argumentation, justification, and dialogic Page 1 of 38

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Constitutional Dialogues engagement across branches of government. We then charted the global diffusion of proportionality. In embracing PA, courts create new systems of constitutional governance, which they manage through enforcement of the proportionality principle. From this perspective, a court’s success will be measured by the extent to which it induces all other lawmaking officials to integrate proportionality considerations into their decision making. Insofar as those officials do so, they will strengthen the political legitimacy of both PA and the apex court, as the caretaker of the system. In this chapter, we focus on a tension that typifies the existential condition of any apex court seeking to maximize systemic effectiveness.1 On the one hand, courts must be capable of robustly enforcing rights, which will at times entail invalidating acts of government officials. On the other hand, even a trustee court that possesses impressive powers on paper will fail if the other branches of government regularly oppose it. The latter’s support cannot be presumed. Indeed, we proceed on the assumption that officials placed under the constitutional court’s supervision—legislative majorities, administrative agencies, judges of the private law—not only value their autonomy, but may well choose to resist rulings that would place them under the tutelage of constitutional judges. The empirical question, then, is how can a court build effectiveness while inducing the cooperation of the other branches of government? Our response is two-fold. First, courts—trustees in particular— possess (p.128) strong institutional advantages when dealing with resistance to their important decisions, which they can use strategically to incentivize compliance. Second, a court will succeed only if it is able to sustain rights-based, dialogic engagement with those officials whose lawmaking it supervises. Enhancing the effectiveness of any system of constitutional justice depends critically on the tenor and outcome of such dialogues. We argue that PA provides an infrastructure for the construction of dialogic jurisprudence. It is through PA that a constitutional court authoritatively delineates “zones of proportionality,” within which policymakers enjoy meaningful policy discretion, albeit within guidelines set by the court. Analyses of “constitutional dialogues” have become routine since the concept itself was first articulated in Fisher’s 1988 book on the interdependence of constitutional and legislative development in the United States.2 The framework was then adapted for research on the impact of European constitutional courts by Stone Sweet,3 before emerging, in somewhat different form, as a dominant approach to Canadian constitutional politics through the seminal work of Hogg.4 Constitutional dialogues, which take place in the aftermath of important constitutional rulings, register the impact (from scant to significant) of rights jurisprudence on the decision making of all other lawmakers. Such dialogues function to transpose the rights found in the charter—which are secondary rules binding on government—as primary rules, most importantly, in statutes (Chapter 1). Dialogues may be conflictual. Parliamentary majorities, ordinary judges, and Page 2 of 38

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Constitutional Dialogues administrators may seek to limit the scope of unwanted rulings, or to resist them altogether, knowing full well that acts of resistance may well prompt another round of review by the court. Dialogues may be cooperative. These same officials may welcome, or at least tolerate, the rulings of constitutional courts, insofar as they produce significant benefits to them and the polity as a whole. Rulings may help to break bargaining impasses and broker compromises, reduce legal uncertainty, and resolve constitutional conflicts between branches of government. These logics are found within every relatively effective system of judicial governance; and they typically serve to bolster the political legitimacy of judicial review insofar as such benefits counterbalance costs. This chapter examines dialogues that play out across branches of government, between apex courts and other institutions. We consider, in turn, how constitutional courts interact with legislatures, administrative institutions, and the courts and lawmakers responsible for the private law. (p.129)

I The Legislature Dialogues between constitutional judges and legislatures are basic features of constitutional governance insofar as they connect, as interdependent processes, (i) the construction of the constitutional law and (ii) statutory lawmaking. Where these processes are tightly interdependent—a situation known as “coordinate construction”5—constitutional politics are legislative politics. The court will routinely bring rights considerations to bear on the legislature’s decisions, helping to determine outcomes. And the parliament will engage in quasi-judicial reasoning, including proportionality decision making, when deciding how to protect rights, or to implement the court’s rights jurisprudence. Yet in many systems, the court’s legislative impact is weak or non-existent. These points raise obvious questions for social scientists. How are dialogic interactions organized, and what factors explain a court’s impact on statutory lawmaking? What jurisprudential techniques do courts use to draw legislators into proportionality-based modes of reasoning? Why would a government and its parliamentary majority, mindful of their own prerogatives, accept the pedagogical authority of the court? Our approach to these questions is to combine the theoretical materials set out in Chapter 1 with research on what courts actually do when they engage parliament. After discussing the institutional determinants of impact, we examine the various ways in which courts can use their powers to enhance systemic effectiveness, beyond bluntly invalidating statutory provisions as unconstitutional. The availability of these remedies facilitates the development of dialogic constitutional politics. We then examine how each stage of PA affords courts opportunities to delineate the zone of proportionality.

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Constitutional Dialogues Determinants

Four variables largely explain the extent of the capacity of a constitutional court to influence legislative outcomes.6 The first factor is jurisdiction and docket. For a court to sustain its influence on policy, it must have a steady case load. The secondary rules of adjudication (of jurisdiction and standing) determine who can activate the court, through what procedures. A court activated through multiple pathways, via (i) abstract review petitions, (ii) litigation in the lower or ordinary courts (concrete review), and (iii) individual complaints, manages a more complete system of constitutional justice than, say, where judicial review is strictly limited by a (p.130) “cases or controversy” requirement of the traditional American model (Chapter 1). The existence of abstract review is the most important determinant of the intensity of a court’s dialogues with the legislature. Abstract review petitions trigger the scrutiny of a statute before it has been enforced.7 In most systems managed by Kelsenian constitutional courts, opposition parties in parliament, and the executives of member states of federations, are empowered to refer legislation to the court, after it has been adopted by the legislature, but before its application in concrete situations. The procedure creates an immediate and direct dialogue between the court and the legislature that the legislature cannot escape. It also serves as a potent mechanism for monitoring the latter’s compliance with rulings after they are rendered, harnessing partisan interests in blocking or watering down the majority’s policy initiatives. In some systems, including Colombia and many other Latin America countries,8 individuals and public interest groups are authorized to file abstract petitions with the court; in the United States, individuals and interest groups can at times initiate preenforcement review of statutes through the filing of what are called “facial challenges.”9 The court’s position as a veto player is a second factor. Where adjudication is the only or most effective veto point available, those who oppose the parliamentary majority’s agenda, or wish to remove or revise statutes on the books, will consider adjudication. In many parliamentary systems, when a government enjoys a secure legislative majority, a high court may well comprise the only veto player in the policy process. In systems with bi-cameral legislatures (e.g., representing territorial or federal interests), and those with strong, independent presidents, legislative proposals are likely to run a gauntlet of veto points. When reform legislation has been gutted or compromised through the legislative process itself, the resulting statute may not be litigated at all; if it is, there will be less for the court to do. This second factor overlaps with the first, abstract review jurisdiction being a veto point in itself. Constitutional entrenchment of the charter of rights is the third variable. The rules governing constitutional amendment determine the probability of reversing the court’s constitutional lawmaking (Chapter 1). One defining feature Page 4 of 38

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Constitutional Dialogues of a trustee court is that its important rulings on rights are, in practice, virtually impossible to override through constitutional revision. In such contexts, legislators will have little choice but to engage the court. If the court invalidates a statute, while laying down guidelines for correcting it, then the choice facing the legislative majority will be either to comply with these guidelines, or to abandon its goals. In some systems, the constitution can be revised by parliament itself, as in Poland and Hungary (Chapter 1). In recent (p.131) years, parties in both countries have possessed such a super-majority, which they have used to mount assaults on constitutional courts through amendment (Hungary) and statutes (Poland) precisely in order to render systems of justice less effective.10 In systems in which parliaments themselves have adopted a charter of rights by statute (e.g., the UK and New Zealand), parliament possesses the last word, and can refuse to implement the court’s rulings. In these latter situations, one expects the effectiveness of the charter of rights, as an instrument of governance, to be weaker compared to situations characterized by judicial supremacy, other things equal (Chapter 1). The state of the court’s case law is the fourth determinant. If the court resolves a steady stream of disputes, while performing its fiduciary duties in good faith, it will construct a policy-relevant jurisprudence of rights (Chapter 1). As this case law expands to cover an increasing number of policy domains, and deepens within any specific area of law and policy, the incentives favoring cooperation, relative to resistance, will be strengthened. A majority that fails to respect the court’s case law, when clear and on point, for example, runs a high risk of censure, which will entail costs in time, resources, and reputation. On the other hand, constructive (even critical) engagement will be far more likely to constrain a powerful court than stubborn resistance. PA facilitates dialogue, providing lawmakers with a framework for persuading the court that the statute under review is justified by public reasons. These variables11 combine in ways that generate hypotheses (theory-based expectations) concerning a court’s impact on legislative decision making. One expects a court to exercise more influence when parliament legislates (i) against the background of relevant rules, principles, and guidelines embedded in case law, (ii) in the shadow of future adjudication, and (iii) with little or no prospect of reversing the court’s ruling to come. The probability of an abstract review referral will make engagement with court’s jurisprudence all the more urgent. One expects the impact of the court to be relatively weak in the absence of abstract review, and where parliament can ignore or override important rulings. Finally, an important legislative reform that survives the amendment process intact will impinge more upon rights than one that has been watered down, and thus will be relatively more likely to be litigated. (p.132)

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Constitutional Dialogues Coordinate Construction

For present purposes, coordinate construction refers to a condition in which constitutional jurisprudence and statutory lawmaking develop interdependently.12 Where it pertains, constitutional judges and legislators interact within processes that serve to concretize rights provisions as statutory provisions. The charter of rights, and therefore the proportionality principle, will constrain statutory lawmaking; and legislative activity will organize the progressive development of constitutional law. Where it pertains, members of parliament behave in a judicial mode, debating the constitutionality of proposals. And constitutional courts behave legislatively, amending, vetoing, and even drafting statutory provisions. Understanding how coordinate construction works requires conceptualizing the overall legislative process as including a rights adjudication stage. A litigated statute will generate the context for the court’s lawmaking that, under certain conditions, will require legislative implementation. Keeping in mind the determinants of the court’s legislative impact just discussed, we now turn to the types of practices that provoke and sustain coordinate construction. We begin with the menu of options that is available to judges when they confront tensions between statutory provisions and a qualified right. It is the duty of a trustee court to void, as unconstitutional, statutes that violate a rights provision. But courts that deploy PA—while fulfilling their duties of reason-giving and deliberative engagement—will not do so without providing information on how legislators should have acted in the first place, within the zone of proportionality. Courts have also developed remedial options beyond blunt invalidation of a statute. These involve techniques—which have been adopted by every powerful trustee court in the world—that permit judges to provide guidelines to parliament, monitor the legislative process, and control outcomes prospectively. Most dramatic are instances—today, relatively routine—in which a court declares a statute unconstitutional, while ordering the legislature to amend or replace the offending provision(s) within a fixed time frame, and in accordance with the substantive guidelines laid down in the decision. Scholars label such rulings variously, including “delayed” (or “suspended”) declarations of invalidity (Canada),13 and “deferred decisions” of unconstitutionality (Colombia).14 The German Court developed this type of ruling to (p.133) avoid creating, through simply voiding offending provisions, serious gaps in legal protection and certainty, and to give the parliament the opportunity to correct the statute, albeit within limits established by the Court. It is typically used in situations in which the court recognizes that there are a number of proportional means available to correct a statute, and leaves it to the legislature to choose. A statute judged to be disproportionate can be rendered constitutional, but only if parliament acts to reduce harm to rights holders within the deadline. The Canadian Supreme Court’s ruling in Bedford (2013),15 for example, gave Page 6 of 38

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Constitutional Dialogues Parliament one year to regulate the working conditions of sex workers in ways that would make their profession safer, having found that the prohibition on brothels placed them in far more dangerous settings. These types of decisions place the legislature under direct constitutional surveillance. A court can also (in effect) amend the statute, through the attachment of binding interpretations of disputed provisions. In such decisions, judges decline to declare the provisions unconstitutional but only if they are understood and applied in the legal system in a particular way. These rulings, too, go under various names: “saving constructions,” (United States)16; “binding” or “strict” interpretations (Europe)17; and “conditional rulings of constitutionality” (Colombia).18 They typically take one of two forms. A court may “read in” an interpretation of the provisions under review, after determining that any other reading would create an unacceptable gap in rights protection (e.g., as a response to a statute’s “under-inclusiveness”). In PA terms, the amendment renders the disputed provisions proportionate. A court may also choose to “read out” disproportionate interpretations (e.g., a response to a statute’s “over-inclusiveness”). One may defend these types of decisions as being more respectful of the legislature than an outright ruling of unconstitutionality. Nonetheless, they enable the court to control legislative outcomes, delineate the zone of proportionality, and place the legal system under surveillance with regard to future application. In Vriend v. Alberta (1999), for example, the Canadian Court chose to read into Alberta’s “Individual Rights Protection Act” protection against discrimination on the basis of sexual orientation, although the province had purposefully chosen not to provide such protection. The SCC found that the omission was disproportionate, failing every prong of the proportionality test. On proper purpose, the Court held that: Where, as here, a legislative omission is on its face the very antithesis of the dispositions embodied in the legislation as a whole, the Act itself cannot be said to indicate any discernible objective for the omission that might be described as (p.134) pressing and substantial so as to justify overriding constitutionally protected rights.19 The Court chose not to invalidate: [S]triking down the [Act] would deprive all Albertans of human rights protection and thereby unduly interfere with the scheme enacted by the legislature. It is reasonable to assume that, if the legislature had been faced with the choice of having no human rights statute or having one that offered protection on the ground of sexual orientation, the latter option would have been chosen.

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Constitutional Dialogues In PA terms, amending the statute, through “reading up” its protections, rendered the disputed provisions proportionate. There is broad agreement on the view that the Vriend ruling has had positive, transformative effects on antidiscrimination law in Canada. In 2010, Alberta added protections for sexual orientation in a new Human Rights Act. A court can also amend a statute by “reading out” disproportionate interpretations. In Cannabis (1994),20 the German Federal Constitutional Court (GFCC) considered a challenge to the Intoxicating Substances Act (1981), which inter alia criminalized the cultivation, trade, and possession of marijuana and hashish without a license (strictly reserved to those conducting scientific research). The claimant, a “recreational” user, argued that the law violated Article 2.1 of the Basic Law which, the Court reiterated, expresses a general right to liberty that covers virtually “every form of human activity” that one might choose to engage in. The government defended the penalties under review (including imprisonment of up to five years) on the grounds that cannabis was dangerous to health. After detailed proportionality analysis, the Court declined to uphold these provisions as written. The ruling turned on a scientific question: how dangerous are cannabis products? The Court held that Parliament’s initial understanding, of 1981, of the risks of cannabis was now obsolete, subsequent research having found the drug to be far less dangerous than previously supposed. The Court then read into the statute a limitation on its enforcement, prohibiting the prosecution of “occasional” users who posed no “danger to third parties.” The ruling also suggested several ways of securing the law’s proportionality going forward. The State Prosecution Service could issue new rules in order to ensure “substantively uniform” practices when it came to prosecution, for instance, or parliament could revise the law. Last, the Court placed lawmakers under ongoing supervision, stipulating that “the legislature has a duty to monitor … the effects of the [law] currently in force,” in light of the evolving state of research on the question, and “having due regard to experiences in other countries.” (p.135) Parliament would ultimately amend the law to create an exception for “recreational” use, and decriminalization of cannabis use is today squarely on the legislative agenda. Being placed under constitutional surveillance—and the continuous threat of invalidation—can alter the legislative process in fundamental ways.21 Generally, parliamentary majorities seek to maximize their own policy discretion and objectives, which minority parties seek to oppose. Under certain conditions, injecting rights considerations into the process will weaken the majority and strengthen the opposition. We know a great deal about the politics of “anticipatory reactions,” which are rooted in logics of deterrence.22 It can be difficult, even impossible, for legislators to correctly predict the future position of the court in the absence of a relevant case law, that is, when the jurisprudential slate is relatively clean. But in areas governed by an existing case law, the opposition will have a powerful interest in invoking it, in arguments Page 8 of 38

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Constitutional Dialogues that the majority will have to take seriously if it wishes to avoid censure. An opposition that can credibly threaten an abstract review referral at the end of the process will be in a particularly strong position to “judicialize” legislative debates—that is, to place the legislative process in the shadow of judicial review. Proportionality gives a discursive structure to the process. The majority will be anxious to build a record of the proportionality of its legislation, which it can expect the court to review. This may entail compromises that downgrade its original ambitions in order to give more protection to affected rights holders. In virtually all systems that are managed by powerful trustee courts, a host of legislative procedures serves to formalize deliberations on the constitutionality of bills under discussion. Legal experts review draft legislation for rights conformity in the cabinet, before bills are sent to parliament; and legislative committees have evolved competences to do the same. Germany is one country where constitutional deliberations have become an established component of the legislative process. Germany’s Parliament regularly invites former GFCC justices to parliamentary hearings on proposed legislation, to offer their views on constitutional questions.23 In proportionality systems, parliaments that take the constitution seriously inevitably engage in proportionality decision making, which may include formal, quasi-judicial exercises in balancing. The most widely known examples of such balancing concern abortion law. Across Europe and Latin and North America, legislatures have carefully balanced the right of women to control their reproductive lives against the interests of fetal life, knowing full well that the constitutional court will have the “final word.” In such cases, the parliament functions as a balancing organ of first instance, and the court as an appellate jurisdiction. (p.136) One also finds dialogic procedures in systems in which parliamentary oppositions are not empowered to initiate abstract review. Canadian and New Zealand cabinets are required to include a statement, produced within the Ministry of Justice, on a legislative bill’s compatibility with rights upon its introduction in Parliament.24 In the UK, the Legislative Committee of the cabinet manages a similar process. The absence of abstract review, however, reduces the intensity of constitutional deliberation within parliament. In the UK and New Zealand, a combination of factors conspires to render statutory bills of rights relatively ineffective: there is no abstract review; an apex court may only declare the incompatibility of a provision with rights, but may not annul it; and the government and its majority can choose to ignore such a declaration, leaving the statute in force. Of course, the robustness of constitutional deliberation depends not only on formal factors, such as the existence of abstract review, but on legislative politics. For instance, South Africa’s Constitutional Court has the power of abstract review, but observers have faulted the Parliament, long dominated by the African National Congress party, for acting as a rubber stamp for the Page 9 of 38

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Constitutional Dialogues government, rather than a deliberative body in its own right.25 To be sure, the idea of a dialogue between court and legislature is discussed in South Africa, including by justices on the Constitutional Court.26 But the character of the legislative process can affect the tenor of the court-legislature interactions. The Constitutional Court of South Africa has used its rulings to push the legislature to be more deliberative and participatory, striking down statutes on the ground that Parliament did not do enough to facilitate a deliberative lawmaking process that engaged appropriately with the public.27 Some rulings invalidating statutory provisions generate a subsequent— “corrective revision”—stage: the reconsideration of a censured text in conformity with the court’s lawmaking.28 Once a court has instructed the legislator on how to correct the statute, the government and its majority are faced with a choice. Typically, they have three options (short of seeking to override the court by revising the constitution). They can secure constitutionality by complying with the court’s ruling, thereby increasing rights protection. In systems in which a trustee court is connected to opposition parties through abstract review, this is nearly always the option selected. Second, they can let the reform die (unless the court requires a specific action). This is rarely a viable option, as it is usually better for the government and its majority to get part of what they want, rather than nothing. Cooperation is all the more likely in situations in which the Court leaves them with a range of choices, within a zone of proportionality, on implementation. Third, the government and its (p.137) majority could seek to circumvent the court’s ruling, by creatively reformulating the contested provisions. In such cases, they would be playing “chicken” with the court, all but daring it to annul the bill a second time; and they risk exposing themselves to charges that they are hostile to rights protection. Although they often interpret a court’s ruling narrowly, in order to sacrifice their goals as little as possible, they rarely blatantly ignore the court’s instructions when on point. Corrective revision processes serve to concretize rights jurisprudence as statutory law. In some instances, the court all but requires the “constitutionalization” of the statute, effectively locking it in as a direct expression of the right in question (Chapter 1). There are literally hundreds of examples of fully judicialized corrective revision processes determining legislative outcomes, several examples of which are discussed below. Trusteeship and the Zone of Proportionality

Some readers may question whether the constitutional politics we are describing are properly called “dialogic.” As a formal matter, a trustee court occupies a privileged position as a constitutional law-maker, while the government and its majority are more often law-takers. The answer will partly depend upon how one conceptualizes “dialogue,” and partly on one’s normative commitments. While a full discussion of the underlying issues is beyond the scope of this book, we have already sketched our own response, here and in previous chapters. Modern constitutional law prioritizes right protection by granting extensive political Page 10 of 38

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Constitutional Dialogues property rights to trustee courts, which are under a duty to enhance the effectiveness of constitutional justice on an ongoing basis (Chapter 1). In these systems, the structural supremacy of the court is a brute fact of governance. Moreover, when a court commits to enforcing the proportionality principle—as a criterion of the legality of statutory lawmaking—it places legislators under an obligation to justify the proportionality of every statute limiting the scope of a qualified right. Failure to provide such reasons renders legislative authority unaccountable and, thus, illegitimate (Chapter 2).29 Rulings taken pursuant to PA will organize whatever space for dialogue there will be, going forward. We understand the concept of “constitutional dialogues” broadly, as those interactions between a court and other institutions that determine how the charter of rights is implemented in practice. The Court, after all, may not do so on its own, and its rulings, too, leave gaps that only others can fill. Statutory lawmaking—and the reasons governments and parliaments invoke to justify it—sets the context for PA, a first phase of dialogue insofar (p.138) as lawmakers have taken into account rights in their decision making. The ruling that follows will initiate a second phase, insofar as the court leaves room for legislators to make meaningful choices in pursuit of their goals, within the zone of proportionality. These choices may produce subsequent rounds of interaction, not least, to test the legislature’s compliance with the holdings in question. Of course, conceptualizing “constitutional dialogues” in this way will not satisfy those who reject, on normative grounds, the very idea of judicial supremacy, or of the appropriateness of PA as a preferred standard of review. Not surprisingly, the most critical scholarly discussions of the dialogue metaphor take place in the family of systems in which the parliament may maintain the enforceability of a statute after an apex court has found it to have violated a charter right (Canada, the UK, and New Zealand).30 In any event, a basic function of a trustee court is to demarcate the zone of proportionality, which defines the constitutional space in which a parliament is free to legislate. As Barak puts it: “The zone of proportionality is the legislator’s kingdom; keeping the boundaries intact is the judge’s kingdom.”31 This formulation may lead to a misunderstanding, given that a common by-product of delineating the zone is judge-written legislation.32 Three types of holdings directly implicate the court in ongoing legislative processes. First, the court may tell parliament what it is forbidden to do. Such rulings extinguish dialogue on those points of law. Second, it can indicate what the legislators can do with their lawmaking powers, within the zone of proportionality. Third, it can tell them what they must do, under guidelines elaborated by the court. Each of these holdings place the parliament’s response under surveillance. A single ruling may combine all three types.

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Constitutional Dialogues Each stage of PA can generate such guidelines: (i) legitimate (or “proper”) purpose; (ii) suitability (the rational nexus between means and ends); (iii) necessity (operationalized by a least restrictive means (LRM) test); and (iv) balancing. The third and fourth stages of PA involve far more intrusive inquiry into the nuts and bolts of the legislative decisions under review (Chapter 2). A court may hold that a legislative purpose is per se unlawful, in that it conflicts with the democratic values of a particular constitutional order. An improper purpose can never justify a limitation on a right.33 Courts rarely give the legitimate purpose subtest much bite,34 partly for prudential reasons (Chapter 2). Invalidating a statute on such grounds will often close down (p.139) dialogue, while stigmatizing the ruling party. There are, however, examples of dialogic holdings pursuant to a finding of improper purpose. In 1999, the Constitutional Court of South Africa ruled that there existed “no justification” for the exclusion of spouses in “permanent same sex life partnerships” from benefits offered to heterosexual couples in the context of immigration.35 In its consideration of remedies, the court carefully parsed the relative advantages and costs of “reading-in” protection for gay and lesbian couples, or invalidating the offending provision altogether, citing to Canadian and German jurisprudence.36 In the end, it chose the first option, while insisting that “the legislature is empowered to amend or fine-tune” its order, so long as it did so in a proportionate manner while respecting principles issued as guidelines for any subsequent legislative and administrative action.37 In 2017, the German Court held that no “legitimate aim” was served by the failure of the civil code to recognize a transsexual’s right (under Art. 2.2) to register under a third gender —neither male nor female—leading administrative and judicial officials to reject her request to register as “inter” or “diverse.” The Court ordered Parliament to amend the code by the end of 2018, suggesting that it could make available a “third” option, or abolish gender registration altogether.38 The suitability stage of PA assesses the fit between means and ends. A law is suitable if the means chosen, at least on paper, are capable of achieving the law’s objectives. It, too, is a blunt, stigmatizing instrument for voiding a statute. Nonetheless, in Sauvé No. 2 (2002), the Canadian Court invalidated a federal provision denying the right to vote to incarcerated prisoners “serving a sentence of two years or more,” as disproportionate with regard to each subtest comprising PA. The government had submitted two justifications for the prohibition: (i) “to enhance civic responsibility and respect for the rule of law,” and (ii) to provide “additional” and “appropriate punishment.” A narrow majority of the SCC curtly dismissed these offerings, deploying suitability analysis in ways that included proper purpose considerations:39 The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social Page 12 of 38

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Constitutional Dialogues responsibility. The government’s novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation. … (p.140) With respect to the second objective … the government [has] offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment … As to a legitimate penal purpose, neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals.40 Those who reject the “constitutional dialogue” metaphor point to this ruling to support their position. Given that the SCC possesses the final word on the constitutionality of a statute,41 dialogue “dies” when the Court holds its ground in “second look” (corrective revision) cases.42 A decade earlier, in Sauvé No. 1 (1993),43 the SCC had a “first look,” declaring a blanket denial of voting rights to incarcerated prisoners unconstitutional. The parliamentary response was to disenfranchise only those convicted of more serious crimes, as measured by the “two years or more” cutoff point. But the Court did not back down, and prisoners now vote at almost the same rate as the general population. A landmark ruling of comparative constitutional law, Sauvé No. 2 has directly influenced the reasoning of other major courts, including the Constitutional Court of South Africa (CCSA)44 and the European Court of Human Rights.45 The necessity subtest is crucial to the delineation of the zone of proportionality: it forbids legislators from infringing more upon rights than is necessary to achieve their declared purposes. Falling outside of the zone are statutes that are overbroad, for example, or those that are inefficient, given that a rights holder could be made better off, under a less restrictive alternative, without reducing the desired social benefits of the law under review.46 A court that robustly enforces the necessity prong places the government and majority in the shadow of the law; the typical result is that legislators strive to demonstrate that they have taken care—during the lawmaking process—to meet the demands of the LRM test. The Supreme Court of Israel treats necessity reasoning as an obligatory element of statutory lawmaking: “The legislator … should begin with the lowest ‘step’ possible, and then proceed slowly upwards until reaching that point where the proper purpose is achieved without a limitation greater than is required of the human right in question.”47 In practice, courts skilled in PA also operate under a crucial constraint. They (p.141) do not declare statutory provisions unconstitutional without first identifying one or more available alternatives that legislators could have chosen, and which would fall within the

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Constitutional Dialogues zone of proportionality. Such rulings provoke, and give guidance to, corrective revision processes. The long-running struggle over restrictions on the right to practice massage in South Korea offers an example. Since 1913, only blind persons have been licensed to perform massage in South Korea. Sighted masseurs brought a constitutional challenge to the restriction, which was contained in an administrative regulation, rather than a statute. That challenge failed, in 2003, but three years later, another challenge was brought. This time the Constitutional Court used PA, and this time, it struck down the measure. The Court found that the measure exceeded the scope of delegated powers, while violating the right to choose one’s occupation, since less restrictive means to support the blind were available.48 The National Assembly responded by passing a statute that, while structured differently from the regulation, had the practical effect of limiting the practice of massage to the blind. The legislation was challenged, and the Court ruled on the challenge in 2008. Faced now with a statute, the Constitutional Court gave some weight to the considered judgment of the legislature. The Court recognized the clash between the constitutional responsibility to protect the disabled and the right to occupation. On a 6-3 vote, the Court concluded that, given the limited welfare provision for the blind, the few other professional opportunities open to them, and the persistence of discrimination against the blind, the measure was necessary.49 The Court has since rejected two more challenges to the restriction, most recently in 2018. The saga of restrictions on the practice of massage in South Korea illustrates two points that resonate more broadly. First, the difference in outcomes between the 2003 and 2006 rulings shows how adopting proportionality upgrades the intensity of review relative to most pre-existing standards. Second, comparing the outcomes in 2006 and 2008 suggests that decisions produced through deliberative policy-making processes can offer more scope for dialogic review. The Court’s 2008 ruling did not defer to the legislative choice, but it credited the justifications offered in its defense. The balancing phase of PA fully exposes courts as constitutional lawmakers (Chapter 2), in that it routinely produces authoritative interpretations of rights that must be incorporated into legislation (Chapter 1). This result inheres in balancing itself; it is, inescapably, “a result-oriented” inquiry “of a value-laden nature.”50 The function of balancing in modern constitutional law is to maintain harmony between the (i) charter of rights, which takes primacy over legislation, and (ii) statutes that proportionately limit the scope of rights for a sufficiently important public purpose.51 But judges cannot perform this (p.142) function without making statutory law, or organizing how parliament will do so. Legislators who wish to secure the proportionality of an important statute can do no better than to build a transparent record of their own balancing efforts within the lawmaking process. Doing so will produce the type of dialogic materials that are most likely to be taken seriously by the court, if the statute is Page 14 of 38

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Constitutional Dialogues to be litigated. Put differently, legislators have every interest in helping to generate, in advance of litigation, the menu of options that will available to the court. In trusteeship situations, the court will have the last word. But most powerful trustee courts take great pains to assess how lawmakers have balanced when they do so in a serious manner. Arguably, the most important examples concern legislative efforts to decriminalize abortion. In 1975, the GFCC struck down a German reform of the criminal code insofar as it decriminalized first trimester abortions, ruling that the law was irreconcilable with the state’s constitutional duty to protect life,52 while permitting abortions to go unpunished for various reasons, including a woman’s health and social hardship. Following German reunification, the Parliament passed a new and complex statute that sought to steer pregnant women towards carrying to term, through mandatory counseling and family support programs, while decriminalizing abortion in the first trimester. In response, the GFCC carefully sifted through the features of the statute, finding some acceptable and others not.53 The Court stressed the importance of protecting unborn life, but acknowledged that other constitutional values, and in particular the life and liberty interests of the pregnant woman, were implicated. The concern in this context was not that the measures chosen by the legislature were excessive—the standard proportionality framing—but that they did not provide the minimum protection the constitution requires of the state. The Court recognized that there may be circumstances under which it is permissible, and even required, to permit access to abortion, its position being that states may not “unduly burden” access to abortion under certain circumstances (a test that takes place in the balancing stage of PA). But the criminal law must nonetheless express its disapproval. Thus, the Court again signed off on the legislature’s decision not to impose criminal penalties under certain circumstances, but held fast to its view that the state is under a positive duty to protect fetal life.54 American judges established a form of pre-enforcement, abstract review when they began to accept “facial challenges” to legislation.55 For example, since Roe v. Wade (1973), virtually every important state or federal statute seeking to limit access to abortion has been subject to such challenges. In the (p.143) typical case, medical associations, providers of abortion services, and other interest groups join together to ask a court to block the enforcement of the restrictive statute, immediately after its enactment, pending a final ruling on its constitutionality. These take the form of a request for a preliminary injunction, usually coupled with a demand for a declaratory judgment of unconstitutionality. After Planned Parenthood v. Casey (1992), efforts by state legislatures to restrict abortion rights have been subject to a stand-alone “undue burden” balancing test (Chapter 4). As in Germany, many European and Latin American countries effectively bar abortion restrictions deemed to impose an undue burden on the woman—an approach that relies entirely on PA—though what counts as an undue burden differs substantially.56 Thus, in the United States, a form of Page 15 of 38

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Constitutional Dialogues abstract review not only exists, it organizes the constitutional politics of abortion.

II The Administration While the judicial review of legislation may be the highest-profile application of proportionality in many legal systems, it is not the only one. In many systems, proportionality’s impact extends to the administrative and private law, which have been constitutionalized to different degrees. These broader dialogues, encompassing a wider set of institutions, drive proportionality more deeply into the fabric of the law. The more proportionality penetrates into administrative and private law, for example, the more it will take on the features of a general principle of legality. In some systems, rights and PA have begun to colonize the entire legal system. In others, their role in constitutionalizing the work of administrative and private law courts remains fragmentary and contested. Starting Points

For all their differences, rights review and administrative law share a purpose in common: to protect individuals against the power of the state. Administrative law protects individuals, typically, by confining the exercise of executive power to spaces that the constitution or legislation defines or permits. Administrative law makes the validity of administrative action depend on adherence to legal norms, and these norms can be both procedural (e.g., the agency must conduct a hearing on the record before making a decision), and (p.144) substantive (e.g., regulations cannot be arbitrary and capricious). And as we have already seen, proportionality has played an important role historically in the early development of administrative courts, as a general principle constraining the discretionary powers of administrative officials, prior to the adoption of justiciable charters of rights (Chapter 3). Once constitutionalized, proportionality is typically applied as a general principle of legality that undergirds both constitutional rights review and administrative legality. Not surprisingly, where administrative actions are evaluated against a proportionality standard, the institutions that populate the administrative law world—which, depending on the legal system, can include agencies, ministries, authorities, reviewing courts, specialized administrative tribunals, and others—are brought into dialogic exchanges. As a result, in many legal systems, the lines separating constitutional and administrative review of state acts can blur, which is a consequence of the hierarchical superiority of the charter of rights over all statutory and administrative acts.57 But national experiences in this area are too diverse and complex to permit easy generalizations.58 The list of factors that shape how constitutional and administrative controls on state power interact in a given legal system is diverse and long. While we cannot offer a fully formed theory, we can highlight some of the most important factors.

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Constitutional Dialogues The governing constitutional and statutory provisions are, of course, crucial starting points. Proportionality may be written into the law in the plainest possible way. For instance, Article 7 of Taiwan’s 1999 Administrative Procedure Act explicitly requires that administrative acts satisfy suitability, least restrictive means, and the balancing subtests. Statutory commands may generate downstream legal outcomes (such as the application of a proportionality test), but also organize more open-ended processes of legal development. In Taiwan as elsewhere, the inclusion of a proportionality requirement in a general administrative law statute built on innovations by courts; that is, judicial lawmaking catalyzed parliamentary lawmaking, which then pushed judges further down the same path. To understand the role PA plays in administration, we must look beyond the text of the law. It matters how the powers and jurisdictions of the institutions involved in the administrative process are defined. Administrative bodies in different systems vary greatly in their composition and powers.59 Of particular importance are the mechanisms for reviewing administrative decisions. Do specialized administrative courts govern their own delimited “administrative space,” or are administrative decisions subject to review in the ordinary courts (p.145) and, ultimately, a general jurisdiction supreme court? If there are specialized administrative courts, to what extent is administrative law treated as separate from the constitutional law? Does a specialized constitutional court, for example, have the competence to review the supreme administrative court’s rulings or only the legislation authorizing administrative decisions? Not all constitutional courts can review administrative decisions. Institutional configurations, and their complexity, matter a great deal. Given the path dependence of legal institutions,60 a legal system’s historical development is often crucial. Commonwealth systems historically emphasized common law rights as the guarantor of liberty, and English lawyers were famously skeptical of administrative law, which Dicey described as resting on “ideas foreign to the fundamental assumptions of our English common law, and especially to what we have termed the rule of law.”61 While many English scholars studiously refused to recognize administrative law in the nineteenth century, the UK saw an explosion of officials exercising delegated powers in the twentieth. The (perhaps ironic) result was that the English had weaker legal protections against administrative arbitrariness than continental systems with better developed systems of administrative review. Even today, the famously deferential Wednesbury unreasonableness standard continues to be a point of reference in many Commonwealth legal systems, albeit one deeply eroded by proportionality (Chapter 3). A different history with administrative review in continental Europe facilitated the acceptance of proportionality.62

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Constitutional Dialogues Compartmentalizing Proportionality

Proportionality has become a global phenomenon through diffusion across legal systems, and across domains of law within legal systems. As discussed in Chapter 3, proportionality entered constitutional law from administrative law in a number of legal systems, including Germany, France, Israel, South Korea, and Taiwan. In some legal systems, proportionality remains compartmentalized in either administrative law or constitutional law, for system-specific reasons. China is an example. With an authoritarian regime showing (at best) an uneven commitment to rule of law values, China differs from most of the states discussed in this book. Meaningful judicial protection of constitutional rights is anathema to formal dogma that undergirds official state theory.63 Indeed, Chinese courts are not allowed to cite the Constitution (p.146) as a source of law, because the Constitution and Law Committee of the National People’s Congress (NPC)—a mouthpiece for the party and government—is the final authority on constitutional meaning. Even effective administrative review is difficult to achieve, since the judges enjoy, at best, very limited independence from the party. Yet even here, in this most unpromising of legal landscapes, proportionality has begun to make inroads. To be clear, the official line in China is that judicially administered PA has no place in Chinese law. But Chinese courts have begun smuggling proportionality into administrative review. The most significant case in this connection is Huifeng Industry Development Co., Ltd. v. Harbin City Planning Bureau (1999).64 When a construction project in the city of Harbin obscured the view of a historic building, the planning bureau imposed a substantial fine and also ordered that several stories of the new buildings be demolished. The developer appealed the penalty, and the court of first instance held it to be excessive. The Supreme People’s Court affirmed the decision, deploying PA in all but name. The Court held that (i) the planning authority’s action should have reflected the extent of damage caused by the construction, (ii) it failed to consider the interests and rights of the plaintiff as well as the purposes of the land use regulation, and (iii) it should have chosen an available less intrusive option.65 Although the decision did not use the word “proportionality,” Chinese scholars have tagged it as a decision generated by PA.66 But as Huang and Law note, the most significant source of proportionality in China is the State Council, not the courts. The State Council, chaired by the Premier, is the highest organ of administration in China.67 In 2004, it issued a guidance document that identified the cornerstones of proportionality as fundamental to proper administration.68 When authorities exercise discretion, “the measures and means adopted shall be necessary and appropriate; if there are a variety of ways that the administrative organ could achieve administrative purposes, the method that harms the rights of the parties shall be avoided.” Although the State Council’s guidance is not binding, as Huang and Law note, Page 18 of 38

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Constitutional Dialogues subsidiary government bodies began issuing laws and regulations based on it, in order to constrain the use of administrative discretion.69 Proportionality’s place in Chinese law remains tenuous. But China’s experience suggests its capacity to regularize the use of state power, even in the absence of justiciable constitutional rights and independent courts. In Canada, as in many Commonwealth countries, courts and scholars have long debated how constitutional rights, administrative law, and proportionality (p. 147) fit together.70 In the Canadian context, it is useful to sort cases into three categories: (i) Charter rights cases that do not involve administrative law, (ii) Charter rights cases that do involve administrative law, and (iii) administrative law cases that do not implicate Charter values. Cases in the first category are governed by Oakes and its progeny, that is, full-fledged PA (Chapter 3). Should cases in the second category receive a less intrusive form of review, one tailored to the niceties of Canadian administrative law? If so, how would this standard of review differ from that given to cases sorted into the third category? Put starkly, should the choice be between PA and the traditional standard akin to Wednesbury unreasonableness? The Supreme Court of Canada has charted a roundabout course through this terrain over the years.71 In Slaight (1989), it suggested that the relevant line divided cases involving Charter rights claims from those that did not: a Charter rights claim should receive full proportionality review, even if the claimant challenged an act arising from the administrative exercise of statutory discretion.72 The Court suggested that the Court need not bother performing the reasonableness review otherwise applicable in administrative law cases, given that a test for unreasonableness “rests to a large extent on unarticulated and undeveloped values and lacks the same degree of structure and sophistication of analysis.” However, in Baker (1999), which concerned a discretionary denial of relief from deportation, the Court suggested that, even in administrative cases not implicating a Charter right, more stringent review than Wednesbury could be accorded, depending on the importance of the private interest at stake.73 In the Court’s more recent jurisprudence, it has arguably built a bridge between the (more relaxed) administrative law approach and PA, taking the position in Doré (2012) that reasonableness review, rather than Oakes, is to be performed when at least some kinds of discretionary administrative acts are the source of alleged Charter rights violations.74 But crucially, the Court gave reasonableness review an upgrade, noting in Doré that although “judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes [PA] framework.”75 In Loyola High School (2015) the Court explained that the reasonableness of the discretionary act “depend[ed] on whether it reflected a proportionate balance between the statutory mandate” of the administrative (p.148) authority, and the Charter right affected by its choice (in this case, religious freedom).76 The Page 19 of 38

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Constitutional Dialogues update allows the Court to have it both ways. It may mollify critics in administrative law who resisted the open constitutionalization of their domain in cases such as Slaight while, as a practical matter, introducing a more intensive form of review, as appropriate. On the other hand, the difference in treatment may lead claimants to challenge the constitutionality of the statute that supports the administrative measure under review, shifting the analysis to the Oakes framework. Competition, Cooperation, Convergence

Many legal systems recognize forms of proportionality in both constitutional law and administrative law. In some, the line between the two blurs substantially, without disappearing entirely. The existence of multiple proportionality standards in a legal system can lead to complex, often fraught, interactions among institutions. The dynamic can be cooperative or competitive, but in either case, the result has been to entrench proportionality further. In Germany, proportionality functions as a general principle of legality that spans administrative law and constitutional law. PA retains its moorings in administrative law, with proportionality clauses to be found in the codes governing police law and other administrative law fields at both the federal and state levels. But the proportionality requirements within administrative law today are understood as particular expressions of a more general constitutional obligation to act proportionately, as the GFCC has long stressed. Moreover, because the GFCC has given Basic Law Article 2.1’s right to the free development of personality an extraordinarily broad scope, practically any act of the state that infringes on individual liberty implicates constitutional rights, the pleading of which can trigger PA. Still, in practice, there is a division of labor between the GFCC and the administrative courts when it comes to proportionality review. In most administrative contexts, an administrative authority’s choice of means is governed most directly by statutory proportionality requirements.77 Most choiceof-means challenges are handled entirely within the administrative court system. Administrative courts apply a fairly intense form of proportionality, with the emphasis on the necessity test. In contrast to the GFCC’s review of legislation, little or no deference is generally given to administrative acts.78 Further review by the GFCC of an agency’s choice of means is rare. At the same time, the GFCC’s constitutionalization of the proportionality principle has widened the scope of review that administrative courts perform. (p.149) While agencies’ choice of means is generally subject to a statutory proportionality requirement, other agency decisions—including whether or not to take action, and against whom—are not. Such choices are, however, governed by the constitutional proportionality principle, which is an “overarching guide for all state action.”79 As a result, they are subject to proportionality review by the Page 20 of 38

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Constitutional Dialogues administrative courts, and potentially further review by the GFCC, not least by way of the individual constitutional complaint (Chapter 1). Proportionality also has been developed into an interpretive tool that administrative courts use to construe the statutes under which authorities operate.80 With administrative officials, administrative courts, and the constitutional court all having a stake in the proportionality of administrative action, legal results will often result from complex interactions that would be difficult or impossible to predict in advance. The controversy over “gebundene Entscheidungen”—“bound decisions”—offers an example. Bound decisions refer to situations where administrative authorities have no discretion: once the stipulated conditions are met, the authority is obligated to perform a defined action. While reviewing courts can review the statute under which the authority operates for proportionality, the traditional understanding was that there could be no scope for review of its exercise of discretion, because it had none.81 Yet, administrative judges have at times tested the proportionality of such decisions, with the blessing of the GFCC, which rooted the requirement in both the Basic Law and the case law of the European Court of Human Rights.82 In a series of cases involving the deportation of foreign nationals, ostensibly governed by a statute that contemplates automatic expulsion under certain circumstances, the courts ruled that such expulsions were only permissible if they survived proportional review.83 In response, the federal legislature revised German immigration law to expressly provide for a balancing of interests in expulsion decisions,84 an example of a complex dialogue between the legislature, the administrative courts, the GFCC, and the European Court of Human Rights. More generally, the use of PA in bound decisions illustrates two broader dynamics related to how such interactions can drive proportionality deeper into the fabric of law, while expanding the decision-making authority (and thus their policy-making relevance) of administrative and judicial officials. The administrative courts’ insistence that expulsions be proportional created space for immigration authorities to exercise discretion where formerly they had none, while bolstering their own judicial review powers. (p.150) The dynamics of proportionality-based dialogue can also be conflictual. A crucial threshold question is jurisdictional: can constitutional courts overturn administrative court rulings on constitutional grounds? In a move likened to Marbury, the Taiwan Constitutional Court asserted the power to overturn rulings of the Supreme Administrative Court, setting the stage for a long series of subsequent interactions.85 In South Korea, proportionality has played into longrunning conflicts between the Supreme Court and the Constitutional Court.86 In conflicts between constitutional and supreme courts, the first court established enjoys certain first-mover advantages,87 and in South Korea, the KSC was established four decades before the KCC. The KSC was also the first to apply PA, performing a basic form of proportionality on administrative measures under the Page 21 of 38

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Constitutional Dialogues Police Duties Act of 1953, which required exercises of police power to be proportional. But once established in 1987, the KCC wasted little time in asserting its authority, together with a more robust form of proportionality review. The KCC’s proportionality test follows the international standard, with four subtests.88 And while the Supreme Court and Constitutional Court are not meant to have overlapping jurisdiction, and no appeals are possible from one to the other, the KCC has found ways to poach on the KSC’s jurisdiction, using proportionality. As Huang and Law have detailed, the Constitutional Court conferred upon itself the authority to review constitutional complaints arising from administrative actions, forcing its own approach to PA into administrative law.89 The KCC’s moves set up a feedback loop that favors the expansion of its own, more robust proportionality review in the administrative context. Unless the Supreme Court upgrades its own review (which it has shown no signs of doing to date), parties dissatisfied with the Supreme Court’s more limited review in administrative matters have an incentive to bring constitutional claims to the Constitutional Court. Proportionality review in administrative law routinely generates policy dialogues, but often of a different nature than those between a court and legislature. In systems where review is available in both administrative and constitutional courts, the key questions concern when and how proportionality review should be performed. The GFCC, for instance, has given proportionality guidance to the Federal Administrative Court.90 Administrative officials are on the receiving end of judicial communications about the proportionality of their choices. How much courts take administrators’ own views about proportionality into account depends a great deal on the specifics of national procedures. The bulk of administrative review in many systems concerns executive actions that are not preceded by an elaborate deliberative (p.151) process. In such cases, dialogues are rather one-sided, with the constitutional court (or supreme administrative court) doing more talking than listening. While the GFCC may grant some de facto deference to the Parliament at certain stages of the analysis, no such deference is given in administrative review.91 In the United States, agencies’ policy choices are subject to so-called “hard look” review, in which courts assess whether agencies have really taken a hard look at the issues before them.92 When an agency action is challenged as going too far, hard look review can resemble proportionality.93 Regulations in the United States often embody major policy choices, and the notice-and-comment process for producing them generates an extensive record of the agency’s engagement with public comments and its own deliberations. Hard look review of regulations has a dialogic character, in which courts closely review the justifications that agencies publish when they release new regulations. Although the statement of basis and purpose an agency releases with a regulation is available for public consumption, it is largely written for the benefit of future review by the courts.

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Constitutional Dialogues III The Judiciary and The Private Law Classic liberal constitutional theory treats constitutional rights as shields that individuals can use to protect themselves against state action. In modern constitutional systems, rights also impinge upon the legal relations among private parties, at least some of the time. This impact is called “horizontal” effect, to distinguish it from the “vertical” effect rights exert within the citizenstate relationship.94 When rights are given horizontal effect by courts, they open an interface between constitutional law and the private law. Some form of proportionality often plays an important role in mediating the communication across these domains. Constitutionalizing the Private Law

There are a number of reasons why courts apply constitutional rights to limit what private parties can do under the law.95 Private conduct can undermine important interests safeguarded by rights, often as deeply as state action can. (p.152) When these interests are not adequately protected by ordinary law, courts can face powerful normative demands from litigants to seek protection in the constitution. A constitutional court can extend rights protection to the private law (family law, the law of contracts and torts, etc.), effectively expanding its portfolio; but it cannot do so without disturbing the private law’s existing foundations. The dividing line between private conduct and state action is famously difficult (or impossible) to draw, not least because the state creates and maintains the rules of private law. The state is present even in the paradigmatic private law principle that contractual promises must be kept: it is the state’s commitment to party autonomy that makes agreements between private parties enforceable in the courts, and courts are organs of the state. The norms of private law—what conduct is to be considered tortious, when contracts must be enforced, how property owners can dispose of their property—reflect social choices made either by legislatures (in private law codes) or judges (through the development of the common law). The problem of managing the horizontal effect of rights is a difficult one for courts. On the one hand, few courts will want to take the position that constitutional rights can never be relevant to disputes arising under private law. On the other hand, few will wish to take the position on the other extreme: that constitutional rights directly apply between private parties across the board, exactly as they apply against state actors. A moment’s contemplation shows why this position is unworkable. It would hardly serve the freedom of expression, for instance, if the organizers of a political rally cannot discriminate among the speakers they invite to the podium on the basis of viewpoint. Courts, then, are left with the challenge of developing doctrine that steers between the extremes, regulating when and how rights apply to private party disputes.

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Constitutional Dialogues The approaches that courts take are as varied as the legal systems of which they are a part. A distinction is often drawn between direct and indirect horizontal effect. If constitutional rights have direct horizontal effect, private parties are themselves bound by them, so that for instance, an employer can violate an employee’s constitutional right to free expression if she fires him on account of his stated political views. When rights have indirect horizontal effect, it is the state that the right binds, but the state may be obligated to regulate the behavior of private parties in order to effectuate the right: so a constitutional equality right might require the state to proscribe racial discrimination in private housing markets. But beyond the distinction between direct and indirect effect,96 important questions remain about when and how constitutional rights apply to private law. Many factors may be relevant, including: whether the charter contains positive rights; if private law rules (p.153) are statutory or found in a judge-made common law; whether constitutional review is concentrated in a single court or diffused to all courts; and how much influence a specialized constitutional court has accrued over the ordinary (private law) courts as a system of justice has developed, or how much a supreme court is willing to force its will, and the charter, on the judges of the private law. Most approaches to the horizontal effects of rights involve some form of balancing. In the European Union, a host of economic rights—most prominently associated with equal pay and non-discrimination—are directly effective: that is, individuals may plead them, and judges may enforce them, directly against employers. Also, the Court of Justice of the European Union (CJEU) insists that national judges use PA in cases where formally neutral measures allegedly have discriminatory effects in practice (indirect discrimination, in EU parlance).97 When rights have indirect horizontal effect, judges are required to take the right into consideration when they resolve disputes in which the right is implicated, again, typically through proportionality balancing. It makes sense that they would, given the constitution’s higher law status and the private law’s claims to autonomy. If neither the constitution is to sweep private law from the field, nor the private law to repulse every constitutional claim, a balance must be struck. Where rights have horizontal effect, collisions between rights will regularly arise: libel claims, for instance, will routinely pit one person’s expressive freedom against another’s right to privacy or personal honor. When two qualified rights (being of equal constitutional stature) collide, proportionality balancing is the obvious means for resolving the matter. Balancing helps explain a pattern that emerges from the welter of different horizontal effect doctrines: systems that embrace proportionality develop doctrines of horizontal effect, and vice-versa. While striking, the overlap is not surprising. PA and robust horizontal effect doctrines presuppose a common orientation towards constitutional rights, as (foundational) values to be optimized on a case-by-case basis, rather than rigid entitlements to be applied in a binary fashion. Courts that routinely engage in PA are practiced at asking Page 24 of 38

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Constitutional Dialogues whether measures infringing on constitutional rights go too far; and when rights apply horizontally, courts must ask a similar question: whether private law norms interfere too much with constitutional norms. Proportionality courts are prepared to engage in balancing, and balancing of one sort or another is a cornerstone of horizontal rights doctrine, as noted above. Proportionality draws courts deep into the home territory of other institutions—the legislature and executive—and requires them to cultivate a sensitivity to inter-branch dynamics, hence dialogic engagement. The horizontal application (p.154) of rights makes the same demands with respect to the institutions and actors that develop the private law: legislatures, courts, and private parties. Given the affinity between PA and horizontal effect, it seems fitting that the German Federal Constitutional Court handed down its most famous decisions on proportionality and horizontal effect within a single year—as did the Supreme Court of Canada, a generation later.98 It also makes sense that the U.S. Supreme Court, which formally rejects proportionality review, also officially rejects horizontal effect, via the state action rule, according to which constitutional rights apply only against state action. Both require the courts to openly play roles outside their traditional comfort zones. Notably, the Court’s commitment to the state action rule—much like its commitment to the tiered review system (Chapter 4)—often falters in practice.99 Were the Court to more fully relax its state action doctrine, at least with regard to First Amendment and equal protection cases, a context-rich balancing of the real interests at stake would be the logical result.100 The constitutional law is not the only portal through which proportionality can enter the private law. In Germany, a form of proportionality was rooted in private law even before horizontal effect claims were brought before the Constitutional Court. A number of important provisions of the Civil Code, which took effect in 1900, imposed a proportionality requirement. For instance, § 228 provides in relevant part that: A person who damages or destroys a thing belonging to another in order to ward off from himself or from another a danger threatened by the thing does not act unlawfully if the damage or destruction is necessary to ward off the danger and the damage is not out of proportion to the danger. What is more, a number of private law scholars had advanced approaches to private law adjudication rooted in proportionality thinking.101 Proportionality had also been established in the German labor courts, even before the GFCC embraced the principle.102 Proportionality’s familiarity across the different domains of German law arguably made the expansion of rights reasoning beyond the confines of constitutional law less disruptive and difficult than it otherwise might have been. (p.155)

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Constitutional Dialogues Rights in the Balance

While the doctrines that courts devise to manage the horizontal effect of rights vary widely, it is not necessary to analyze in detail these technical differences here. Rather, we will describe in very broad strokes some of the leading jurisprudence from influential jurisdictions, and then illustrate the work that proportionality balancing does to make a system of constitutional governance more complete. The GFCC’s first important encounter with horizontal effect claims—in Germany, called third-party effect (Drittwirkung)—came in the Lüth (1958) case (see also Chapter 3). When Erich Lüth organized a boycott of a new film because the filmmaker had made Nazi propaganda during the Third Reich, the filmmaker sued him under the German Civil Code for intentionally harming his business in violation of public policy, and the civil court sustained his claim. The GFCC voided the ruling on the grounds that it violated Lüth’s right to free expression. As described by the GFCC in its landmark decision, constitutional rights lead double lives: they are subjective rights that individuals hold and can exercise against the state; but they also constitute an objective order of values, and this order radiates throughout the whole corpus of law. While disputes between private parties remain private law disputes to be decided under the Code, they must be decided in a way that is consistent with the values encoded in rights (Chapter 3). The general clauses of the Code—provisions that reference openended concepts such as public policy—are the portals through which constitutional values enter. The doctrine of third-party effect as announced in Lüth imposes on all judges a duty to balance constitutional rights with the other values implicated by private disputes. The Supreme Court of Canada’s first important horizontal effect precedent was RWDSU v. Dolphin Delivery (1986).103 A trial court granted, and an appeal court sustained, an injunction against a labor union engaged in secondary picketing— against a party not directly involved in the labor dispute—on the basis of a common law rule against secondary picketing. The union claimed that the injunction infringed its rights to expression and free association under the recently enacted Charter of Rights and Freedoms. The opinion discussed the Charter’s applicability to the common law, private parties, private litigation, and judicial orders before coming to the bottom line: “Where … private party ‘A’ sues private party ‘B’ relying on the common law, and where no act of government is relied upon to support the action, the Charter will not apply.”104 But the Court added that “the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution,” with the result (p.156) that the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law.105

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Constitutional Dialogues Unlike in Germany and Canada, in South Africa, the Constitution provides explicit guidance about how rights apply horizontally. Section 8(2) contemplates direct horizontal effect, at least in some circumstances: A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. Section 8(3) further provides that, when Section 8(2) applies in common law cases, the courts should apply or develop the common law to give effect to the right, but may also develop the common law to limit the right in accordance with the Section 36(1) limitations clause, which imposes a form of proportionality (Chapter 3). The CCSA first addressed these provisions in Khumalo (2002).106 The plaintiff, a politician, successfully sued a newspaper for defamation, over the defendant’s contention that the common law of defamation violated the right to free expression insofar as it permits a plaintiff to recover without proving the falsity of the statements. Before the Constitutional Court, the newspaper advanced an interpretation of Section 8(2) whereby the Constitution applied to the common law in all circumstances. The Court rejected this blanket approach, taking on board Section 8(2)’s qualification to the effect that a right’s capacity to bind private parties depended on the nature of the duty it imposed. The Court concluded that the free expression right does apply in the defamation context, given the “intensity” of the right and its susceptibility to invasion by private parties.107 Although representing only a small sample of horizontal effect doctrines, these three sketches give a sense of the diversity of approaches that courts take. But notwithstanding their formal differences, the judges use proportionality balancing to bring constitutional rights into play in private law litigation. Of course, the fact that courts rely on balancing does not mean that they will reliably reach the same outcomes: different courts may strike the balance differently. Indeed, when it comes to the freedom of expression’s impact on libel, defamation, and privacy cases, the GFCC routinely produces what appear to be inconsistent outcomes,108 in part because it is reviewing the balancing of the civil courts. What does not vary is the Court’s insistence that private law judges use proportionality balancing when they process disputes in which rights are implicated. Both parties will typically plead a right in such cases. Scholars have characterized the procedure for handling colliding rights claims in different (p. 157) terms—as a “doubled proportionality control,” or a search for an “optimal balance” or “practical concordance”109—but the key idea is that judges are responsible for ensuring that one right does not infringe disproportionately on the other. The GFCC’s analysis in Lebach (1973) illustrates.110 The claimant sued to block the broadcast of a documentary on the armed robbery of a barracks in Page 27 of 38

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Constitutional Dialogues which he was involved several years earlier. The robbery had resulted in the deaths of soldiers, and the claimant had served prison time for his involvement. The documentary referred to him by name, showed his picture, and discussed his sexual involvement with one of the other male participants. The claimant alleged that the scheduled broadcast would hinder his resocialization, in violation of the right to free development of personality, while the broadcaster asserted a right to provide information. The GFCC started from the proposition that both rights were essential aspects of the free democratic order protected by the Basic Law, so that neither could take precedence in any permanent way. Rather, the Court’s task was to decide how each right could accommodate the other, or determine which should prevail if harmonization proved impossible. The Court held that, while the right to provide information could sometimes abridge personality rights, it could not do so disproportionately. The GFCC then laid down some basic guidelines for how the civil courts should balance in such situations. Although publishing personal information about a lawbreaker must be recognized as a significant infringement of personality rights (covering privacy), the public’s interest in information will generally trump when the report is contemporaneous with the crime. When the crime occurred in the past, however, the public’s interest in information diminishes in importance, and the interest of the former lawbreaker in being left alone gains as he seeks to reenter society. Guided by these principles, the Court found the constitutional complaint justified. Notwithstanding the formal differences between the approaches of the GFCC and the Supreme Court of Canada, the analysis in the latter court’s ruling in Dagenais (1994) is remarkably similar to the former’s in Lebach.111 Four men on trial for the sexual abuse of minors in a Catholic school moved to enjoin the broadcast of a miniseries on the same subject, and the judge granted the motion, blocking the broadcast anywhere in Canada until the prosecution was completed. The injunction was authorized by the common law and justified, in the judge’s view, by the miniseries’ potential to influence jurors. Writing for the SCC, Justice Lamer found that the right to free expression and the right to a fair trial were both implicated, and that it would be inappropriate to give one automatic priority over the other. Rather, the common law rule permitting publication bans should be adapted to give due (p.158) regard for the competing values. The revised rule was pure proportionality: bans may be ordered only when necessary to prevent a real and substantial risk to trial fairness, when reasonably available alternatives would not be effective, and when the benefits of the ban outweigh the harms to free expression.112 Here, the Court concluded, the ban was not necessary, because less restrictive alternatives would have also protected the defendants’ fair trial rights.

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Constitutional Dialogues The High Court of South Africa’s ruling in Strydom (2008) concerned a collision between religious freedom and equality rights.113 A church had terminated an employee on the basis of his sexual orientation, in violation of an antidiscrimination statute, which had been enacted to enforce the constitutional guarantee of equality. The Constitutional Court recognized that both religious freedom and equality rights were implicated by the dispute, which required the Court to engage in balancing. The Court acknowledged the conflict between Strydom’s sexual behavior and the church’s teachings, but concluded its religious freedom was insufficient to outweigh Strydom’s right to nondiscrimination. Because Strydom was contracted by the church to teach music, rather than to provide spiritual leadership, his continued employment interfered only minimally with the church’s religious autonomy. By contrast, the impact of firing Strydom on his right to equality, and his human dignity right, was substantial. The degree to which constitutional rights have penetrated private law differs substantially across jurisdictions. The CCSA, for instance, has adjudicated only a handful of cases under Section 8(2) and 8(3). The SCC has a larger body of horizontal rights jurisprudence,114 though not as extensive as the GFCC’s. Mattias Kumm has termed Germany the land of the “total constitution,” and bringing the private law within the ambit of rights jurisprudence is essential to that result.115 Given both the formal differences in doctrine and the practical differences in how much constitutional rights have reshaped private law, the methodological similarities in the courts’ approaches—their reliance on balancing and proportionality—are all the more striking. Building Horizontal Effectiveness

Of course, the real impact that constitutional rights have on private law depends on more than the rulings of the constitutional court. For constitutional rights to gain in effectiveness horizontally (in the sense in which “effective” is used in this book), those who produce and maintain the private law must take them into account in their decision making. Here too, we (p.159) can find ongoing, dialogic exchanges between those institutions and the constitutional court over the application of rights. To be sure, there is substantial variation across systems. Among other things, genuinely dialogic exchanges—as opposed to one-sided conversations in which the court speaks but hardly listens—presuppose that the other institutions involved employ robust deliberative decision-making processes that produce articulated justifications for their choices. Not all institutions can manage this, especially in systems where norms of rule of law and constitutional governance are weak. In one of its early rulings, from 1992, the Colombian Constitutional Court justified muscular judicial action to protect constitutional rights by highlighting the institutional weakness of the legislative branch (as well as the consolidation of power in the executive branch).116 Few courts are likely to show Page 29 of 38

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Constitutional Dialogues their disdain for another branch of government so explicitly, but their assessments of other institutions’ capacities will shape how they interact. Courts, legislatures, and even administrative bodies are involved in shaping the private law. Constitutional courts interact with officials in each branch differently, but their approach to dialogue typically reduces to a simple command: the more you can demonstrate that you take constitutional rights seriously within your decision-making procedures, the more we are likely to take your decisions seriously. The GFCC’s Heck Formula, named after the Justice who developed it in a 1964 ruling, makes the terms of the deal explicit when it comes to that court’s interactions with other courts. It provides that the GFCC should not second-guess an ordinary court’s application of the law, so long as it does not rest on the failure to recognize a right, to engage in balancing, to properly apprehend the right’s scope and meaning.117 The formula recognizes that the civil law courts are the front-line adjudicators for private law disputes and the stewards of the German Civil Code. At the same time, it gives ordinary courts a powerful incentive to engage in rights reasoning as part of their work, and to do so conspicuously. The GFCC does sometimes correct the constitutional reasoning of the ordinary courts,118 in effect, rebalancing, but generally the latter earn a measure of deference for having balanced in good faith in light of the GFCC’s case law. The GFCC, often in partnership with the civil courts, have been involved in longrunning exchanges with the federal legislature over the content of the Civil Code. The Court has worked diligently, over decades, to cajole Parliament to bring German family law into alignment with equality norms. Article 3 of the Basic Law declared the equality of men and women, but only took effect (p.160) in 1953—four years after ratification—giving the legislature time to eliminate unequal treatment in the laws. In 1953, many distinctions between men and women remained in the Civil Code, particularly in family law, and constitutional complaints soon began to arise. After the GFCC approved efforts by the Supreme Civil Court to interpret substantial portions of family law to eliminate gender disparities, the legislature got into gear, passing an equal treatment law in 1957. In the years that followed, the GFCC—as a partner of the Supreme Court—continued to push the legislature to address remaining disparities, within an increasingly delineated zone of proportionality.119 In Canada, too, courts, legislatures, and administrative agencies have intensively interacted to develop the rights of non-discrimination norms within the private law. By the late 1970s, parliaments at both the provincial and national levels had enacted human rights codes that imposed such norms (and many others) on private parties, and created commissions and tribunals to administer them. After adoption of the Charter (1982), the SCC reframed these codes as part of a broader constitutional project, declaring them to be “of a special nature, not quite constitutional but certainly more than ordinary.”120 This cast the Page 30 of 38

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Constitutional Dialogues commissions and tribunals in the role of elaborating the meaning of Charter equality values, albeit under the Supreme Court’s supervision. Most have embraced this role, incorporating Charter considerations into their legal and policy analysis, and citing Charter jurisprudence in their decisions.121 For its part, the Court has stated that it would treat the constitutional deliberations of rights commissions with respect, observing that there were many instances in which the latter were better placed to evaluate constitutional questions than the federal courts.122 These examples by no means exhaust the means through which the horizontal application of rights can expand the scope of constitutional governance. Caldwell for example, has described how in China, horizontal rights have at times been deployed less as complements to vertical rights, and more as substitutes.123 While China’s 1982 Constitution does contain rights provisions, their enforcement is committed to the National People’s Congress: constitutional rights are not supposed to be cited as sources of law in judicial decisions. Occasionally, however, lower courts have invoked rights provisions in privateparty litigation. For instance, in 2001, an injured construction worker won a damages award against a private contractor and a sub-unit of the railroad ministry on the basis of the Constitution and labor law. When a worker mishandled ten tons of driveway panels, they fell, crushing his hand.124 (p.161) In its decision, the court referred to Article 42(2) of the Constitution, which provides that the state will enhance occupational safety and health, and the labor statute, which also contains a labor safety guarantee. The court found that the contractor had taken insufficient steps to protect the safety of the workers, by choosing manual installation of the panels, rather than a safer, more expensive, alternative: using cranes. The judges invalidated the liability exclusion clause in the contract workers had signed, on the grounds that it violated labor rights in both the Constitution and the labor statute. In this case and others like it, Chinese courts have used rights horizontally, coupled with a type of proportionality review, as a means of holding private parties accountable when the government has failed to meet its constitutional obligations. More generally, building on case law, scholars have argued for a broader use of proportionality in China to regulate private parties’ conduct.125

Conclusion As this chapter demonstrates, deliberating proportionality is not just something constitutional judges do when they evaluate governmental acts. Rather, in virtually every polity in which a constitutional or supreme court has committed itself to building systemic effectiveness, PA has become general principle of legitimate governance, tout court. Where apex courts consistently apply PA, they construct the proportionality principle as a basic criterion of the legitimacy of the decision making of all officials. To the extent that a trustee court insists that all policy—all law—measures up to proportionality, legislatures, administrative authorities, and private law judges will be pushed to internalize the values that Page 31 of 38

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Constitutional Dialogues inhere in that standard. As this chapter shows, where proportionality has become the lingua franca of constitutional governance, it has reshaped how policy is made and law is applied, and how the branches of government communicate with one another. While there is wide cross-national variance in the tenor and intensity of proportionality-based dialogues, such interactions are today at the very heart of constitutional governance in the modern constitutional state. Notes:

(1) See also Petersen (2017: ch. 3). (2) Fisher (1988). (3) Stone (1989; 1992; 1994); Stone Sweet (2000). See also the seminal work on Germany by Kommers (1976) and Landfried (1984). (4) Following from Hogg and Bushell (1997). (5) Fisher (1988); Pickerill (2004); Stone (1994). (6) In theories developed pursuant to empirical research designed to explain the impact of constitutional jurisprudence on legislative decision making; see Stone Sweet (2000: chs. 3, 4; 2002). (7) Stone (1990). (8) Brewer-Carías (2014). (9) For an analysis of U.S. abstract review, see Shapiro and Stone Sweet (2002: ch. 6). For an analysis of changes under the Roberts Court, see Metzger (2009). (10) Kelemen (2017); Sadurski (2018); Varju and Chronowski (2015). (11) Some e.g., Petersen (2017), following Vanberg (1998; 2009) would add a fifth variable: the state of public opinion on important policy choices being adjudicated as rights disputes. The hypothesis: a court will be more likely to censor or otherwise constrain the government and its majority when it believes that public opinion will support the move. The idea is that a court will be sensitive to majoritarian views, in order to counter the charge that it functions as a counter-majoritarian organ of governance. We have no doubt that constitutional judges care about public opinion, but there are also reasons to be skeptical that it constrains them in any systematic sense. (12) Stone (1994), adapting Fisher (1988). (13) Supreme Court of Canada (2013: para. 167). For a discussion of the law and politics of delayed invalidations in Canada, see Sathanapally (2012: 43); Hogg, Thornton, and Wright (2007). Page 32 of 38

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Constitutional Dialogues (14) Cepeda Espinosa and Landau (2017: 374–6). (15) Supreme Court of Canada (2013). (16) Vermeule (1997). (17) Stone Sweet (2000: 72–3). (18) Cepeda Espinosa and Landau (2017: 372–3). (19) Supreme Court of Canada (1998: 498). (20) German Federal Constitutional Court (1994). (21) Stone Sweet (2000; 2002). (22) Stone Sweet (2002). (23) Beyme (1998: 110). (24) Hiebert (2011). (25) Boraine (2014: 43–58). (26) Sachs (2011: 147–8). (27) Constitutional Court of South Africa (2006); Czapanskiy and Manjoo (2008). (28) Stone Sweet (2000: ch. 3). (29) Weinrib (2016). (30) Dixon (2009); Dixon, Sigalet, and Webber, eds. (2018); Gardbaum (2013); Hiebert (2006; 2011), Hogg and Bushell (1997); Manfredi (2007); Roach (2001, 2008); Waldron (2004). (31) Barak (2012a: 417). (32) Put differently, a court that effectively draws the outer boundaries of the zone will also blur the supposed boundaries that distinguish legislative from judicial lawmaking. (33) Barak (2012a: 245–6). (34) For an exhaustive list of such instances in Canada, Germany, and South Africa, see Petersen (2017: 117–19). (35) Constitutional Court of South Africa (1999b: para. 59). (36) Constitutional Court of South Africa (1999b: paras. 64–83). Page 33 of 38

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Constitutional Dialogues (37) Constitutional Court of South Africa (1999b: paras. 84–8). (38) German Federal Constitutional Court (2017). (39) Supreme Court of Canada (2002). The version of PA used by the SCC does not include a formal “legitimate purpose” stage, which tends to migrate into the suitability analysis. (40) Supreme Court of Canada (2002: 522). The Court also found that the statute failed every other subtest of PA. (41) The use of the “notwithstanding clause” to maintain the enforceability of a statute found to have violated a Charter right does not render the statute constitutional. (42) Manfredi (2007). (43) Supreme Court of Canada (1993). (44) Constitutional Court of South Africa (1999). (45) European Court of Human Rights (2005) (discussed in Chapter 6). (46) The LRM test can also perform functions of tests for proper purposes, to the extent that it is used to “smoke out” illicit motives; see Cohen-Eliya and Porat (2013). (47) Supreme Court of Israel (1995), quoted in Barak (2012a: 317). (48) Korean Constitutional Court (2006). (49) Korean Constitutional Court (2008). (50) Barak (2012a: 342). (51) Stone Sweet and Ryan (2018: 62). (52) German Federal Constitutional Court (1975). (53) German Federal Constitutional Court (1993). (54) See Stone Sweet (2000: ch. 4). (55) Shapiro and Stone Sweet (2002: ch. 6). On facial challenges from an American perspective, see Fallon (2011). (56) Fabbrini (2014: ch. 5); De Jesus (2013). (57) See, for instance, Rose-Ackerman, Egidy, and Fowkes (2018: 108–9).

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Constitutional Dialogues (58) For a discussion of the different ways in which national jurisdictions vary in their approaches to proportionality in administrative law, see Mathews (2017). (59) Garoupa and Mathews (2014). (60) Hathaway (2003); Shapiro and Stone Sweet (2002: ch. 2). (61) Dicey (1982: 213). (62) For an account of the development of the French model of administrative review, see Stone (1992: chs. 1, 3). (63) Backer (2012). (64) Supreme People’s Court of the People’s Republic of China (1999). (65) Huang and Law (2016: 324). (66) Zhan (2003). (67) Constitution of China, Art. 85. (68) China State Council (2004). (69) Huang and Law (2016: 325). (70) Taggart (2008); Wilberg and Elliott (2015). (71) For a detailed description of the jurisprudence, see Walters (2015). (72) Supreme Court of Canada (1989b). (73) Supreme Court of Canada (1999). (74) Supreme Court of Canada (2012; 2015). Doré involved a challenge to an administrative adjudication, which the Court considered less amenable to proportionality review than other forms of administrative action. (75) Supreme Court of Canada (2012: 427). (76) Supreme Court of Canada (2015: 637). (77) Ossenbühl (1997: 618). (78) Ossenbühl (1997: 618); Marsch and Tünsmeyer (2016: 31). (79) Stern (1993: 172). (80) Ossenbühl (1997: 620). (81) Mehde (2014). Page 35 of 38

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Constitutional Dialogues (82) German Federal Constitutional Court (2007). (83) Mehde (2014: 543); Marsch and Tünsmeyer (2016: 31). (84) Law on the Presence, Employment, and Integration of Foreigners in the Federal Region, § 53 (2018). (85) Taiwan Constitutional Court (1978); Lin and Hsu (2017: 327). (86) For more on the conflict, see Ginsburg (2003: 239–42). (87) Garlicki (2007: 50). (88) Huang and Law (2016: 313–14). (89) Huang and Law (2016: 314). (90) See, e.g., German Federal Constitutional Court (1979). (91) Marsch and Tünsmeyer (2016: 31). (92) The name “hard look review” comes from Greater Boston Television Corp. v. FCC (U.S.D.C. Cir. 1970). (93) Mathews (2016). (94) It is also sometimes referred to as the “third-party effect” of constitutional rights, after the term commonly used in German constitutional jurisprudence, Drittwirkung. (95) For further discussion, see Mathews (2018: ch. 1). (96) In practice, the distinction may be more a procedural or pleading matter than a real difference; see Kumm and Comella (2005). (97) Stone Sweet (2004: ch. 4); Kokott and Sobotta (2017). (98) The GFCC decided both Apothekenurteil (proportionality) and Lüth (horizontal effect) in 1958. The SCC decided both Oakes (proportionality) and Dolphin Delivery (horizontal effect) in 1986. (99) Law professor Charles Black famously called the Court’s state action jurisprudence “a conceptual disaster area” more than fifty years ago; Black (1967: 87). (100) Peller and Tushnet (2003). (101) See Tischbirek (2017: 43–51).

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Constitutional Dialogues (102) The labor courts actively have actively partnered with the Court of Justice of the EU to overcome the GFCC’s resistance towards using PA to adjudicate certain non-discrimination claims; case study in Stone Sweet and Stranz (2012). (103) Supreme Court of Canada (1986b). (104) Supreme Court of Canada (1986b: 603). (105) Supreme Court of Canada (1986b). (106) Constitutional Court of South Africa (2002). (107) Constitutional Court of South Africa (2002: para. 33). (108) Quint (1989). (109) Tischbirek (2017: 56–7). (110) German Federal Constitutional Court (1973). (111) Supreme Court of Canada (1994). (112) Supreme Court of Canada (1994: 878). (113) High Court of South Africa (2008). (114) Mathews (2018: 175–205). (115) Kumm (2006). (116) Constitutional Court of Colombia (1992: para. 8). (117) German Federal Constitutional Court (1964: 92). (118) In the Deutschland-Magazin case, the Court explained that less deference would be forthcoming the more intense the rights infringement was. German Federal Constitutional Court (1976). (119) Ruffert (2001: 405–7). (120) Supreme Court of Canada (1985b: 457). In the Vriend ruling, discussed above, the Court went so far as to read more comprehensive non-discrimination norms into the Alberta code. (121) Eliadis (2014: 80). (122) Mathews (2018: 194). (123) Caldwell (2012).

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Constitutional Dialogues (124) People’s Court of Meishan County, Sichuan Province (2001). (125) A case discussed by both Ji (2016) and Zheng (2016) concerns a dispute arising out of a land purchase. The parties to a real estate contract afterwards fraudulently changed their names to avoid paying for the transfer tax. A dispute regarding the contract subsequently arose, and the question before the court was whether the contract should be completely nullified. Since the power to nullify a contract derived from the need to protect the public, the court reasoned, it would “use proportionality theory to examine the public interests and private interests involved, and use such theory as a guide to determine whether nullifying such contract is appropriate, necessary, and proportionate.” The court concluded that nullification of the whole contract was not necessary, because the parties had agreed to pay the transfer tax, and therefore not appropriate.

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Global Constitutionalism and Transnational Governance

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

Global Constitutionalism and Transnational Governance Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0006

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

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Global Constitutionalism and Transnational Governance Keywords:   European Convention on Human Rights, Inter-American Convention on Human Rights, African Union Charter of Human and People’s Rights, East African Community, Economic Community of West African States, constitutional pluralism, human rights treaties, margin of appreciation, consensus analysis

This chapter examines the evolution of treaty-based human rights regimes in Europe, the Americas, and Africa. States may establish a transnational system of justice through the creation of (i) a charter of rights, (ii) a court to enforce it, and (iii) a means through which individuals can activate judicial review of state compliance with the charter. A highly contentious debate rages over whether a treaty-based international regime can be “constitutionalized” through the gradual accretion of “constitutional” characteristics and functions.1 Our approach to this issue is primarily empirical. The evidence shows that, under favorable conditions, the efforts of transnational judges to construct a relatively integrated, multi-level system of justice can enhance the effectiveness of domestic systems. This is a deep form of constitutionalization that may take place in a regional human rights regimes. The fate of constitutionalization will depend critically on the acceptance, by domestic officials, of the transnational court’s authority to resolve disputes of an inherently constitutional nature in the domestic context. Today, the European and the Inter-American courts take pains to portray their role and function in constitutional terms, a posture the three African regional courts appear to be following. They insist on the binding erga omnes effects of their rulings, for example; and they routinely stipulate detailed guidelines with respect to how domestic legal arrangements must be reformed in order for a state to comply with the regional charter and its own constitution. Constitutionalization proceeds—it is, in effect, ratified—to the extent that state officials “incorporate” the regional charter of rights into the national legal order, as directly enforceable law with a rank at least above statute. Each of the five courts under consideration insists on its own primacy with respect to the interpretation of charter rights; each considers such interpretations to be binding on all domestic judges; and each has either stated or strongly implied that states are under a duty to incorporate the (p.163) regional charter. All have adopted proportionality, which the European and InterAmerican courts, in particular, have prioritized as an instrument of transnational governance. National trustee courts can and do resist transnational courts; but an increasing number have also held that international human rights—and respect for the jurisprudence of the regional court—are an integral part of their own domestic systems of justice. Today, domestic and treaty-based charters overlap, reflect, and reinforce one another; and trustee courts, at both levels, intensively interact with one another on the basis of shared doctrinal commitments to building the effectiveness of rights protection, including the enforcement of the proportionality principle. These facts support the view that a global, rights-based commons—a discursive field made up of norms, principles, and rules of adjudication that are subject to constitutionalization—has emerged.

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Global Constitutionalism and Transnational Governance I Treaty Regimes and Trustee Courts In Chapter 1, we discussed the importance of incomplete contracting and imperfect commitment to explain ubiquitous features of domestic systems of justice. Regional conventions on human rights, too, are incomplete contracts, insofar as the member states—as the High Contracting Parties—decline to specify the content and scope of rights provisions. Regional charters resemble domestic charters. They announce a small number of absolute rights (e.g., the prohibition of torture, slavery, and inhuman treatment), before listing the qualified rights. Incomplete contracting, and copying from existing templates, facilitate interstate agreement at the drafting stage, while raising downstream problems of interpretation and enforcement. To resolve these problems, states delegated to trustee courts. The Europe, American, and African courts have used these powers to develop general principles of law in order to increase regime effectiveness. They have developed the proportionality principle, in particular, to enable the close supervision of the rulings of apex national courts. As their dockets have expanded, so has their willingness to give detailed guidance on how domestic systems must be reformed to meet treaty standards of protection. Trusteeship and Lawmaking

In the international context, a trustee court can be identified on the basis of three criteria.2 First, the court is the authoritative interpreter of the regime’s (p.164) law. Its decisions are final; no appeal is possible; and the court holds the authority to resolve any dispute concerning the scope of its own competences. Second, the court exercises compulsory jurisdiction with respect to disputes concerning states’ compliance with their treaty obligations.3 Third, it is virtually impossible, in practice, for contracting states to reverse the court’s important rulings.4 In trusteeship situations, states are able to override judgments of the court only by revising the treaty, and revising an international treaty requires unanimity of the contracting parties. In this account, courts are trustees of the values—embodied in a charter of rights—placed in trust, and they discharge various “fiduciary” duties in the service of protecting rights (Chapter 1). Of course, courts that meet these criteria vary in the powers they possess, and the effectiveness of the regimes they oversee. More generally, (i) incomplete contracting, (ii) the established sources of international law, and (iii) decision rules governing treaty revision combine in ways that trustees can exploit in efforts to build systemic effectiveness. By definition, incomplete contracting leaves gaps, both substantive and procedural. The representatives of the founding states of the European, Inter-American, and African Conventions were virtually silent on how rights would be interpreted and applied; and they chose not to elaborate judicial procedures. Each of these courts has used its powers to fill these gaps, not least through promulgating and revising procedures, and by developing “general principles of law.”

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Global Constitutionalism and Transnational Governance The “general principles of law recognized by civilized nations” comprise one of the sources of law that international courts develop and apply.5 At the same time, there is no codified statement of their content, and no authoritative, prescribed method for their identification or application. General principles are unwritten, doctrinal constructions curated by judges. Historically, general principles materialized in national judicial decisions as more or less self-evident propositions, typically applied by national judges as inherent, taken-for-granted, constituent elements of their legal systems. The proportionality principle first gained traction in exactly this way (Chapter 3). General principles fill gaps, often coming into play when basic texts are absent, including relevant constitutional law and statutes. As new international courts (p.165) have come on line over the past half century, they have become major sites for the development and use of general principles.6 There is an irony surrounding the “general principles of law recognized by civilized nations.” By definition, they are meant to be already embedded in wellfunctioning legal systems. Yet when judges identify new principles, reason outward from them, and then apply them broadly across a range of circumstances, they become architects of their own legal systems. Indeed, the development of general principles has catalyzed systemic transformation in a wide range of national and international judicial systems, not least because such principles are foundational norms. Consider how scholars have described their various functions. General principles, it is claimed, lay “down the essential elements of the legal order,”7 express the “fundamental legal concepts and essential values of any legal system,”8 and legitimate “all or any of the more specific [legal] rules in question.”9 As we have emphasized throughout the book, these types of arguments firmly apply to proportionality, wherever apex courts have firmly embraced the principle as an overarching criterion of legal validity and legitimacy. As in the domestic context, trustee courts possess inherent authority to expand their own zones of discretion (Chapter 1). The Court of Justice of the European Union (CJEU) famously wrote into the treaty law of the EU the doctrines of direct effect, supremacy, and state liability, strengthening the legal system’s capacity to deal with state noncompliance regarding entitlements granted by the Treaty and EU statutes.10 These doctrines enable individuals to bring actions directly before national judges, who are required to give primacy to any EU legal norm that conflicts with ordinary national law, including statutes. The European Court of Human Rights (ECTHR) treats the Convention as a “living instrument”: rights are to be interpreted dynamically, and progressively, as European society evolves.11 In fact, the ECTHR has steadily raised standards of rights protection binding on the members of the Council of Europe, not least through strategic use of PA.12 For its part, the Inter-American Court of Human Rights (IACTHR) has copied the European approach, including the “living instrument” formulation.13 The IACTHR combines progressive “evolutive” interpretive Page 4 of 38

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Global Constitutionalism and Transnational Governance techniques with a strong commitment to fulfilling the pro homine principle.14 As the Inter-American Court now reiterates time and again: (p.166) The Court has established, as has the European Human Rights Court, that human rights treaties are living instruments, whose interpretation must go hand in hand with evolving times and current living conditions … In this regard, when interpreting [the Convention], it is always necessary to choose the alternative that is most favorable to the protection of the rights enshrined in said treaty, based on the principle of the rule most favorable to the human being.15 The African Union’s organs (its human rights commission and court) have begun to develop a similar approach,16 again, as a means of building systemic effectiveness. International Courts and Proportionality

The world’s most important international courts have embraced proportionality as a general principle of law. In the 1970s and 1980s, under direct German influence, the CJEU, the ECTHR, and the World Trade Organization Appellate Body (WTO-AB) incorporated it without providing supporting legal argument, or citing to the case law of another court.17 They then developed versions of PA for adjudicating “derogation” or “limitation” clauses, provisions that permit a state to claim an exemption from treaty obligations for measures “necessary” to achieve a sufficiently important public purpose. The adjudication of such clauses is the most controversial task a trustee performs, for three reasons. First, a state does not violate its treaty obligations if the court accepts its claim under a derogation clause. Second, as in the domestic context, courts cannot enforce the proportionality principle without delving deeply into the policy decisions of state officials. Third, a coherent jurisprudence of permitted exemptions establishes regime-wide guidelines for policy-making. In each of the regimes just mentioned, judges have developed PA as a means of coordinating lawmaking at the domestic and international levels, if not always successfully. It is worth stressing that these courts could have adopted a more hands-off, deferential standard of review; after all, the contracting parties themselves legislated derogation and limitation clauses. (p.167) Instead, they embraced an intrusive standard (PA), justifying the move, if at all, as a means of enhancing systemic effectiveness.18 The diffusion of PA to international courts reproduced the main features of the process found in the domestic context (Chapter 3). International judges that followed in the footsteps of the courts of the EU, the ECHR, and the WTO cited to those pioneers in support of the view that proportionality constituted an established general principle of law. For example, once treaty-based disputes between international investors and states became commonplace, in the 2000s, Page 5 of 38

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Global Constitutionalism and Transnational Governance arbitration tribunals too began to use proportionality, invoking ECHR and WTO authority.19 The IACTHR developed a full-blown version of PA in the context of a cluster of freedom of expression cases decided between 2004 and 2009, citing heavily to the ECTHR’s case law.20 And, beginning in 2013, the African Union’s court—the African Court on Human and Peoples’ Rights (ACTHPR)—embraced PA too,21 citing to the jurisprudence of the ECTHR and the IACTHR plus the work of the UN Human Rights Committee22 (UN HRC). Effectiveness

In Chapter 1, we discussed the conditions required for any system of justice to gain effectiveness over time: (i) a steady case load; (ii) an accreted jurisprudence, recording how judges have interpreted and applied the charter; and (iii) the acceptance, by state officials, that the court’s important rulings possess precedential value. In a regional human rights regime, the crucial factor is the extent to which officials—in particular, judges on national apex courts— accept the transnational court’s evolving jurisprudence as authoritative, and adapt their own decision making to it. Unlike a domestic trustee, no regional human rights court possesses the authority to invalidate a national legal norm that conflicts with the charter, which weakens capacity to control outcomes. For a regional system of rights protection to gain in effectiveness, national officials must be willing to reinvest in its court, knowing that it will sometimes produce what will be, for them, undesirable outcomes. (p.168) Of all regional human rights courts, the ECTHR manages the most complete system of justice, processes the largest caseload, and curates the densest and most influential jurisprudence. The institutional development of the European regime closely tracks the consolidation of the “new constitutionalism” on the Continent. Of the original founders of the Council of Europe—of which the ECHR is the centerpiece—only Ireland had any meaningful experience with rights review. In 1950, states rejected creating a court with compulsory jurisdiction; they could, instead, opt-in through an optional protocol. When objections were levied against proposals to allow individual applications, they made the individual petition optional for states as well. They placed an administrative body, the Commission of Human Rights (which began operation in 1954), between applicants and the Court (which began operating only in 1959). Until it was abolished in 1998, it was the Commission’s task to process applications, whether from states or individuals. Petitions reached the Court only after the Commission had completed its work, and only under certain conditions.23 States transformed the regime through the ratification of Protocol no. 11, which entered into force in November 1998 and binds all forty-seven members of the Council of Europe. Protocol no. 11 confers upon the Court compulsory jurisdiction over petitions from individuals that claim a violation of Convention rights, after exhaustion of national remedies. If the Court finds a violation, it Page 6 of 38

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Global Constitutionalism and Transnational Governance may award monetary damages. By 1998, new systems of constitutional justice had been established across Europe, in successive waves of democratization. The basic formula of the new constitutionalism—an entrenched, written constitution; a charter of rights; and a trustee court—was replicated in every new European constitution adopted since 1949. After the collapse of the Soviet bloc, with constitutional reconstruction in full swing, the Council of Europe offered admission to post-communist states on the basis of certain conditions, including a commitment to constitutional justice. Locking them into the ECHR, and placing them under the supervision of its Court, was an obvious means of securing that commitment. The post-Protocol no. 11 reforms not only generated a steady case load: they caused the docket to explode, threatening to overwhelm the Court altogether. The Court registered 49 individual applications in the 1960s, 163 in the 1970s, and 455 in the 1980s. In 1999, the first full year after the reform, the Court received 8,400 petitions. The Court gathered 65,800 in 2013, and more than 150,000 in the latest three-year period. Today, fewer than 3 percent of all individual applications will result in a judgment on the merits. Through 1982, the Court had issued, in its history, only 61 merits rulings. In the 2001–16 period, the Court rendered 17,861 fully reasoned judgments, an (p.169) average of more than 1,100 per year, more than 85 percent of which found at least one violation. As the end of 2016, some 79,750 cases were pending, 85 percent of which were produced by just ten states. The Court has developed, with the support of the member states (through the Committee of Ministers), a variety of means of coping with overload.24 It relies heavily on precedent-based rulings that contain detailed summaries of its case law, for example, in order to limit redundancy while furnishing useful guidelines to domestic judges on how to enforce the Convention on their own. The Court insists that its important rulings bind all domestic courts; that is, its precedents produce erga omnes (not just inter partes) obligations. Nevertheless, it will abandon a line of case law in order “to ensure that the interpretation of the Convention reflects societal change and remains in line with present day conditions.”25 In summary, the European Court is well positioned to exercise effective trusteeship. On the input side, it can expect to see all important violations of Convention rights. On the output side, the ECTHR has produced a dense and elaborate case law that provides national officials with an authoritative construction of Convention rights. These points made, serious deficiencies in domestic systems have resulted in overload and crisis, threatening the Court’s mission in obvious ways. In the Inter-American system, constitutional reconstruction has also heavily impacted the court’s evolution. At present, only twenty of the thirty-five members of the Organization of American States have accepted the compulsory jurisdiction of the IACTHR with respect to disputes referred to it under the Page 7 of 38

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Global Constitutionalism and Transnational Governance Inter-American Convention on Human Rights. The scope of the Court’s trusteeship is, therefore, more limited than that of the (post-1998) ECTHR (wherein the acceptance of Protocol no. 11 is obligatory). Of these twenty states, nine promulgated new constitutions in the 1980s as part of a democratization process that followed periods of authoritarian dictatorship or debilitating civil war (Argentina, Brazil, Chile, El Salvador, Guatemala, Honduras, Nicaragua, Suriname, and Uruguay); three states did so in the 1990s (Colombia, Paraguay, and Peru); and two more followed in the 2000s (Bolivia and Ecuador). Panama and Costa Rica extensively revised their constitutions in the 1980s, and Mexico transitioned from a one-party state to a pluralist party system in the 1990s. Thus, since the founding of the court, only Haiti and the Dominican Republic, among the states that now accept the IACTHR’s compulsory jurisdiction, failed to complete a major constitutional and political transition in favor of enhanced rights protection. The IACTHR continues to use a two-tiered system, with a Commission receiving, processing, and filtering applications (abolished in Europe by (p.170) Protocol no. 11). In the 2008–17 period, the Commission received 20,313 applications, accepting only 2,517 of them for “processing.” Of these, it referred 146, or 6 percent of those processed and 0.7 percent of all applications, to the Court. The Court received its first individual petitions only in 1986, and until 1999, produced only thirty-four rulings (8.9 per year). Between 2000 and 2017, it issued 220 judgments (12.2 per year), 170 of which were produced during the past decade (2008–17) (17 per year).26 While the IACTHR’s case load, in comparison to that of the ECTHR, is relatively modest, it has produced a sophisticated jurisprudence. The IACTHR cites routinely to the European Court on virtually all important points of human rights law; indeed, it uses the case law of the ECTHR (and, at times, that of the UN HRC), as a basic template for developing its own jurisprudence. Repeating the formula of the ECTHR, the Court approaches the American Convention as a “living instrument” to be interpreted progressively—in order to raise standards —in light of evolving social conditions and mores.27 It too has sought to strengthen its trustee status by promoting strong doctrines of precedent. And, in 2013, the Court began to require all domestic apex courts to treat the Convention as if it were “an integral, fundamental, and hierarchically superior norm of the national domestic legal system” itself,28 and to faithfully enforce the Convention as the Inter-American Court interprets it. This move, too, is reminiscent of the European Court’s sustained effort to transform itself into a transnational, constitutional court, although it arguably pushes further. Today, both of these courts have fully embraced the notion that the best way to secure the effectiveness of the regime is to secure the “incorporation” of their respective Conventions into national legal orders at a rank above statute.

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Global Constitutionalism and Transnational Governance For its part, the ACTHPR has struggled to find its legs, in the face of indifference and hostility to rights protection on the part of many of the African Union’s fiftyfive members. A 1998 Protocol to the African Charter on Human and People’s Rights created the Court, which entered into force in 2004. For the inaugural members the first years in office were spent building infrastructure. As an official report notes: [During the 2006–8 period], the Court worked mainly on its administrative operationalization. At the time the judges assumed duty the Court had no registry, no offices or equipment and resources, no budget or any rules of Court. The judges [therefore] negotiated a host agreement for the seat of the Court in Tanzania, devised a registry structure and recruited registry staff, prepared and submitted budget proposals to fund the functions, and drafted and adopted its … Rules of Procedure.29 (p.171) Today, thirty states are parties to the 1998 Protocol, but of these, only South Africa possesses a relatively effective system of constitutional justice. Eight states—Benin, Burkina Faso, the Côte d’Ivoire, Ghana, Mali, Malawi, Tanzania, and Tunisia—have accepted the Court’s jurisdiction with respect to applications from NGOs and individuals, Rwanda having withdrawn its declaration in 2016.30 The Protocol establishing the Court confers on it jurisdiction over “all cases and all disputes … concerning the interpretation and application of the Charter … and any other relevant human rights instrument ratified by the States concerned.”31 The Court issued its first judgment on the merits only in 2013; and there are currently fifteen such rulings on the books. Ninety-seven cases are pending, the bulk of which were generated by petitions originating in two states: Tanzania (76) and Rwanda (12).32 Two other African regional courts have also developed their jurisdiction over rights claims. The Court of the Economic Community of West African States (ECOWAS), which began as a guarantor of economic liberties laid down by the ECOWAS treaty, was fundamentally transformed when member states conferred upon it compulsory jurisdiction over individual petitions, including complaints alleging violations of rights, in 2005.33 The ECOWAS Court has since asserted its own authority to enforce, as directly applicable law, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the African Charter on Human and Peoples’ Rights. The East African Court of Justice, which awaits formal state approval of its authority to enforce human rights (discussed below), took it upon itself to render judicially enforceable Article 6 of the Treaty Establishing the East African Community (composed of six member states). This provision enumerates the “fundamental principles that shall govern the achievement of the objectives of the Community”; the objectives include the “promotion and protection of human rights.”34

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Global Constitutionalism and Transnational Governance II Proportionality and Transnational Governance No regional court can build the effectiveness of a transnational system of justice without the support of the regime’s member states. States, acting in (p.172) concert, may curtail the powers of the court, cut its budget, elect judges who have no commitment to rights protection, or abolish the regime altogether. Unilaterally, a state may refuse to comply with rulings, or exit the regime. Why state officials tolerate judicial intrusion, and why they would comply with an unwanted judgment of the court, are complex questions. For any specific case, the factors that help to explain tolerance and compliance combine in kaleidoscopic ways. Crucial domestic-level variables include the nature of the party and electoral system, the structure of government, the potency of judicial review, and the organization of public and private interests. At the regime level, important factors include the terms of the court’s jurisdiction, the density of its jurisprudence, and how it manages politically controversial cases. As we will see, a court obtains important advantages when it uses PA to adjudicate important cases involving qualified rights. Yet, in doing so, the court highlights its own intrusive powers of supervision and control, which can provoke member state resistance. Scholars have emphasized two types of logics to explain why states might be induced to support a court determined to enhance the effectiveness of rights protection. The first operates within and through domestic politics.35 The failure of national systems of justice stokes the demand for rights protection, activates lawyers and public interest groups, and incentivizes the creation of coalitions among actors and institutions (public and private) dedicated to bolstering domestic systems of justice. As a transnational rights regime develops effectiveness, it redistributes legal and political resources within domestic orders in ways that can strengthen the leverage of the regional court. A second set of mechanisms operates at the regime level. States may create trustee courts, and agree to increase their powers over time, as a relatively inexpensive means of monitoring and constraining their neighbors in the region. They may also do so in order to make their own commitments to rights credible, both to international and domestic audiences. These (essentially political) logics plainly influence the behavior of courts and other institutions. Here, we will focus on three legal factors that combine to shape a regional human rights court’s capacity to build effectiveness, acknowledging the connections between them and underlying political realities. The first is the degree of policy discretion the court grants to states when they act to limit the scope of a charter right. Does the court deploy PA when it adjudicates qualified rights? Or does it defer to state officials when they invoke limitation clauses in important cases? The second concerns the capacity of state judges to influence the decision making of executives and legislators. Are rulings binding erga omnes, with precedential effect? The weaker any domestic system of rights protection, the less likely it will be for a state to implement (p.173) Page 10 of 38

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Global Constitutionalism and Transnational Governance properly the regional court’s jurisprudence. The third involves the formal, legal status of the regional charter of rights within the national hierarchy of norms. In particular, does the charter take precedence over statutes that conflict with rights, and are those rights directly enforceable by domestic judges? A regional court will be in the best position to build the regime’s effectiveness (i) if it uses PA while refusing to develop formal deference doctrines, (ii) where domestic courts routinely exercise authority to review the constitutionality of legislative and executive acts, and (iii) insofar as the regional charter has been fully incorporated in domestic legal orders. The European Convention on Human Rights

While the politics of rights protection in Europe remains understudied, scholars have nonetheless developed a coherent account of the regime’s structure and operation.36 The foundations of the system were fundamentally transformed by the combined effects of (i) Protocol no. 11, and (ii) the incorporation of the Convention into domestic legal orders. Protocol no. 11 conferred on individuals an unfettered right to petition the Court after exhausting domestic remedies; and incorporation made Convention rights directly enforceable by national judges, as domestic law. Viewed as a multi-level, transnational system of constitutional justice, the European regime is relatively complete. Protocol no. 11 made the decisions of national judges, and every other domestic official, reviewable by the Strasbourg-based ECTHR. Incorporation conferred on the judges of virtually every apex court (and most lower courts) a duty to protect Convention rights, decisions that are fully reviewable by the Strasbourg Court. The Court has styled itself as a transnational constitutional organ with trusteeship responsibilities, which has at times provoked controversy.37 It is nonetheless indisputable that the Court performs “constitutional” functions, when compared to a national constitutional court. It confronts cases that would definitively be classified as “constitutional” in domestic contexts; and it is likely to receive most important claims that national judges decline to hear. The Court resolves tensions between rights and state interests in light of the proportionality principle, just as the most powerful domestic rights-protecting courts in the world do. It has steadily raised standards with regard to every Convention right; it holds that its precedents bind all national judges (p.174) in the system; and it routinely indicates how a state must reform its law, within a stipulated deadline, in order to avoid future violations. The incorporation process, too, provides support for the constitutional view. Every member state of the Council of Europe has formally integrated the Convention into national hierarchies of norms, typically at a rank enforceable against ordinary statute.38 Some domestic systems bestow on the ECHR express constitutional status, and still others a supra-constitutional rank. Domestification of the Convention expanded judicial authority across Europe, while undermining classic separation of powers doctrines that had long constrained judicial review. Page 11 of 38

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Global Constitutionalism and Transnational Governance Incorporation helped to complete, or positively instantiate, domestic systems of constitutional justice. These dynamics are most visible when we observe the evolution of national orders that (i) did not have a native and judicially enforceable bill of rights, or (ii) whose courts had been prohibited from enforcing rights against statute. In such situations, the incorporated Convention constitutes the domestic charter of rights, filling the void.39 The European Court, like the most powerful domestic constitutional courts, enforces Convention rights as positive requirements of legality, binding on all state officials; and it has fully embraced proportionality, which requires domestic officials to justify their rights-regarding decisions with strong enough reasons, if they are lawfully to limit Convention rights. As important, the Court has insisted that all domestic apex courts use PA when individuals plead Convention rights before them. The use of formal deference doctrines—such as “Wednesbury” unreasonableness, political questions, or permissive rationality tests—is precluded, and in conflict with the right to an effective judicial remedy (Art. 13 of the Convention). In the ECHR, the Court explicitly conceptualizes PA as a tool for building effectiveness, and less intrusive alternatives as a hindrance to that same goal. As a result, the ECTHR has been the most important agent of proportionality’s diffusion both within Europe and globally. Of course, how domestic judges actually enforce proportionality varies widely. Generally, the relative effectiveness of domestic systems of justice is strongly correlated with the degree of robustness with which national judges enforce proportionality. As noted, the European Court is critically overloaded. Unable to provide “individual justice” to every worthy applicant, the Court has steadily enhanced its capacity to render “constitutional justice.”40 In conjunction with the Committee of Ministers (the executive body of the Council of Europe), it has developed the “pilot ruling,” which permits the Court to adjudicate a representative case, or a set of joined cases, while keeping hundreds or even (p. 175) thousands of similar, “clone” claims at bay. While pilot judgments vary in the specificity of the stipulated remedies, their defining feature is that they involve important, systemic failures of domestic systems, require the offending state to implement general measures capable of bringing the system into conformity with the Convention, and establish a precise time frame for doing so. The Court, again supported by the Committee of Ministers, has also revised its admissibility procedures, making it easier to reject petitions, including when a “well-established case law” is in place, and to focus on important new cases. Underwriting the Court’s strategies for dealing with overload is the constitutional principle of “subsidiarity,” which entails relying heavily on national courts to act as faithful trustees41 of the regime, not least when they apply its existing precedents.

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Global Constitutionalism and Transnational Governance The Court systematically uses PA to adjudicate the qualified rights of the ECHR, which are enumerated in Articles 8–11. Although the terms of the individual limitation clauses vary slightly, states are permitted to restrict these rights only if interferences are “prescribed by law,” and only insofar as they are (in the formulation of Art. 8) “necessary in a democratic society in the interests of national security, or public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The respondent state bears the burden of (i) justifying the interference under a “pressing social need” standard and (ii) showing that the means chosen to achieve the policy objective was “proportionate to the legitimate aim pursued.” The Court uses a rich variety of analytical techniques to adjudicate necessity-based limitation clauses. Most important for present purposes, it deploys the necessity prong of PA to determine the size of a state’s “margin of appreciation”: the zone of regulatory discretion within which domestic officials may lawfully act when they restrict a right under a limitation clause.42 If the Court finds that a state measure under review is “necessary” to achieve its legitimate goals, the state will maintain its regulatory autonomy within this zone. But the Court may also reduce the margin of appreciation to nil, as when it declares that a right imposes a minimal core of protection that no public policy interest can override. If it finds that a general measure, such as a statute, is the source of a violation, then the state will be subject to repeated petitions, findings of violation, and enhanced supervision until it changes its law. It is well understood that the ECTHR deploys two incompatible versions of the margin of appreciation doctrine, in Letsas’ terminology,43 (i) a “substantive” (p. 176) and (ii) a “structural” version. In the first—which is far and away the dominant form—the Court uses PA to delineate the margin of appreciation. In Von Hannover No. 2 (2012), expressing the standard (substantive) formulation, the Court stipulated that: [T]he Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary … However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the [Convention].44

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Global Constitutionalism and Transnational Governance Thus, the substantive margin of appreciation functions as the transnational analogue of the domestic zone of proportionality (Chapter 5), and the latter can never be dissociated from the former in the multi-level European regime. The substantive version is decidedly not a formal deference doctrine: it does not render a legal dispute about rights non-justiciable; and it does not screen domestic acts from judicial review by the ECTHR under PA. Indeed, because the substantive margin of appreciation is itself a product of proportionality analysis, the margin of appreciation concept adds nothing of interest to what actually takes place—PA—when qualified rights are adjudicated.45 In contrast, the “structural” version of the margin facilitates a deference posture that the Court hides behind for prudential reasons, albeit only infrequently.46 It has been subjected to enormous criticism, insofar as the Court appears to invoke it in an arbitrary, ad hoc manner in highly sensitive cases.47 Looking forward, no other regional human rights court has followed the European Court in invoking a structural version of the margin of appreciation. When the Court is in its normal, “substantive” review mode, PA accommodates what we will call “consensus analysis,” which involves a comparative (p.177) assessment of the extent to which, and how, different member states have chosen to restrict rights under the limitation clauses of Articles 8–11. Now fully institutionalized, petitioners, the respondent state, and third parties (nongovernmental organizations and states filing as amici) collect and report evidence of state practice to the Court, and the Court’s staff undertakes its own investigations. This evidence can take the form of: (i) a count of member states that restrict, or no longer limit, a right in a particular way; (ii) a survey of relevant national legislation, case law, and criminal and administrative norms and practices; (iii) the positions taken by organs of the Council of Europe and the EU; and (iv) relevant global treaties to which states are parties. The Court will typically raise the standard of protection once a sufficient number of states have withdrawn public interest justifications for restricting a right, or committed to higher forms of protection in other ways. Whenever the Court raises the minimal obligatory standard, it puts the laggard states out of compliance. Nonetheless, the Court and its supporters can claim that gauging state consensus—which measures the extent to which states can be considered to have accorded “tacit consent”48 to raising standards of protection—provides an objective and transnational perspective on the process of “weighing” the values to be “balanced” in any dispute. In our view, the bias towards raising standards over time is defensible in that it is majoritarian, transnational, and rights protective. The Court’s methods for testing necessity rest on two strong presumptions. The first inheres in the proportionality principle itself: state officials should never be permitted to restrict a Convention right more than is necessary for them to achieve a significant public policy purpose. The second presumption animates “consensus analysis.” If most states in the regime can fulfill a pressing social Page 14 of 38

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Global Constitutionalism and Transnational Governance need without restricting the right so much, or at all, how can it be necessary for the outlier-laggards to do so? The presumption is rebuttable, of course, on a showing of extraordinary facts or crisis. The key point is that consensus analysis enables the Court to pursue a strategy of majoritarian activism, which is, in turn, a fundamental mechanism for overcoming rights minimalism. Consensus analysis has its evident instrumental advantages, but it is also compatible with reasoning and principled policy assessment in that it focuses the Court on how moral questions involving rights have been resolved within the domestic orders it supervises. PA underwrites majoritarian activism, enabling the court to transcend rights minimalism in a wide range of domains covered by each of the qualified rights. The Court has aggressively sought to dismantle discriminatory treatment of gay, lesbian, and transgender people, for example, and to remove (p.178) restrictions placed on freedom of expression and rights to assembly based on local considerations of public security and morality.49 Consensus analysis has its limits, however. In domains in which the Court has received few cases, and where state regulation of the rights widely diverges within the regime—freedom of religion being a prime example—the Court has maintained a cautious posture.50 In rare but controversial rulings (e.g., involving restrictions on access to abortions), the Court has found strong consensus for raising standards without finding a violation. As noted, in some of these cases, the Court deploys a “structural” version of the margin of appreciation, which has exposed it to strong criticism.51 Such deference is incompatible with the view that rights constitute positive requirements of legality, and with the basic precepts of proportionality (Chapter 2). Over the past decade, the notion of “dialogue” between the ECTHR and national courts—with PA providing the analytical vocabulary—has been institutionalized as a quasi-official mechanism of intra-regime coordination.52 In a long list of important cases, the Court has strongly supported domestic courts when their rulings had been ignored by executives and parliaments.53 Yet, there are also politically explosive instances in which the Court disagrees with how a constitutional court has balanced the interests at stake,54 leading to a finding of violation and a subsequent corrective revision process.55 In sum, enforcing the proportionality principle is at the core of transnational governance in Europe, and is the basic tool for raising standards and building systemic effectiveness. The Inter-American Convention on Human Rights

From the beginning, the Inter-American Court has followed paths first cleared by the ECTHR. Mimicking Strasbourg, the IACTHR characterizes (p.179) the Convention as a “living instrument,” which evolves, but only progressively, in a rights-protecting direction. The Court systematically engages the ECTHR’s Page 15 of 38

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Global Constitutionalism and Transnational Governance jurisprudence, which it treats as a quasi-authoritative foundation for its own efforts at constructing a “universalistic” and “integrationist” approach to human rights. It insists on the erga omnes effects of its case law; indeed, it has pushed further down the path of “constitutionalization” than has its European counterpart. The IACTHR has stressed the formal primacy of the American Convention with respect to national law, asserted its own bona fides as a transnational constitutional court, and has refused to develop a deferential, “structural” version of the margin of appreciation. For much of its existence, the most serious violations of fundamental rights have dominated the Inter-American Court’s docket: those of an “absolute” (or quasiabsolute) nature for which the application of PA is inappropriate. In Europe, such cases—involving the prohibition of torture and inhuman treatment, incarceration without due process, state sponsored killings and “disappearances,” and access to justice, for example—have emanated largely (but not only) from post-Communist states struggling to achieve minimal standards of rights-based constitutional democracy and rule of law. The Strasbourg Court, aided by the Committee of Ministers, has devoted enormous resources in an effort to help national officials confront such failures. In its first decades of existence, the Inter-American Court confronted a long series of complaints, brought against the regime’s largest and most powerful states, involving state-sponsored torture, executions, and disappearances, coupled with systematic failures on the part of domestic authorities, including prosecutors and judges, to hold perpetrators accountable. This experience has decisively contributed to the IACTHR’s refusal to afford states a deferential margin of appreciation, a posture it extended to the adjudication of the qualified rights. Instead, the Court accords respect to those domestic courts that demonstrate that they can be trusted to protect Convention rights in good faith.56 In its rulings, the IACTHR has self-consciously sought to teach an “aggressive”57 form of PA to domestic judges, which they are required to use when they adjudicate limitation clauses. The strategy implies that the Court is likely to afford some measure of de facto deference to those national judges when they demonstrate that they are able to adjudicate the qualified rights in good faith and with respect for its case law. The American Convention enumerates a long list of rights that are qualified by a diverse set of such clauses. A formulation that first appears in Article 12 (freedom of conscience and religion) is the basis of slight variations limiting (p. 180) thought and expression (Art. 13), freedom of assembly (Art. 15), association (Art. 16), and freedom of movement (Art. 23): Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.

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Global Constitutionalism and Transnational Governance The right to equal protection (Art. 24) contains no limitation clause: All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law. Article 13 declares the right to privacy, which states may not interfere with in an “abusive or arbitrary” manner. Despite this structural difference between the equality and privacy provisions, the Court applies a standard form of PA to both. The IACTHR gave priority to proportionality in its first advisory opinion concerning a qualified right (1985),58 asserting that the ECTHR’s approach to freedom of expression was “equally applicable” to the American Convention. It did not receive its first cases in the area, however, until the 2000s. In HerreraUlloa v. Costa Rica (2004),59 the Court discussed and then applied “la jurisprudence constant” [the settled case law] of the ECTHR on press freedoms, holding that the government had failed to demonstrate a “pressing social need” to use criminal sanctions against journalists in order to protect a public official’s honor and reputation. It did so on the basis of reasons set out in rulings of the ECTHR. In Kimel v. Argentina (2008), the Court made it clear that disputes in which freedom of the press comes into conflict with the “right to have one’s honor respected”60 must be settled through PA, this time more confidently citing to its own jurisprudence, including to the Herrera-Ulloa decision. One year later, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights would summarize the regime’s approach to balancing in terms that echo the accounts of Alexy and Barak (and citing to Kimel): [I]n order to establish the proportionality of a restriction when freedom of expression is limited for purposes of preserving other rights, three factors must be examined: (i) the degree to which the competing right is affected (serious, intermediate, moderate); (ii) the importance of satisfying the competing right; and (iii) whether the satisfaction of the competing right justifies the restriction to freedom of expression. There are no a priori answers or formulas of general application in this field. The results of the analysis will vary in each case; in some cases, freedom of expression will prevail, and in others the competing right will prevail. (p.181) And in Tristan Donoso v. Panama (2009), the Court extended the coverage of PA to the right to privacy and, impliedly, to any other qualified right: The right to privacy is not an absolute one, and, so, it may be restricted by the States provided that their interference is not abusive or arbitrary; accordingly, such restriction must be statutorily enacted, serve a legitimate purpose, and meet the requirements of suitability, necessity, and proportionality which render it necessary in a democratic society.61

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Global Constitutionalism and Transnational Governance The formulation echoes the “canonical version”62 of PA developed by the ECTHR. As in Europe, the adoption of proportionality has provoked a process of deep structural transformation. In the Inter-American regime, only the Colombian Constitutional Court and the Mexican Supreme Court had developed PA on their own. Today, all high court judges in the regime know that they are required to use PA—as the IACTHR does—when they adjudicate the Convention’s qualified rights. Not only have the IACTHR organs made this obligation clear, they have taken pains to document, and to comment upon, the enforcement of the proportionality principle in domestic jurisdictions. In the area of freedom of expression, the consolidation of the primacy of PA can be tracked through the recurrent reports of the Commission’s Special Rapporteur. While the first report, of 2002, did not mention proportionality at all, the 2009, 2012, and 2016 editions document how national apex courts deploy PA and cite to the IACTHR’s case law. The high courts of Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, Panama, Peru, and Uruguay, for example,63 have been praised for explicitly adopting the Court’s three-part proportionality test.64 In the IACTHR, as in the European regime, domestic apex courts are required to apply PA when they adjudicate qualified rights; when the latter comply, they engage in a form of doctrinal incorporation. State officials may also incorporate the Convention and accompanying case law directly through interpretation of the constitutional rules governing the relationship between treaty law and national law. In contrast to the European situation, no systematic, comparative scholarship on incorporation of the American Convention, and its impact on law and politics, yet exists. As a formal matter, some (p.182) constitutions (either explicitly or by way of judicial interpretation) bestow the Convention a rank above statute in the domestic hierarchy of norms (including Brazil, Ecuador, El Salvador, Guatemala, Haiti, Honduras, and Nicaragua). Others confer on the Convention (and other forms of treaty law) a “constitutional” rank (Argentina, Chile, Colombia, the Dominican Republic, Mexico, Panama, Paraguay, Peru, Uruguay), and even “supra-constitutional” status (Bolivia and Costa Rica). As in Europe, the crucial factor for building systemic effectiveness is the willingness, on the part of national apex courts, to enforce the Convention and the IACTHR’s case law at a rank above statute. While the present situation appears a bit of a patchwork, some of the regime’s most important national courts (including in Argentina, Colombia, Mexico, Panama, and Peru) have strongly incorporated the Convention into their own charters of rights.65 Unlike the ECTHR, the IACTHR does not consider the consensus of the regime’s member states as a substantial factor in determining whether to raise regime standards. The Court, scholars agree, views the relevant practices in most of the states to be a hindrance to effective rights protection, rather than as guidance for raising standards. It does, however, engage in an analogous form of Page 18 of 38

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Global Constitutionalism and Transnational Governance consensus analysis, but on a wider, global scale. As noted, the Court systematically engages relevant ECTHR rulings, often using the findings of the European Court as dispositive with respect to foundational questions concerning the scope and content of qualified rights. It routinely invokes the jurisprudence of the UN Human Rights Committee, adopting the latter’s legal definitions and findings as authoritative in cases before it. And the Inter-American Court regularly surveys the rulings of the most important constitutional courts in the world as evidence that directly bears on the question of whether there exists a global consensus on the scope and application of the right in question. The Court’s strategy of legitimation—the deployment of selective “external referencing” to raise standards—depends crucially on PA. In virtually all of the important rulings on qualified rights decided since (p.183) the late-2000s, the Court insists on the proper use of proportionality because external jurisdictions do; and it takes pains to harmonize its approach with those of judges from around the world. It is important to stress that the Court gives precedence to materials that support raising standards: (i) rights-protecting landmarks of the ECTHR; (ii) the soft law and treaty instruments produced by other international organizations working to raise standards; and (iii) the jurisprudence from higher-standard domestic trustee courts. The IACTHR will also positively reference the rulings of apex courts of the regime’s member states—in particular, of the Colombian Constitutional Court—when they support its own preferred positions. Two recent landmark cases are illustrative. Riffo v. Chile (2012)66 involved a custody battle between divorced parents, which the Chilean courts settled in favor of the father, given that the mother had entered into a lesbian relationship. Two lower courts had accepted as fact, in findings that the Chilean Constitutional Court did not subject to serious scrutiny, that homosexual relationships were not “normal,” posed “risks” to childhood development, and exposed the children to social “ostracism and discrimination,” as well as to sexually transmitted diseases.67 In a long and complex ruling, the IACTHR declared that “the principle of equality and non-discrimination had entered the realm of jus cogens,” thereby producing positive duties of protection, including for sexual orientation.68 The Court based much of its analysis on the jurisprudence of the ECTHR and UN HRC.69 The Court also addressed rights to privacy and family, holding that sexual orientation is covered by both, and declaring Chile to be in violation of the Convention on proportionality grounds.70 In Murillo v. Costa Rica (2012),71 the IACTHR confronted a decision of the Constitutional Chamber of Costa Rica’s Supreme Court, which had overturned an executive decree permitting in vitro fertilization on right to life (p.184) grounds. The Constitutional Chamber, considering the right to life of embryos to be of an absolute nature, had determined that freezing fertilized eggs for future use would expose embryonic life to unacceptable risks. The IACTHR disagreed, declaring that the right to life applied only once an ovum had been implanted in Page 19 of 38

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Global Constitutionalism and Transnational Governance the woman’s uterus. As important, the Court stressed that PA—as informed by the analysis of “comparative constitutional law”—would determine the “adequate” balance between a woman’s rights to reproductive freedom and the right to life of the implanted embryo.72 It then marched through the subtests of proportionality, discussing how the ECTHR, the CJEU, the German Federal Constitutional Court, the Spanish Constitutional Tribunal, the U.S. Supreme Court, and the high courts of Argentina, Colombia, and Mexico had balanced, along the way. In the end, the IACTHR found that the prohibition of in vitro fertilization failed the proportionality subtests. Moving to issues of indirect discrimination, it found that the Chamber’s decision would disproportionality impact women, the disabled, and the poor.73 In Riffo, the Court had pointedly refused to consider the absence of regime consensus as a constraint on its decision making: With regard to [Chile’s] argument that, on the date on which the Supreme Court issued its ruling there was a lack of consensus regarding sexual orientation as a prohibited category for discrimination, the Court points out that the alleged lack of consensus in some countries regarding full respect for the rights of sexual minorities cannot be considered a valid argument to deny or restrict their human rights or to perpetuate and reproduce the historical and structural discrimination that these minorities have suffered. The fact that this is a controversial issue in some sectors and countries, and that it is not necessarily a matter of consensus, cannot lead this Court to abstain from issuing a decision.74 In contrast, in Murillo, the Court found that regional consensus supported its key determinations: [E]ven though there are few specific legal regulations on IVF, most of the States of the region allow IVF to be practiced within their territory … The Court considers that this practice by the States is related to the way in which they interpret the scope of [the right to life], because none of the said States has considered that the protection of the embryo should be so great that it does not permit assisted reproduction techniques and, in particular, IVF. Thus, this generalized practice is associated with the principle of gradual and incremental – rather than absolute – protection of prenatal life and with the conclusion that the embryo cannot be understood [to be] a person.75 (p.185) In neither ruling does the margin of appreciation feature. Indeed, in Murillo, the Court bluntly stated that it “does not consider it pertinent to rule on the State’s argument that it has a margin of appreciation to establish prohibitions such as the one established by the Constitutional Chamber.”76

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Global Constitutionalism and Transnational Governance Unlike the ECTHR, the Inter-American Court is competent to render advisory opinions, and it has exploited that power to underscore its position as the regime’s trustee. In November 2017, the Court issued an important advisory ruling on a reference from Costa Rica, which asked the Court to establish guidelines for the development of legal arrangements capable of adequately protecting the rights of transgender persons and same sex couples, given its ruling in Riffo. In response, the Court produced detailed prescriptions for legislative, administrative, and judicial reform. Again, the Court heavily relied on the jurisprudence of the ECTHR and the UN HRC, surveyed the rulings of the region’s apex courts with which it approved, and required the use of PA to evaluate the legality of differences in treatment. In this opinion, and many other recent rulings, the Court’s tenor is one of a full-fledged, transnational constitutional court that commands the obedience of domestic officials. As the Court put it in preliminary remarks, the thrust of which is reiterated throughout the decision: The Court … finds it necessary to recall that … this treaty is binding for all its organs, including the Judiciary and the Legislature, so that a violation by any of these organs gives rise to the international responsibility of the State. Accordingly, the Court considers that [state authorities] must carry out the corresponding conventionality control, which must be based also on the considerations of the Court in the exercise of its non-contentious or advisory jurisdiction.77 While firmly entrenched in the Court, the “doctrine of conventionality”—which demands an exceptionally high degree of incorporation—remains controversial, and is not fully supported by all members.78 The African Conventions

In Africa, a minority of states have opted in to regional human rights regimes and, outside of South Africa, few systems of justice are well established on the domestic level. The extant literature on proportionality, incorporation, the (p. 186) impact of regional courts on national law and politics is scant or nonexistent for virtually every African state. This point made, the courts of the African Union, the East African Community, and the ECOWAS have steadfastly refused to adopt a “structural,” deferential margin of appreciation doctrine. Each insists that their important rulings produce binding, erga omnes effects; and each adopted proportionality during the 2013 to 2018 period. The African Charter on Human and Peoples’ Rights contains a general limitation clause, Article 27.2, stating: “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.” Most rights are also subject to an additional form of qualification. Some are to be exercised “within” (freedom of expression) or “in accordance with” (right to property) the law; others are “subject” to the Page 21 of 38

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Global Constitutionalism and Transnational Governance requirements of “law and order” (freedom of conscience and religion), or “necessary restrictions”—such as those “enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others” (freedom of association). These differences do not affect how the ACTHPR approaches qualified rights. Instead the Court holds that Article 27.2 authoritatively limits all qualified rights, to the exclusion of every other limitation clause, and that it contains an implied proportionality requirement.79 The ACTHPR adopted proportionality in its first ruling on the merits, Tanganyika Law Society v. Tanzania (2013).80 The case involved a challenge to the compatibility with the Charter of an amendment to the Tanzanian constitution prohibiting independent candidates from competing in elections. Tanzania agreed that the prohibition restricted the freedom of association and expression, and the right to participate freely in the government (Art. 13); but it claimed that these constraints were “necessary” for reasons of “good governance and unity”—not least to avoid “tribalism”—and thus contributed to “national security, defense, public order, public peace and morality.”81 The Court responded by asserting that existing “jurisprudence” meant that, once the applicant “has established that there is a prima facie violation of a [charter] right,” the state bore the burden of demonstrating that the restriction (i) was covered by Article 27.2, (ii) was “effected through a ‘law of general application,’” and (iii) was “proportionate with and absolutely necessary for the advantages which are to be obtained.”82 In support, it cited to decisions of the African Commission, the ECTHR, and the IACTHR.83 After applying each of these subtests, the unanimous Court found for the applicants, and it (p.187) ordered Tanzania “to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.”84 The Court’s choice of remedy in Tanganyika raised the linked issues of primacy, compliance, and incorporation. The Tanzanian government retorted with a declaration to the effect that the case was incorrectly decided, “wrong because it [ran] contrary to prevailing [domestic] law.”85 Officials have refused to comply. The fact that only 8 of the African Union’s 55 members have accepted the Court’s compulsory jurisdiction limits its leverage and means that noncompliance carries little stigma. Yet the Court has not backed down. It reiterated its commitment to robust enforcement of the proportionality principle in two subsequent rulings,86 while insisting that it would interpret the Charter in light of the human rights standards established in the jurisprudence of the ECTHR, the IACTHR, and the UN Human Rights Committee.87 In the most recent of these cases, Umuhoza v. Rwanda (2017), Rwanda pleaded a “structural” version of the margin of appreciation doctrine, which it claimed was required by the principle of subsidiarity. While the Court touched on subsidiarity

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Global Constitutionalism and Transnational Governance considerations with regard to legitimate purpose,88 it justified the move to fullfledged PA in these terms: [T]he laws in question should not be applied … in a manner that disregards international human rights standards. The legitimate exercise of rights and freedoms … is as important as the existence and proper application of such laws, and is of paramount significance to … the purposes of maintaining national security and public order. ln all circumstances, it is important that restrictions made on the fundamental rights and freedoms of citizens are warranted by the particular contexts of each case and the nature of the acts that are alleged to have necessitated such restrictions.89 The ACTHPR has embraced PA, as a tool for building systemic effectiveness, in a regime that remains fragile and largely ineffective. The East African Court of Justice (EACJ) invented itself as a trustee of a transnational system of justice in a series of rulings rendered since 2007. As noted, the treaty establishing the East African Community does not contain a justiciable charter of rights; instead, signatory states promised to adopt a charter in a subsequent protocol. The Court nonetheless incorporated (p.188) international human rights into the treaty, as a set of general principles, through broadly interpreting two provisions of the EAC treaty: Art. 6: The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include … good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. Art. 7.2: The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights. From these principles the EACJ90 has derived (i) its own authority to enforce rights, as law binding on the member states,91 (ii) the direct applicability of these principles in national legal orders (that is, the rights and principles may be pleaded before national judges who possess the authority to interpret and enforce them),92 and (iii) the erga omnes authority of its interpretations.93 These moves entail potentially momentous consequences. The Court, after all, does not require petitioners to exhaust local remedies; and the treaty contains a supremacy clause.94 At a minimum, these elements will combine to make the EACJ the de facto court of first instance for many important disputes,95 while stimulating the use of international human rights law in public interest Page 23 of 38

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Global Constitutionalism and Transnational Governance litigation.96 Meanwhile, the Court has ruled that the failure of the member states to confer upon it human rights jurisdiction, through the promised protocol, violated the principles of “good governance” and the “rule of law” enshrined in Art. 6 EAC.97 Indeed, the Court has ordered the East African Community to “conclude the protocol” quickly, a command the Community has thus far ignored.98 As the ECTHR, the IACTHR, and the ACTHPR had done earlier, the EACJ first developed PA to adjudicate disputes involving freedom of expression and the press. The first case, Burundian Journalists’ Union v. Burundi (2015),99 concerned a 2003 Press Law that required journalists to be accredited by the (p.189) state, to reveal their sources when asked, and to restrict content in line with government priorities, under pain of punishment through the criminal law. After discussing the importance of free speech and a free press to Article 6 EAC (the principles of democracy, accountability, and transparency), the Court raised the question of how to adjudicate them: The Treaty gives no pointer in answer to this question but by reference to other courts, it has generally been held that the tests of reasonability and rationality as well as proportionality are some of the tests to be used to determine whether a law meets the muster of a higher law. In saying so, it is of course beyond peradventure to state that Partner States … are obligated to enact National Laws to give effect to the Treaty and to that extent, the Treaty is superior law.100 With little justification, the Court announced that it would apply the proportionality framework developed by the Canadian Supreme Court (citing to Oakes and Big Mart; see Chapter 3),101 finding the Press Law to be a disproportionate limitation of the rights of journalists and readers. In a second case, Mseto v. Tanzania (2018), the managing editor of a newspaper (and an opposition member of parliament) challenged an order issued by the Tanzanian Minister of Information “to cease publication … for a period of three years,” having been accused of publishing “false” and defamatory news about the country’s president.102 In response, the government explicitly invoked the proportionality of the measure, claiming that it was necessary for the maintenance of “peace and good order.”103 The EACJ, building on Burundian Journalists’ Union, found a violation on proportionality grounds.104 Yet the significance of the ruling goes deeper, providing perspective on how the Court sees its (potential) role as transnational trustee in a multi-level system of governance. Most important, the Court stressed the “contextually similar” limitation clauses found in the African Charter, the International Covenant on Civil and Political Rights (ICCPR), the ECHR, and the Tanzanian Constitution.105 After applying PA, it declared the Minister’s order to have violated the charter of rights in the Tanzanian Constitution, in addition to the ICCPR and the African Page 24 of 38

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Global Constitutionalism and Transnational Governance Charter, thereby breaching the principles of good governance, the rule of law, social justice, accountability, and transparency (Art. 6 EAC). The Court then addressed the Minister himself, demanding that he “annul the order forthwith and allow the Applicant to resume publication of Mseto.”106 The Minister has, to date, refused to comply. (p.190) In Tanzania, which hosts the EACJ, the judiciary has begun to integrate the Court’s jurisprudence. In a 2018 ruling hailed as a “landmark” in legal circles,107 Tanzania’s Supreme Court (Court of Appeal) struck down parts of the Criminal Procedure Act concerning bail procedures as disproportionate, while announcing several “principles governing constitutional interpretation.” The Court declared that the “Constitution is a living instrument having a soul and conscience of its own, and that the provisions of the Constitution touching fundamental rights have to be interpreted in a broad and liberal manner.” The ECOWAS Court was the last to adopt proportionality, in 2018. The type of cases that dominated its rights-based docket in its formative years may provide part of the explanation. The Court considered claims involving slavery,108 torture,109 basic primary education for children,110 the abduction and rape of women by police and military,111 and the “unlawful deprivation” of life,112 to involve absolute, not qualified, rights.113 Nonetheless, NGOs regularly plead proportionality in amici briefs114; and state representatives to ECOWAS themselves produced a draft Uniform Legal Framework on Freedom of Expression and Right to Information in West Africa (2010) that expressly integrated proportionality.115 The Court finally turned to proportionality in The Federation of African Journalists v. The Gambia (2018).116 The case concerns the use of sedition and criminal libel statutes to fine and imprison journalists who had published articles criticizing the president and ruling party of the Gambia; some of the journalists were tortured. After invoking the jurisprudence of the UN HRC, the IACTHR, the ECTHR, the African Union Court, and domestic courts on three continents, the Court announced that: Having critically examined the criminal laws of the Gambia, the Court declares that the criminal sanctions imposed on the applicants are disproportionate and not necessary in a democratic society … It is our view that the impugned provisions cast excessive burden upon the applicants in particular and all those who would exercise their right of free speech and violates [sic] the enshrined rights to (p.191) freedom of speech and expression under Article 9 of the African Charter, Articles [sic] 19 of the ICCPR and Article 19 of the UDHR. The Court then ordered the Gambia to revise its laws, in order to “decriminalize” journalism.117 Since the ECOWAS Court, too, “faces an ongoing challenge of

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Global Constitutionalism and Transnational Governance securing compliance with its judgments,”118 the required reforms may not be forthcoming. In sum, all of the African courts have aggressively asserted their status as trustee of the human rights regimes they manage. Each has committed to an integrationist jurisprudence of rights protection. And each has adopted proportionality to review the lawfulness of state measures, and to provide guidance for domestic reform. The African courts are, nonetheless, hampered by the lack of political will on the part of domestic officials, including judges, to comply with important rulings, and to incorporate the regime’s law into national orders.

III The Structure of Global Constitutionalism Throughout the book, we have emphasized that no two systems of constitutional justice are identical, and that there exists significant variation in how trustee courts protect rights and deploy PA. Our discussion here will highlight commonalities: elements of the global constitution that are made visible at a higher level of abstraction. We are also aware that many will find these claims controversial, on the basis of good reasons that have been explicated well elsewhere.119 Most important, those who firmly object to the extension of the concept of a “constitution” to the international realm, or to a pluralist context, will not accept the conclusions that follow. That point made, our arguments are rooted in actual practice—how the most important courts in the world adjudicate rights and interact with one another—not on assumptions or a priori theorizing divorced from practice. At the very least, how courts actually protect rights requires rethinking “the constitutional,” conceptually and normatively, to include the importance of transnational processes of borrowing and external referencing. Proportionality became a principle of global constitutional law on the basis of such processes; and, today, virtually no court in the world deploys PA without also surveying how other prominent courts have done so in similar cases. (p.192) Charters of Rights

Modern charters of rights resemble one another in important ways. They list a small number of absolute rights, including the prohibition of torture, inhumane treatment, slavery, and access to justice; and they contain a longer list of rights qualified by one or more limitation clauses. Similarities in form are not surprising, given that the founders of new constitutions typically modelled charters of rights on existing international conventions and domestic bills of rights (Chapter 1). Constitutional doctrine, too, has converged on a number of foundational points, as trustee courts copy the approaches of their peers that are considered to be successful (Chapters 3, 5). No explanatory account of modern constitutional law can ignore the important role of mechanisms of isomorphism in generating such outcomes (Chapter 1). Trustee courts have mimicked one another, for example, in treating modern charters as “living Page 26 of 38

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Global Constitutionalism and Transnational Governance instruments”—which is perfectly compatible with American-style “originalism”120—and in using PA to adapt rights to ever-evolving circumstances. As we have seen, regional human rights regimes, too, enforce charters as “higher law,” while asserting the binding effects of their own jurisprudence on the domestic officials they supervise. As incorporation proceeds, international human rights instruments have been integrated into the “secondary rules” that comprise the domestic constitutional law (Chapters 1 and 2). While a national charter of rights and the “international bill of rights” are distinguishable on a number of important dimensions, they also perform some broadly similar functions, as secondary rules. As Stephen Gardbaum puts it, the “international human rights system has become one of constitutional law in its own right,” not least, in that “the legal status of the protected rights has become similar within each system”: [R]egardless of the precise legal status of the protected rights vis-à-vis other types of international law, the human rights system itself can properly be characterized as a constitutionalized regime of international law … This perhaps parallels the domestic situation in which enactment of a bill of rights may be said to constitutionalize a system of public law … and parallels the domestic situation in which a bill of rights constitutionalizes a legal system as a whole.121 Gardbaum also recognizes the importance of international and regional conventions as supplementary to, or substitutes for, national systems of justice, (p.193) upon incorporation. The most influential national and transnational courts share a common approach to rights, as positive requirements of constitutional legality, binding on all public officials. This approach to rights—as the ultimate secondary rules that ground systemic legitimacy—is underwritten by the commitment to enforcing the proportionality principle. It is a blunt empirical fact that domestic-constitutional and treaty-based charters are increasingly embedded in one another. Many powerful national apex courts enforce international human rights directly, or interpret their own charters in light of the jurisprudence of international bodies, in particular, the ECTHR and the IACTHR. For their parts, the European, Inter-American, and African courts routinely survey the relevant case law of influential domestic courts, which they treat as important findings of fact, and often, applicable law. The IACTHR and the African courts, in particular, see themselves as enforcing a global constitution made up of multiple sources of (overlapping) law, both international and domestic. On the basis of such evidence, some scholars, including Mattias Kumm122 and Stone Sweet,123 assert the existence of a global constitution and a rights-based commons, which comprises shared normative structures (e.g., rights provisions) and practices (e.g., proportionality). Important to the argument is that judges increasingly behave as if a multi-level, rights-based Page 27 of 38

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Global Constitutionalism and Transnational Governance constitution—constituted by multiple sources of law—exists. Judges on the world’s most powerful domestic courts are aware that they owe duties to the stakeholders and values of a greater regional and global system of rights protection. And transnational rights courts are squarely in the business of identifying, and seeking to remedy, failures in national protection. Constitutional Pluralism

Constitutional pluralism124 is a structural property of a multi-level system of rights protection that is produced when two situations are combined. The first is “source pluralism.” Within a domestic constitutional order, the term describes a situation in which two or more autonomous sources of judicially enforceable rights co-exist. In many systems, national and international charters of rights overlap. Typically, when international instruments are incorporated into the domestic order, individuals will have a choice of which charter to plead, and judges may have a choice of which to enforce. Many enforce both, as if the national constitution and the treaty were meant to evolve in synergy. These choices have consequences, as when national judges prefer to apply international rights, as interpreted by an international court, as a means (p. 194) of raising standards of protection.125 The second is “jurisdictional pluralism.” The fact that treaty-based charters map onto domestic rights undergirds the notion of a multi-level, transnational constitutionalism. The structure of authority within this regime is pluralistic: the “system” is composed of discrete hierarchies, national and treaty-based, each of which asserts its own autonomy and legitimacy to enforce rights on the basis of specific legal instruments. As we have seen, the European and Inter-American systems mix strong doses of both types of pluralism, a situation that the African courts appear to be eager to construct. Regional human rights courts are fully aware that their effectiveness depends critically on the extent of domestic incorporation and recognition of the authority of their jurisprudence. Put differently, the development of constitutional pluralism is a necessary condition for building the effectiveness of a transnational rights-protecting regime. A multi-level system of justice—wherein rights are enforced by multiple independent courts—will count as a good insofar as the dynamics of constitutional pluralism serve to raise standards of protection, and to fill domestic gaps in protection. Within the ECHR and the American Convention, interactions among courts—both cooperative and competitive—have rendered systems of justice more effective at both the national and transnational levels. Constitutional pluralism organizes ongoing inter-judicial dialogues around the content, scope, and application of rights. In a system characterized by constitutional pluralism, by definition, no court has the “final word” as to how any right provision is to be interpreted and enforced. At the same time, no court in the system is alone when it protects rights. Today courts routinely reference Page 28 of 38

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Global Constitutionalism and Transnational Governance one another, across borders and levels, in order to bolster the legitimacy of moves to raise standards. In the last two decades, the creation of a global, rights-based judicial commons has not only raised standards of protection, but reduced the “fragmentation” of international human rights law, as courts at both levels participate in the development of shared norms, standards, and practices.126 Proportionality and Effectiveness

This book documents the diffusion and institutionalization of proportionality as a general principle of constitutional governance, the reach of which is global. The outcome is a result of a cascade of discrete decisions made by judges operating in vastly different contexts, followed by the support (or at (p.195) least, the acquiescence) of elected officials. Pioneering courts (in Germany, Canada, the European Union, and the ECHR) enshrined the principle without comment, as if its existence could be taken for granted. Courts that followed cited to their firstwave predecessors, and to one another, as to the existence and appropriateness of the principle. Today, PA is a centerpiece of constitutional adjudication in virtually every jurisdiction that has made progress in building systemic effectiveness. Throughout the book, we have discussed the advantages of adopting PA, and will not rehearse those arguments here, beyond making the following summary points. Adopting PA helps judges construct and maintain institutional arrangements that make effective constitutional governance possible. First, PA is a mechanism for rendering qualified rights—which are textually open-ended— more determinate and, therefore, capable of being enforced in a principled way. Put differently, PA “fits” the structure of qualified rights, once a court is tasked with determining how, and under what conditions, officials may legitimately limit the scope of a right. Second, PA underwrites a distinctive juridical theory of rights: as positive constitutional requirements of legality, binding on all officials (Chapter 2). This theory presupposes that a trustee court has a duty to enhance the effectiveness of rights provisions. Third, the consistent use of proportionality will routinely generate a stable dialogic interface between trustee courts and the officials they supervise (Chapter 5, 6). A central mission of a trustee court, domestic or transnational, is to delineate the boundaries of the zone of proportionality within which all other lawmakers may freely exercise their policy discretion. Judges cannot do so without generating constitutional guidelines binding on policy makers (Chapters 2, 5). Fourth, and intimately related to the building of effectiveness, formal deference doctrines have no place in a proportionality-based system of constitutional governance. Such doctrines— including the “systemic” version of margin of appreciation, and doctrines of nonjusticiability—are simply incompatible with the theory of rights and trusteeship that undergird modern system of justice. A court may well seek postures of deference in controversial cases, perhaps even to guarantee the viability of fragile systems of justice going forward. In fact, courts can and do build de facto Page 29 of 38

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Global Constitutionalism and Transnational Governance deference into PA in myriad ways. But a court that institutionalizes formal deference doctrines that render judicial review ineffective not only abdicates its duties, it becomes complicit in undermining rights commitments.

Conclusion In conclusion, national and transnational trustee courts, through their efforts to enhance the effectiveness of their own systems of rights protection, have consolidated a rights-based constitution of global scope. This constitution (p. 196) possesses a relatively stable structure, comprising three main components. The first concerns the substantive content of the global constitution: rights. Charters of rights at both the national and international levels resemble one another in form; they perform similar functions; and they overlap and mutually reinforce one another, not least, in formal doctrinal terms. Second, the constitution is enforced by a global polyarchy of courts, in contrast to a hierarchically organized, domestic system of justice that is managed by an apex trustee court. Taken together, this legal system can be characterized as constitutional, multi-level, and pluralist. The third component is the commitment to enforcing the proportionality principle, as a general principle of law that inheres in modern charters of rights. Embracing PA, this book shows, is the single most important move any trustee court can make, if it takes seriously a duty to enhance effective rights protection. Moreover, consistent use of PA will build a common doctrinal interface for cross-jurisdictional dialogues among judges, and inter-branch dialogues between domestic courts and the policymakers they supervise. Insofar as it does so, PA will help to constitute and sustain constitutional governance. Notes:

(1) Walker (2008); Dunoff and Trachtman (2009); Stone Sweet (2009). (2) Stone Sweet and Brunell (2013). (3) The first international trustee court in global history—now called the Court of Justice of the European Union—dates only from the 1950s. As Alter (2012; 2014) has documented, compulsory jurisdiction enabling the judicial review of state measures by international courts has since become widespread. (4) The “principal” in international regimes is a composite of all contracting states, not a unified entity. A composite principal comprising multiple states whose leadership will change periodically (e.g., through elections) is unlikely to possess stable policy preferences over time, further weakening the threat of override. (5) Art. 38(1)(c) of the Statute of the International Court of Justice lists the sources of law that the International Court of Justice, and by extension all other international courts, are under a duty to apply.

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Global Constitutionalism and Transnational Governance (6) For an extended discussion, see Stone Sweet and Della Cananea (2013: 10). (7) Von Bogdandy (2003: 10). (8) Hilf and Goettsche (2003: 9–10). (9) MacCormick (1978: 152). (10) Stone Sweet (2004: ch. 2); Stone Sweet and Brunell (2012). (11) Letsas (2013). (12) Stone Sweet and Ryan (2018: ch. 5). (13) On the IACTHR’s approach, see De Pauw (2015). (14) As Mazzuoli and Ribeiro (2016: 94) neatly put it: “The pro homine principle … sets two interpretative rules in international law. First, human rights norms must be extensively interpreted and, conversely, must be restrictively interpreted when they limit protected rights. Second, in case of doubt or conflict between different human rights norms, the most protective norm to the human person—the victim of human rights violations—must be adopted.” (15) Inter-American Court of Human Rights (2012a). (16) Shelton (2014: 117). On the importance of the pro homine principle to the management of constitutional pluralism in the ECHR, see Negishi (2017). (17) Stone Sweet and Mathews (2008: 139–59).The WTO began operations in 1995. Appellate panels of the preceding trade regime, the General Agreement on Tariffs and Trade (GATT), applied a version of proportionality in the last years of the GATT, and the Appellate Body did as well once the WTO was established. (18) Stone Sweet and Brunell (2013). (19) Stone Sweet and Grisel (2017: ch. 5); Stone Sweet and Della Cananea (2013). (20) Inter-American Court of Human Rights (2004b; 2008; 2009). (21) African Court on Human and Peoples’ Rights (2013). (22) The UN HRC monitors the compliance of state signatories of the International Covenant on Civil and Political Rights. Through the First Optional Protocol, it processes individual petitions, which it responds to in “observations,” which are now treated by courts around the world as an authoritative jurisprudence. The UN HRC routinely refers to proportionality in its jurisprudence on the qualified rights.

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Global Constitutionalism and Transnational Governance (23) Keller and Stone Sweet (2008: 13–14). (24) Stone Sweet and Ryan (2018: ch. 4). (25) European Court of Human Rights (1990: para. 35). (26) Source: Annual Reports of the Inter-American Court of Human Rights. (27) Inter-American Court of Human Rights (2004a: para. 166). (28) Dulitzky (2015: 47). (29) African Court on Human and Peoples’ Rights (2012: para. 8). (30) In addition, the Commission on Human and People’s Rights may refer cases to the Court. (31) Rule 26 of the Rules of Court, African Court on Human and Peoples’ Rights, following from Art. 7, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. (32) The source of the data is the Court’s website. (33) Alter, Helfer, McAllister (2013). (34) As described below, the Court has also used Article 7.2 as a source for its rights review power. (35) Simmons (2009); Alter (2014: ch. 2); Sandholtz (2016). (36) Including Anagnostou, ed. (2013); Bjorge (2015); Dzehtsiarou (2015); Føllesdal, Peters, and Ulfstein, eds. (2013); Greer (2006); Keller and Stone Sweet, eds. (2008); Stone Sweet and Ryan (2018: chs. 3–6). (37) This section is based on Stone Sweet and Ryan (2018: ch. 4). (38) For details, see Stone Sweet (2012b: Appendix 1). (39) This is the case for, among other states, France and the Netherlands. (40) Greer and Wildhaber (2012); Stone Sweet and Ryan (2018: ch. 5). (41) Bjorge (2015). (42) The relationship between PA, consensus analysis, and the margin of appreciation has been the subject of intensive debate; see Letsas (2013), Legg (2012) and Dzehtsiarou (2015). (43) Letsas (2006).

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Global Constitutionalism and Transnational Governance (44) European Court of Human Rights (2012a: paras. 104–05) (case citations omitted). (45) As Candia (2014: 9) puts the point: “When applying a [substantive] margin of appreciation, the ECTHR does not ignore that the test to be employed is highly intrusive. In order to ameliorate a potential conflict with the states parties, the ECTHR simultaneously invokes both the margin of appreciation and the principle of proportionality, as if they represented two faces of the same coin. Nevertheless, this use of the margin is merely rhetorical and it does not produce any normative impact on the decision ultimately reached by the Court. Therefore, the sole invocation of the margin of appreciation does not prevent the ECTHR from carefully analyzing the merits of each case and balancing the interests involved in it under no specific criteria.” (46) See the discussion of the religion and abortion cases in Stone Sweet and Ryan (2018: 184–96). (47) Føllesdal (2017) and McGoldrick (2016) review these debates and defend a deferential version of the margin of appreciation. (48) Dzehtsiarou (2015: 175–6). (49) Helfer and Voeten (2014). (50) Stone Sweet and Ryan (2018: 184–96). (51) Dzehtsiarou (2015: 30-5) has undertaken systematic analysis of all ECTHR cases featuring consensus analysis, and has conducted extensive interviews with members of the Court. While Dzehtsiarou is also critical of the Court’s inconsistent application of consensus analysis, he finds that the Court’s methodology has become more consistent over time and its comparative research more dependable. (52) The ECTHR regularly invites apex court judges and leading academics from across Europe to annual seminars on inter-judicial dialogue, and issues papers and reports on the state of dialogue in the regime. On issues involving the implementation of its case law, see the European Court of Human Rights (2014). (53) Including European Court of Human Rights (2004b; 2009; 2012a). (54) For a statistical overview and discussion of the review of domestic apex court decisions by the Grand Chamber, see Stone Sweet and Ryan (2018: 172–4). (55) For example, European Court of Human Rights (2012b) and its consequences; Stone Sweet and Ryan (2018: 198–201). (56) Tsereteli (2016: 1098–100). Page 33 of 38

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Global Constitutionalism and Transnational Governance (57) Candia (2014: 11). (58) Inter-American Court of Human Rights (1985). (59) Inter-American Court of Human Rights (2004b). (60) Inter-American Court of Human Rights (2008: para. 51). (61) Inter-American Court of Human Rights (2009: paras. 56, 76). (62) Sadurski (2016). (63) Inter-American Commission of Human Rights (2009a). (64) “As it has been interpreted in the case law of the Inter-American system, Article 13.2 of the Convention requires that the following three conditions be met in order for a limitation to freedom of expression to be admissible: (1) the limitation must have been defined in a precise and clear manner by a law, in the formal and material sense; (2) the limitation must serve compelling objectives authorized by the Convention; and (3) the limitation must be necessary in a democratic society to serve the compelling objectives pursued, strictly proportionate to the objective pursued, and appropriate to serve said compelling objective”; Inter-American Commission of Human Rights (2009b: ch. 3, para. 68). (65) In a 1996 ruling, the Supreme Court of Argentina unanimously held that the Constitution includes not only the treaties on human rights, but also the case law of international tribunals; Lorenzetti (2010). Since at least 1999, the Constitutional Court of Colombia (1999) has treated the Convention as a formal part of the Colombian Constitution, binding on the legislature; and it gives special weight to the IACTHR jurisprudence. In 2010, the Supreme Court of Mexico (2010) directed all Mexican judges to ensure that their decisions would be compatible with the American Convention, as interpreted by the IACTHR, provoking further incorporation through constitutional amendments adopted in 2011. The Panama Supreme Court has incorporated the American Convention into its own bill of rights, and has committed itself to “systematically” interpreting the latter in synergy with the former; Panama National Report (2010: para. 73). In 2007, the Constitutional Tribunal of Peru ruled that all of the judgments of the IACTHR “form part of domestic law under … the Constitution,” and are binding on all state officials. On the other side of the spectrum, the courts of the Dominican Republic and Venezuela (which denounced the Convention in 2012), are empowered to review the legality of rulings rendered by the IACTHR with respect to the national constitution. (66) Inter-American Court of Human Rights (2012b). (67) Inter-American Court of Human Rights (2012b: paras. 42–56). Page 34 of 38

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Global Constitutionalism and Transnational Governance (68) Inter-American Court of Human Rights (2012b: paras. 79–90). (69) Indeed, it cited the ECTHR’s case law as a direct source of authority: “Bearing in mind the general obligations to respect and guarantee the rights established in Art. 1.1 of the American Convention, the interpretation criteria set forth in Article 29 of that Convention, the provisions of the Vienna Convention on the Law of Treaties, and the standards established by the European Court and the mechanisms of the United Nations (supra paras. 83–90), the InterAmerican Court establishes that the sexual orientation of persons is a category protected by the Convention. Therefore, any regulation, act, or practice considered discriminatory based on a person’s sexual orientation is prohibited. Consequently, no domestic regulation, decision, or practice, whether by state authorities or individuals, may diminish or restrict, in any way whatsoever, the rights of a person based on his or her sexual orientation”; Inter-American Court of Human Rights (2012b:, para. 91). (70) Inter-American Court of Human Rights (2012b: paras. 141–6 and 161–72). (71) Inter-American Court of Human Rights (2012a). (72) Inter-American Court of Human Rights (2012a: para. 260). (73) Inter-American Court of Human Rights (2012a: paras. 285–304). (74) Inter-American Court of Human Rights (2012b: para. 92). (75) Inter-American Court of Human Rights (2012a: para. 256). (76) Inter-American Court of Human Rights (2012a: para. 316). Dissenting Judge Pérez Pérez argued that the Court should have deployed a systemic version of the margin of appreciation in deference to Chile, on the basis of a lack of consensus; Inter-American Court of Human Rights (2012a: paras. 10–17). (77) Inter-American Court of Human Rights (2017: para. 26). (78) See the Separate Opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights (2017: para. 26). (79) African Court on Human and People’s Rights (2013: para. 107.1, Tanganyika Law Society), following the African Commission’s jurisprudence. (80) African Court on Human and People’s Rights (2013: para. 107.1, Tanganyika Law Society). (81) African Court on Human and People’s Rights (2013: para. 90.1. Tanganyika Law Society).

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Global Constitutionalism and Transnational Governance (82) African Court on Human and People’s Rights (2013: para. 106.1) (emphasis in original). (83) African Court on Human and People’s Rights (2013: paras. 106.1–106.5). (84) African Court on Human and People’s Rights (2013: para. 126.3). (85) Enabulele (2016: 18). (86) African Court on Human and People’s Rights (2014); (2017). (87) E.g., African Court on Human and People’s Rights (2017: para. 136). (88) African Court on Human and People’s Rights (2017: para. 138, Umuhoza). (89) African Court on Human and People’s Rights (2017: paras. 148–9, Umuhoza). (90) See Milej (2018) for an overview of the EACJ’s foundational jurisprudence. (91) The leading case is East African Court of Justice (2007). (92) East African Court of Justice (2015a, paras. 53–68). On the direct applicability of rights within national legal orders, the EACJ cited to the seminal rulings of the Court of Justice of the European Union, East African Court of Justice (2015a: para. 53). (93) East African Court of Justice (2015a: para. 58). (94) Article 33.2 of the Treaty for the Establishment of the East African Community stipulates that the rulings of the Court “on the interpretation and application of this Treaty shall have precedence over decisions of national courts on a similar matter.” (95) Milej (2018: 113–17). (96) Oloka-Onyango (2015). (97) East African Court of Justice (2013: para. 42); (2015c: para. 84). (98) Milej (2018: 110). (99) East African Court of Justice (2015b: paras. 74–84). (100) East African Court of Justice (2015b: para. 85). (101) East African Court of Justice (2015b: paras. 85–6). (102) East African Court of Justice (2018: para. 5).

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Global Constitutionalism and Transnational Governance (103) East African Court of Justice (2018: paras 32–6). (104) East African Court of Justice (2018: paras. 67–9). (105) East African Court of Justice (2018: paras. 62–3). (106) East African Court of Justice (2018: paras. 69–70, 74). (107) FB Attorneys (February 5, 2018). (108) Economic Community of West African States Court of Justice (2008a). (109) Economic Community of West African States Court of Justice (2008b). (110) Economic Community of West African States Court of Justice (2010). (111) Economic Community of West African States Court of Justice (2017a). (112) Economic Community of West African States Court of Justice (2017b). (113) Curiously, as Alter,Helfer, and McAllister (2013: 11–12) point out, the ECOWAS Court did not develop a stable version of PA to process free movement claims, as the CJEU does. (114) Amnesty International (2016). (115) Article 1.7 states: “Any restriction on freedom of expression shall: a) be provided by law; b) correspond to a necessary and legitimate purpose in protecting the rights of the individual or the public interest sufficiently pressing to outweigh the public interest in, and fundamental importance of, freedom of expression in a democracy; and c) be proportionate to the legitimate aim pursued or sought to be protected.” Economic Community of West African States (2010). (116) Economic Community of West African States Court of Justice (2018). (117) Economic Community of West African States Court of Justice (2018: 47–48). (118) Alter, Helfer, and McAllister (2013: 739). (119) Walker (2002; 2008). (120) Originalists have rejected a balancing approach to rights on the grounds that the enacted constitutional text already encodes the balance struck by the framers and ratified by the people, that is binding on courts. Justice Scalia made this argument in Heller, United States Supreme Court (2008: 634–5). Even accepting the premise of this argument—that courts are bound by the original

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Global Constitutionalism and Transnational Governance meaning of a provision—balancing in adjudication is still appropriate if the right was understood as qualified rather than absolute when enacted. (121) Gardbaum (2008: 752). (122) Kumm (2013). (123) Stone Sweet (2013). (124) More generally, see Walker (2002); Maduro (2009); Stone Sweet and Ryan (2018: chs. 3, 6). (125) The German labor courts, for example, rebelled against the failure of the German Federal Constitutional Court to permit PA to adjudicate certain employment discrimination claims. The Court of Justice of the EU sided with the former, and the German Federal Constitutional Court was induced to follow. Case study in Stone Sweet and Stranz (2012). (126) See, more generally Andenæs and Bjørge, eds. (2015); Jakubowski and Wierczyńska, eds. (2016); Peters (2017).

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Table of Cases

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

(p.197) Table of Cases Alec Stone Sweet Jud Mathews

National Courts – Rulings and Reports Australia High Court of Australia. 2016. Murphy v. Electoral Commissioner [2016] HCA 36; 90 ALJR 1027. High Court of Australia. 2015. McCloy v. New South Wales [2015] HCA 34; 257 CLR 178. Brazil Federal Supreme Court of Brazil. 2016. STF, HC 124.306/RJ, Judgment of November 29, 2016 (Abortion). Federal Supreme Court of Brazil. 2004. STF, HC 82.424-2-RS. Judgement of March 18, 2004 (Anti-Semitic Speech). Canada Supreme Court of Canada. 2015. Loyola High School v. Quebec (Attorney General), [2015] 1 S.C.R. 613. Supreme Court of Canada. 2013. Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101. Supreme Court of Canada. 2012. Doré v. Barreau du Québec, [2012] 1 S.C.R. 395. Supreme Court of Canada. 2009. Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567. Supreme Court of Canada. 2007. Canada (Attorney General) v. JTIMacdonald Corp., [2007] 2 S.C.R. 610.

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Table of Cases Supreme Court of Canada. 2002. Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519. Supreme Court of Canada. 2001. R. v. Sharpe, [2001] 1 S.C.R. 45. Supreme Court of Canada. 1999. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. Supreme Court of Canada. 1998. Vriend v. Alberta, [1998] 1 R.C.S. 495. Supreme Court of Canada. 1994. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. Supreme Court of Canada. 1993. Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438. Supreme Court of Canada. 1991. R. v. Wholesale Travel Group, [1991] 3 S.C.R. 154. Supreme Court of Canada. 1989a. Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. Supreme Court of Canada. 1989b. Slaight Communications Inc v. Davidson, [1989] 1 S.C.R. 1038. Supreme Court of Canada. 1986a. R. v. Oakes, [1986] 1 S.C.R. 103. (p.198) Supreme Court of Canada. 1986b. RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. Supreme Court of Canada. 1985a. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. Supreme Court of Canada. 1985b. Ontario Human Rights Commission v. Simpson-Sears, [1985] 2 S.C.R. 536. China Supreme People’s Court of China. 1999. Huifeng Industry Development Co., Ltd. v. Harbin City Planning Bureau, Judicial Decision No. 20 of Supreme People’s Court (1999). People’s Court of Meishan County, Sichuan Province. 2001. Liu Ming v No. 8 Engineering Company of Division No. 2 of the No. 20 Engineering Bureau of the Ministry of Railways and Luo Youmin. Colombia Constitutional Court (August 10, 1999). Constitutional Court (January 23, 1996). Constitutional Court (May 14, 1994). Constitutional Court (June 5, 1992).

of Colombia. 1999. Judgment No. T-568/99 of Colombia. 1996. Judgment No. C-022/96 of Colombia. 1994. Judgment No.T-230/94 of Colombia. 1992. Judgment No. T-406/92

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Table of Cases Germany German Federal Constitutional Court. 2017. 2019/16 (October 10, 2017) (Third Gender). German Federal Constitutional Court. 2007. 535/06 (August 10, 2007) (Verwurzelung). German Federal Constitutional Court. 1994. (March 9, 1994) (Cannabis Case). German Federal Constitutional Court. 1993. 203 (May 28, 1993) (Abortion II). German Federal Constitutional Court. 1979. (July 18, 1979) (Deportation II). German Federal Constitutional Court. 1977. (June 21, 1977) (Life Imprisonment Case). German Federal Constitutional Court. 1976. (May 11, 1976) (Deutschland-Magazin). German Federal Constitutional Court. 1975. 1 (February 25, 1975) (Abortion I).

BVerfGE 1 BvR BVerfGE 2 BvR BVerfGE 90, 145, BVerfGE 88, BVerfGE 51, 386 BVerfGE 45, 187 BVerfGE 42, 143 BVerfGE 39,

German Federal Constitutional Court. 1973. BVerfGE 35, 202 (July 5, 1973) (Lebach). German Federal Constitutional Court. 1968. BVerfGE 23, 127 (March 5, 1968) (Jehovah’s Witness). German Federal Constitutional Court. 1965. BVerfGE 19, 342 (December 15, 1965). (Wenckler). German Federal Constitutional Court. 1964. BVerfGE 18, 85 (June 10, 1964) (Patent Case). (p.199) German Federal Constitutional Court. 1963. BVerfGE 16, 194 (June 10, 1963) (Lumbar Puncture). German Federal Constitutional Court. 1958a. BVerfGE 7, 158 (January 15, 1958) (Lüth). German Federal Constitutional Court. 1958b. BVerfGE 7, 377 (June 11, 1958) (Pharmacy Case). German Federal Constitutional Court. 1956. BVerfGE 6, 32 (February 22, 1956) (Elfes). German Federal Constitutional Court. 1954a. BVerfGE 3, 383 (June 3, 1954). (All-German Block). German Federal Constitutional Court. 1954b. BVerfGE 4, 7 (July 20, 1954) (Investment Aid I). Bavarian Constitutional Court. 1949. VerfGH Bayern (July 7, 1949) 1 II Entscheidungen des Bayerischen Verfassungsgerichtshofs 63 (76) (F.R.G.). Bavarian Constitutional Court. 1956. VerfGH Bayern (December 28, 1956) 9 II Entscheidungen des Bayerischen Verfassungsgerichtshofs 158 (177) (F.R.G.).

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Table of Cases Hong Kong Hong Kong Court of Final Appeal. 2017. Sixtus Leung Chung Hang v. Chief Executive [2017] HKCFA 55. Hong Kong Court of Final Appeal. 2013. Leung Chun Ying v. Ho Chun Yan Albert [2013] 16 HKCFAR 735. Hong Kong Court of Final Appeal. 2010. Mok Charles Peter v. Tam Wai Ho and Another [2010] 13 HKCFAR 762. Hong Kong Court of Final Appeal. 2005. Leung Kwok Hung and Others v. HKSAR [2005] 8 HKCFAR 229. Hong Kong Court of Final Appeal. 1999. HKSAR v. Ng Kung Siu and Another [1999] 2 HKCFAR 442. Hong Kong Court of Final Appeal. 1992. R v. Sin Yau Ming [1992] 1 HKCLR 127. Ireland Supreme Court of Ireland. 1997. Rock v. Ireland [1997] 3 I.R. 484. Israel Supreme Court of Israel. 2004. HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel [2004]. Supreme Court of Israel. 1995. CA 682/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995]. Supreme Court of Israel. 1993. HCJ 987/94 Turkeman v. Minister of Defense [1993]. Supreme Court of Israel. 1982. HCJ 361/82 Hamri v. Commander of Judea and Samaria [1982]. Kenya Supreme Court of Kenya. 2017. Okuta v. Attorney General, Petition No. 397, February 6, 2017. (p.200) Malaysia Supreme Court of Malaysia. 2015. Public Prosecutor v. Azmi Sharom [2015] 6 MLJ 751. Supreme Court of Malaysia.1990. Persuatuan Aliran Kesederan Negara v. Minister of Home Affairs [1988] 1 MLJ 440, [1990] 1 MLJ 351. Supreme Court of Malaysia. 1988. Karpal Singh v. Minister for Home Affairs [1988] 1 MLJ 468. Federal Court of Malaysia. 2018. Kerajaan Malaysia v. Mat Shuhaimi Bin Shafiei [2018] MYFC 2. Federal Court of Malaysia. 2017. Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526. High Court of Malaysia. 2010. Sivarasa Rasiah v. Badab Peguam Malaysia and Anor [2010] AMR 301. Page 4 of 12

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Table of Cases Mexico Supreme Court of Mexico. 2017. Alestra v. Mexican Institute of Industrial Property, Suprema Corte de Justicia de la Nación [SCJN] 1/2017. Supreme Court of Mexico. 2010. Caso Radilla Pacheco y Reforma Constitucional en Materia de Derechos Humanos en México, Consecuencias de su Nuevo Contexto, available in Spanish at: https://www.supremacorte.gob.mx/sites/default/files/ transparencia/documentos/becarios/085guadalupe-de-la-pazvarela-dominguez.pdf Peru Constitutional Tribunal of Peru. 2007. Colegio de Abogados del Callao c. Congreso de la República, No. 00007-2007-PI/TC, (June 19, 2007). New Zealand Supreme Court of New Zealand. 2007. R v. Hansen [2007] 3 N.Z.L.R. 1 (S.C.). Court of Appeal of New Zealand. 1992. Ministry of Transport v. Noort [1992] 3 N.Z.L.R. 260 (C.A.). South Africa Constitutional Court of South Africa. 2006. Doctors for Life International v. Speaker of the National Assembly and Others (CCT12/05) ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (August 17, 2006). Constitutional Court of South Africa. 2002. Khumalo and Others v. Holomisa (CCT53/01) ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (June 14, 2002). Constitutional Court of South Africa. 2000. State v. Manamela and Another (CCT25/99) ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491 (April 14, 2000). Constitutional Court of South Africa. 1999a. August and Another v. Electoral Commission and Others (CCT8/99) ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (April 1, 1999). Constitutional Court of South Africa. 1999b. National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others (CCT11/98) ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (October 9, 1999). (p.201) Constitutional Court of South Africa.1996. Certification of the Constitution of the Republic of South Africa (First Hearing 1994) (CCT 23/96) ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (September 6, 1996). Page 5 of 12

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Table of Cases Constitutional Court of South Africa. 1995a. State v. Makwanyane and Another (CCT3/94) ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (June 6, 1995). Constitutional Court of South Africa. 1995b. State v. Williams and Others (CCT20/94) ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (June 9, 1995). Constitutional Court of South Africa. 1995c. S v. Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995). Constitutional Court of South Africa.1994. Certification of the Constitution of the Republic of South Africa (First Hearing); 1994 (4) SA 744 (6 September 1996). High Court of South Africa. 2008. Strydom v. Nederduitse Gereformeerde Gemeente Moreleta Park (26926/05) [2008] ZAGPHC 269; (2009) 30 ILJ 868 (EqC) (August 27, 2008). South Korea Constitutional Court of Korea. 2008. Constitutional Court Decision, 20-2(A) KCCR 1089, 2006Hun-Ma1098·1116·1117 (consolidated), October 30, 2008. Constitutional Court of Korea. 2006. Constitutional Court Decision, 18-1(B) KCCR 112, 2003Hun-Ma715 and 2006 Hun-Ma (consolidated), May 25, 2006. Constitutional Court of Korea. 2004. Constitutional Court Decision, 16-1 KCCR 609, 2004Hun-Na1, May 14, 2004. Constitutional Court of Korea. 1997. Constitutional Court Decision, 95Hun-Ga6-13, July 16, 1997. Constitutional Court of Korea. 1992. Constitutional Court Decision, 92Hun-Ga8, December 24, 1992. Taiwan Constitutional Court of Taiwan. 2017. Interpretation No. 748 by Grand Justices of the Judicial Yuan, interpreted and issued on May 24, 2017. Constitutional Court of Taiwan. 2004a. Interpretation No. 578 by Grand Justices of the Judicial Yuan, interpreted and issued on September 17, 2004. Constitutional Court of Taiwan. 2004b. Interpretation No. 578 by Grand Justices of the Judicial Yuan, interpreted and issued on May 21, 2004. Constitutional Court of Taiwan. 1998. Interpretation No. 471 by Grand Justices of the Judicial Yuan, interpreted and issued on December 18, 1998.

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Table of Cases Constitutional Court of Taiwan. 1996. Interpretation No. 409 by Grand Justices of the Judicial Yuan, interpreted and issued on July 5, 1996. Constitutional Court of Taiwan. 1978. Interpretation No. 154 by Grand Justices of the Judicial Yuan, interpreted and issued on September 29, 1978. Switzerland Federal Supreme Court of Switzerland. 1926. BGE 52, I 222 (September 24, 1926). (p.202) Tanzania High Court of Tanzania, Dar es Salaam. 2018. Attorney General versus Jeremia Mtobesya. Judgment of February 6 or 7, 2018. Not yet reported. United Kingdom House of Lords. 1998. De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing, 1 A.C. 69 (P.C. 1998). United States United States Supreme Court. 2015. Obergefell v. Hodges, 576 U.S. (2015). United States Supreme Court. 2013. Shelby County v. Holder, 570 U.S. 2 (2013). United States Supreme Court. 2008a. Crawford v. Marion County Election Board, 553 U.S. 181 (2008). United States Supreme Court. 2008b. District of Columbia v. Heller, 554 U.S. 570 (2008). United States Supreme Court. 2007. United Haulers Assn. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007). United States Supreme Court. 1996a. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). United States Supreme Court. 1996b. Romer v. Evans, 517 U.S. 620 (1996). United States Supreme Court. 1996c. United States v. Virginia, 518 U.S. 515 (1996). United States Supreme Court. 1994. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994). United States Supreme Court. 1993. F.C.C. v. Beach Communications, 508 U.S. 307 (1993). United States Supreme Court. 1992a. Wyoming v. Oklahoma, 502 U.S. 437 (1992). Page 7 of 12

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Table of Cases United States Supreme Court. 1992b. Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992). United States Supreme Court. 1989. Webster v. Reprod. Health Servs., 492 U.S. 490 (1989). United States Supreme Court. 1985. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). United States Supreme Court. 1982. New York v. Ferber, 458 U.S. 747 (1982). United States Supreme Court. 1981. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981). United States Supreme Court. 1980. Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980). United States Supreme Court. 1979a. Orr v. Orr, 440 U.S. 268 (1979). United States Supreme Court. 1979b. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979). United States Supreme Court. 1979c. Califano v. Westcott, 443 U.S. 76 (1979). United States Supreme Court. 1978. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). United States Supreme Court. 1977. Califano v. Webster, 430 U.S. 313 (1977). (p.203) United States Supreme Court. 1976a. Mathews v. Eldridge, 424 U.S. 319 (1976). United States Supreme Court. 1976b. Craig v. Boren, 429 U.S. 190 (1976). United States Supreme Court. 1973a. Roe v. Wade, 410 U.S. 113, 155 (1973). United States Supreme Court. 1973b. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). United States Supreme Court. 1973c. Frontiero v. Richardson, 411 U.S. 677 (1973). United States Supreme Court. 1971. Reed v. Reed, 404 U.S. 71 (1971). United States Supreme Court. 1970. Pike v. Bruce Church, 397 U.S. 137 (1970). United States Supreme Court. 1969. Brandenburg v. Ohio, 395 U.S. 444 (1969). United States Supreme Court. 1968. United States v. O’Brien, 391 U.S. 367 (1968). United States Supreme Court. 1967. Camara v. Municipal Court, 387 U.S. 523 (1967). United States Supreme Court. 1963. Sherbert v. Verner, 374 U.S. 398 (1963). Page 8 of 12

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Table of Cases United States Supreme U.S. 660 (1962). United States Supreme U.S. 599, 610 (1961). United States Supreme (1961). United States Supreme 72 (1959). United States Supreme 360 U.S. 109 (1959). United States Supreme 354 U.S. 234 (1957). United States Supreme U.S. 476 (1957). United States Supreme 348 U.S. 483 (1955). United States Supreme

Court. 1962. Robinson v. California, 370 Court. 1961a. Braunfeld v. Brown, 366 Court. 1961b. Hoyt v. Florida, 368 U.S. 57 Court. 1959a. Uphaus v. Wyman, 360 U.S. Court. 1959b. Barenblatt v. United States, Court. 1957a. Sweezy v. New Hampshire, Court. 1957b. Roth v. United States, 354 Court. 1955. Williamson v. Lee Optical, Court. 1951a. Dean Milk Co. v. City of

Madison, 340 U.S. 349 (1951). United States Supreme Court. 1951b. Dennis v. United States, 341 U.S. 494 (1951). United States Supreme Court. 1948. Goesaert v. Cleary, 335 U.S. 464 (1948). United States Supreme Court. 1946. Marsh v. Alabama, 326 U.S. 501(1946). United States Supreme Court. 1944. Korematsu v. United States, 323 U.S. 214 (1944). United States Supreme Court. 1942a. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). United States Supreme Court. 1942b. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). United States Supreme Court. 1942c. Wickard v. Filburn, 317 U.S. 111 (1942). United States Supreme Court. 1939. Schneider v. New Jersey, 308 U.S. 147 (1939). United States Supreme Court. 1938. United States v. Carolene Prodsucts Co., 304 U.S. 144 (1938). United States Supreme Court. 1902. Reid v. Colorado, 187 U.S. 137 (1902). United States Supreme Court. 1898. Schollenberger v. Pennsylvania, 171 U.S. 1 (1898). United States Supreme Court. 1894a. Lawton v. Steele, 152 U.S. 133 (1894). (p.204) United States Supreme Court. 1894b. Plumley v. Massachusetts, 155 U.S. 461 (1894). Page 9 of 12

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Table of Cases United States Supreme Court. 1890. Minnesota v. Barber, 136 U.S. 313 (1890). United States Supreme Court. 1883. The Civil Rights Cases, 109 U.S. 3 (1883). United States Supreme Court. 1877a. Munn v. Illinois, 94 U.S. 113 (1877). United States Supreme Court. 1877b. Railroad Co. v. Husen, 95 U.S. 465 (1877). United States Supreme Court. 1829. Willson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829). United States Supreme Court. 1803. Marbury v. Madison, 5 U.S. 137 (1803). U.S. First Circuit Court of Appeals. 1967. O’Brien v. United States, 376 F.2d 538, (1st Cir. 1967). U.S. D.C. Circuit Court of Appeals. 1970. Greater Boston Television Corp. v. FCC, 444 F2d. 841 (D.C. Cir. 1970). U.S. District Court for the Western District of Oklahoma. 1954. Lee Optical of Oklahoma v. Williamson, 120 F. Supp. 128 (W.D. Okla. 1954). Zimbabwe Supreme Court of Zimbabwe. 2013. Chimakure, Kahiya and ZimInd Publishers (Pvt) Ltd. v. Attorney-General of Zimbabwe, Constitutional Application No. SC 247/09, Judgment of October 30, 2013. High Court of Harare. 2017. Mangwiro v. Minister, Justice and Legal Affairs and Others (HH 172-17 HC 6960/16) [2017] ZWHHC 172, Judgement of March 15, 2017. International Courts – Rulings and Reports African Court on Human and Peoples’ Rights 2017. Ingabire Victoire Umuhoza v. Republic of Rwanda, Application No. 003/2014, Judgment of November 24, 2017. 2014. Loha Issé Konaté v. The Republic of Burkina Faso, Application No. 004/2013, Judgments of December 5, 2014. 2013. Tanganyika Law Society and Legal and Human Rights Centre and Reverend Christopher R. Mtikila v. United Republic of Tanzania, Applications No. 009/2011 and No. 011/2011, Judgment of June 14, 2013. 2012. Report of the African Court On Human and Peoples’ Rights on the Relevant Aspects Regarding the Judiciary in the Protection of Human Rights in Africa. Online at: http://en.african-court.org/

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Table of Cases

images/Other%20Reports/ Report_of_the_African_Court_on_Human_and_Peoples_Rights_in_the_Protection_of_H . Court of Justice of the European Union 1989. Schräder v. Hauptzollamt Gronau, case 265/87, ECR 1989, p. 2237. 1979. Cassis de Dijon, case 120/78, ECR 1979, p. 649. East African Court of Justice 2018. Mseto and another v. Tanzania, Case No. 7 of 2016, Judgment of June 21, 2018. (p.205) 2015a. Reference for a Preliminary Ruling by the High Court of Uganda in the Proceedings of Uganda and Kyahurwenda, Case No. 1 of 2014, July 31, 2015. 2015b. Burundian Journalists’ Union v. Burundi, Case No. 7 of 2013, Judgment of May 15, 2015. 2015c. Sitenda Sebalu v. The Secretary General of the East African Community, Case No. 8 of 2012, Judgment of March 19, 2015. 2013. Sitenda Sebalu v. The Secretary General of the East African Community and Others, Case No. 1 of 2010, Judgment of December 22, 2013. 2007. James Katabazi and 21 Others v. Secretary General of the East African Community and the Attorney General of the Republic of Uganda, Case. No. 1 of 2007, Judgment of October 31, 2007. Economic Community of West African States Court of Justice 2018. The Federation of African Journalists and others v. The Gambia, Case No. ECW/CCJ/APP/36/15, Judgment of February 13, 2018. 2017a. Njemanze and others v. Nigeria, Case No. CW/CCJ/APP/ 17/14, Judgment of October 12, 2017. 2017b. Kwasu v. Nigeria, Case No. ECW/CCJ/APP/24/15, Judgment of October 10, 2017. 2010. Socio-Economic Rights and Accountability Project v. Nigeria, Case No. ECW/CCJ/APP/08/08, Judgment of November 30, 2010. 2008a. Hadijatou Mani Koraou v. Niger, Case No. ECW/CCJ/APP/ 08/07, Judgment of October 27, 2008. 2008b. Manneh v. The Gambia, Case No. ECW/CCJ/APP/04/07, Judgment of June 5, 2008.

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Table of Cases European Court of Human Rights 2014. Dialogue between judges, European Court of Human Rights, Council of Europe, 2014,” online at: https:// www.echr.coe.int/Documents/Dialogue_2014_ENG.pdf. 2012a. Centro Europa 7 v. Italy (Application no. 38433/09), Grand Chamber Judgment of June 7, 2012. 2012b. Von Hannover v. Germany [no. 2] (Application no. 40660/08 and 606421/08), Grand Chamber Judgement of February 7, 2012. 2009. Burdov v. Russia [no. 2] (Application no. 3350904), Grand Chamber Judgment of January 15, 2009. 2005. Hirst v. The United Kingdom (Application no.74025/01), European Court of Human Rights, Judgment of October 6, 2005. 2004a. Von Hannover v. Germany (Application no. 59320/00), European Court of Human Rights, Judgment of June 24, 2004. 2004b. Broniowski v. Poland (Application no. 31443), Grand Chamber Judgment of June 22, 2004. 1990. Cossey v. The United Kingdom (Application no. 10843/84), European Court of Human Rights, Judgment of September 27, 1990. (p.206) Inter-American Court of Human Rights 2017. Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples, Ser. A No. 24, Inter-Am. C.H.R. Advisory Opinion OC-24/17 of November 24, 2017. 2012a. Murillo v. Costa Rica, Ser. C No. 257, Inter-Am. C.H.R., Judgment of November 28, 2012. 2012b. Atala Riffo and Daughters v. Chile, Case 12.502, Inter-Am. C.H.R., Judgment of February 24, 2012. 2009. Tristan Donoso v. Panama, Ser. C No. 193, Inter-Am. C.H.R., Judgment of January 27, 2009. 2008. Eduardo Kimel v. Argentina, Ser. C No. 177, Inter-Am. C.H.R., Judgment of May 2, 2008. 2004a. Gomez Paquiyauri Brothers v. Peru, Ser. C No. 110, InterAm. C.H.R., Judgment of July 8, 2004. 2004b. Herrera-Ulloa v. Costa Rica, Ser. C No. 107, Inter-Am. C.H.R., Judgement of July 2, 2004. 1985. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Ser. A No. 5, Inter-Am. C.H.R., Advisory Opinion OC-5/1985 of November 13, 1985.

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References

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

(p.207) References Alec Stone Sweet Jud Mathews

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References Rights, Justification, Reasoning. Cambridge: Cambridge University Press, 186– 204. (p.213) Huscroft, Grant, Bradley Miller, and Gregoire Webber, eds. 2014. Proportionality and the Rule of Law: Rights, Justification, Reasoning. Cambridge: Cambridge University Press. IDEA (Institute for Democracy and Electoral Assistance). 2017. “Threats from Within: Democracy’s Resilience to Backsliding.” The Global State of Democracy. Online at: https://www.idea.int/gsod/files/IDEA-GSOD-2017-CHAPTER-3-EN.pdf Inter-American Commission of Human Rights. 2009a. The Inter-American Legal Framework Regarding the Right to Freedom of Expression. OEA/Ser.L/V/II, CIDH/RELE/INF. 2/09, December 30, 2009. Inter-American Commission of Human Rights. 2009b. Annual Report of the InterAmerican Commission on Human Rights, Report of the Special Rapporteur for Freedom of Expression—2009. OEA/Ser.L/V/II. Doc. 51 corr. 1, December 30, 2009. Issacharoff, Samuel. 2015. Fragile Democracies: Contested Power in the Era of Constitutional Courts. Cambridge: Cambridge University Press. Jackson, Vicki. 2015. “Constitutional Law in an Age of Proportionality.” Yale Law Journal, 124: 3094–196. Jakubowski, Andrzej, and Karolina Wierczyńska, eds. 2016. Fragmentation vs the Constitutionalisation of International Law: A Practical Inquiry. London: Routledge. Jarass, Hans, and Bodo Pieroth. 2012. Grundgesetz Für Die Bundesrepublik Deutschland. Munich: Beck. Jepperson, Ronald. 1991. “Institutions, Institutional Effects, and Institutionalism.” In W. W. Powell, and P. DiMaggio eds. The New Institutionalism in Organizational Analysis. Chicago: University of Chicago Press: 143–63. Ji, Hailong. 2016. “Proportionality Theory’s Applicability in Private Party Disputes and Examples.” Tribune of Political Science and Law, 34: 95–103. Kalyvas, Andreas. 2006. “The Basic Norm and Democracy in Hans Kelsen’s Legal and Political Theory.” Philosophy and Social Criticism, 32: 573–99. Kelemen, R. Daniel. 2017. “The Assault on Poland’s Judiciary: The Danger Is Not Gone, and the EU Must Step Up.” Foreign Affairs. Online at https:// www.foreignaffairs.com/articles/poland/2017-07-26/assault-polands-judiciary.

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References Keller, Helen, and Alec Stone Sweet, eds. 2008. A Europe of Rights: The Impact of the ECHR on National Legal Systems. Oxford: Oxford University Press. Kelsen, Hans. 1928. “La garantie juridictionnelle de la constitution.” Revue du Droit Public, 44: 197–257. Kibet, Eric, and Charles Fombad. 2017. “Transformative Constitutionalism and the Adjudication of Constitutional Rights in Africa.” African Human Rights Law Journal, 17: 340–66. Klabbers, Jan, Anne Peters, and Geir Ulfstein. 2009. The Constitutionalisation of International Law. Oxford: Oxford University Press. Klatt, Mattias, and Moritz Meister. 2012. The Constitutional Structure of Proportionality. Oxford: Oxford University Press. Klug, Heinz. 2010. The Constitution of South Africa: A Contextual Analysis (Constitutional Systems of the World). Oxford: Hart Publishing. Klug, Heinz. 2000. Constituting Democracy: Law, Globalism, and South Africa’s Political Reconstruction. New York: Cambridge University Press. (p.214) Kokott, Juliane, and Christoph Sobotta. 2017. “The Evolution of the Principle of Proportionality in EU Law: Towards an Anticipative Understanding?” In S. Vogenauer, and S. Weatherill, eds. General Principles of Law: European and Comparative Perspectives. Oxford: Hart Publishing: 167–78. Kommers, Donald. 1994. “The Federal Constitutional Court in the German Political System.” Comparative Political Studies, 26: 470–91. Kommers, Donald. 1976. Judicial Politics in West Germany. Beverly Hills: Sage. Kramer, Larry. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. Oxford: Oxford University Press. Krauss, Rupprecht von. 1955. Der Grundsatz der Verhaltnismassigkeit in seiner Bedeutung für die Notwendigkeit des Mittels im Verwaltungsrecht. Hamburg: Appel. Krüger, Herbert. 1950. “Die Einschrankung von Grundrechten nach dem Grundgesetz.” 1950, Deutsches Verwaltungsblatt 625–9. Kumm, Mattias. 2013. “The Cosmopolitan Turn in Constitutionalism: An Integrative Conception of Public Law.” Indiana Journal of Global Legal Studies, 20: 605–28.

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References Kumm, Mattias. 2010. “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review.” Law & Ethics of Human Rights, 4: 141–77. Kumm, Mattias. 2009. “The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State.” In J. Dunoff, and J. Trachtman, eds. Ruling the World? International Law, Global Governance, Constitutionalism. Cambridge: Cambridge University Press: 258–326. Kumm, Mattias. 2006. “Who is Afraid of the Total Constitution? Rights as Principles and the Constitutionalisation of Private Law.” German Law Journal, 7: 341–70. Kumm, Mattias, and Victor Ferreres Comella. 2005. “What Is So Special about Constitutional Rights in Private Litigation? A Comparative Analysis of the Function of State Action Requirements and Indirect Horizontal Effect.” In A. Sajó, and R. Uitz, The Constitution in Private Relations: Expanding Constitutional Relations. Utrecht: Eleven International Publishing: 241–86. Kumm, Mattias, and Alec Walen. 2014. “Human Dignity and Proportionality: Deontic Pluralism in Balancing.” In G. Huscroft, B. Miller, and G. Webber, eds. Proportionality and the Rule of Law: Rights, Justification, Reasoning. Oxford University Press: 67–89. Landfried, Christine. 1992. “Judicial Policymaking in Germany: The Federal Constitutional Court.” Western European Politics, 15: 50–67. Landfried, Christine, ed. 1989. Constitutional Review and Legislation: An International Comparison. Baden-Baden: Nomos. Landfried, Christine. 1984. Bundesverfassungsgericht and Gesetzgeber [The Federal Constitutional Court and the legislature]. Baden-Baden: Nomos. Langford, Malcom, ed. 2009. Social Rights Jurisprudence: Emerging Trends in International and Comparative Law. Cambridge: Cambridge University Press. Lash, Kurt T. 2014. The Fourteenth Amendment and the Privileges and Immunities of American Citizenship. Cambridge: Cambridge University Press. Law, David. 2011. “Why has Judicial Review Failed in Japan?” Washington University Law Review, 88: 1425–66. Law, David, and Mila Versteeg. 2013. “Sham Constitutions.” California Law Review, 101: 863–952. (p.215) Law, David, and Mila Versteeg. 2011. “The Evolution and Ideology of Global Constitutionalism.” California Law Review, 99: 1163–257. Page 12 of 24

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References Lawson, Gary, Geoffrey Miller, Robert Natelson, and Guy Seidman. 2010. The Origins of the Necessary and Proper Clause. Cambridge: Cambridge University Press. Legg, Andrew. 2012. The Margin of Appreciation in International Human Rights Law. Oxford: Oxford University Press. Leib, Ethan, David Ponet, and Michael Serota. 2013. “A Fiduciary Theory of Judging.” California Law Review, 101: 699–753. Lenaerts, Koen. 1990. “Constitutionalism and the Many Faces of Federalism.” American Journal of Comparative Law, 38: 205–63. Lerche, Peter. 1961. Übermaß und Verfassungsrecht: Zur Bindung des Gesetzgebers an die Grundsatze der Verhaltnismäßigkeit und der Erforderlichkeit. Cologne: Heymann. Letsas, George. 2013. “The ECHR as a Living Instrument: its Meaning and Legitimacy.” In Føllesdal, Andreas, Birgit Peters, and Geir Ulfstein, eds. Constituting Europe: The European Court of Human Rights in a National, European and Global Context. Cambridge: Cambridge University Press: 106–41. Letsas, George. 2006. “Two Concepts of the Margin of Appreciation.” Oxford Journal of Legal Studies, 26: 705–32. Lin, Chien-Chih. 2017. “Autocracy, Democracy, and Juristocracy: The Wax and Wane of Judicial Power in the Four Asian Tigers.” Georgetown Journal of International Law, 48: 1063–144. Lorenzetti, Ricardo. 2010. President of the Supreme Court of Argentina, Presentation at the International Summit of High Courts: Global Governance: Dialogue Between Courts. Online at: http://www.summitofhighcourts.com/docs/ papers/argentina.pdf. MacCormick, Neil. 1978. Legal Reasoning and Legal Theory. Oxford: Clarendon. McGinnis, John O. 2016. “Reforming Constitutional Review of State Economic Legislation.” Georgetown Journal of Law and Public Policy, 14: 517–35. Maduro, Miguel Poiares. 2009. “Courts and Pluralism: Essay on a Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism.” In J. Dunhoff and J. Trachtman, eds. Ruling the World? Constitutionalism, International Law and Global Governance. Cambridge: Cambridge University Press: 356–79. Maduro, Miguel Poiares. 1998. We the Court: The European Court of Justice and the European Economic Constitution. Oxford: Hart Publishing. Page 13 of 24

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References Shelton, Dinah. 2014. Advanced Introduction to International Human Rights Law. Cheltenham: Edward Elgar. Sieder, Rachel, Line Schjolden, and Alan Angell, eds. 2005. The Judicialization of Politics in Latin America. New York: Palgrave Macmillan. Siegel, Stephen. 2006. “The Origin of the Compelling State Interest Test and Strict Scrutiny.” American Journal of Legal History, 48: 355–407. Simmons, Beth. 2009. Mobilizing Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press. Stern, Klaus. 1993. “Zur Entstehung und Ableitung des Übermaßverbots.” In P. Badura, and R. Scholz, eds. Wege und Verfahren des Verfassungslebens: Festschrift für Peter Lerche zum 65 Geburtstag. Munich: C. H. Beck, 165–75. Stolleis, Michael. 2003. “Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic.” Ratio Juris, 16: 266–80. Stone, Adrienne. 2018. “I-CONnect Symposium on “Constitutional Boundaries” – Proportionality and the Boundaries of Borrowing.” International Journal of Constitutional Law, Blog, April 24, 2018. Online at: http:// www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutionalboundaries-proportionality-and-the-boundaries-of-borrowing/ Stone, Alec. 1994. “Judging Socialist Reform: The Politics of Coordinate Construction in France and Germany.” Comparative Political Studies, 26: 443– 69. Stone, Alec. 1992. The Birth of Judicial Politics in France. Oxford: Oxford University Press. Stone, Alec. 1990. “The Birth and Development of Abstract Review: Constitutional Courts and Policy-Making in Western Europe.” Policy Studies Journal 19, 81–95. Stone, Alec. 1989. “In the Shadow of the Constitutional Council: The “Juridicisation” of the Legislative Process in France.” West European Politics, 12: 12–34. Stone Sweet, Alec. 2017 (4th ed.). “Constitutions, Rights, and Judicial Power.” In D. Caramani, ed., Comparative Politics. Oxford: Oxford University Press. Stone Sweet, Alec. 2013. “The Structure of Constitutional Pluralism.” International Journal of Constitutional Law, 11: 491–500.

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References Stone Sweet, Alec, and Eric Palmer. 2017. “A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing.” Journal of Global Constitutionalism, 6: 377–41. Stone Sweet, Alec, and Clare Ryan. 2018. A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the ECHR. Oxford: Oxford University Press. Stone Sweet, Alec, and Kathleen Stranz. 2012. “Rights Adjudication and Constitutional Pluralism in Germany and Europe.” Journal of European Public Policy, 19: 92–108. Strayer, Barry. 2013. Canada’s Constitutional Revolution. Edmonton: The University of Alberta Press. Strayer, Barry. 1992. “Post-Liberal Judging: The Roles of Categorisation and Balancing.” University of Colorado Law Review, 63: 293–19. Sullivan, Kathleen. 1993. “Categorisation, Balancing and Government Interests.” In S. Gottlieb, ed., Public Values in Constitutional Law. Ann Arbor: University of Michigan Press: 241–68. (p.221) Sullivan, E. Thomas, and Richard S. Frase. 2008. Proportionality Principles in American Law: Controlling Excessive Government Actions. Oxford: Oxford University Press. Svarez, Carl Gottlieb. 1960. Vorträge Über Recht Und Staat. H. Conrad, and G. Kleinheyer, eds. Cologne: Westdeutscher Verlag. Syma Czapanskiy, Karen, and Rashida Manjoo. 2008. “The Right of Public Participation in the Law-making Process and the Role of Legislature in the Promotion of this Right.” Duke Journal of Comparative & International Law, 19: 1–40. Taggart, Michael. 2008. “Proportionality, Deference, Wednesbury.” New Zealand Law Review, 2008: 423–81. Tang, Dezong. 2002. “Constitutional Structure and Constitutional Review– Commentary to Interpretation No. 520.” In K. Liu, and X. Chen, eds. Constitutional Interpretation and Theoretical Practice. City: Research Center for Humanities and Social Sciences: 98. Tarnopolsky, Walter. 1983. “The Constitution and Human Rights.” In K. Banting, and R. Simeon, eds. And No One Cheered: Federalism, Democracy, and the Constitution Act. New York: Methuen: 261–77. Thatcher, Mark, and Alec Stone Sweet. 2002. “Theory and Practice of Delegation to Non-Majoritarian Institutions.” West European Politics, 25: 1–22. Page 21 of 24

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References Thayer, James B. 1893. “The Origin And Scope Of The American Doctrine Of Constitutional Law.” Harvard Law Review, 7: 129–56. Tischbirek, Alexander. 2017. Die Verhältnismäßigkeitsprüfung: Methodenmigration zwischen öffentlichem Recht und Privatrecht. Tübingen: Mohr Siebeck. Trochev, Alexei. 2008. Judging Russia: Constitutional Court in Russian Politics, 1990–2006. Cambridge: Cambridge University Press. Tsakyrakis, Stavros. 2009. “Proportionality: An Assault on Human Rights?” International Journal of Constitutional Law, 7: 468–93. Tsereteli, Nino. 2016. “Emerging Doctrine of Deference of the Inter-American Court of Human Rights?” International Journal of Human Rights, 20: 1097–112. Tushnet, Mark. 2008. “Constitutional Workarounds.” Texas Law Review 87: 1499–515. Tussman, Joseph, and Jacobus tenBroek. 1949. “The Equal Protection of the Laws.” California Law Review 37: 341–81. Urbina, Francisco. 2017. A Critique of Proportionality and Balancing. Cambridge: Cambridge University Press. Vanberg, Georg. 2009. The Politics of Constitutional Review in Germany. Cambridge: Cambridge University Press. Vanberg, Georg. 1998. “Abstract Judicial Review, Legislative Bargaining, and Policy Compromise.” Journal of Theoretical Politics, 3: 299–326. Varju, Márton, and Nóra Chronowski. 2015. “Constitutional Backsliding in Hungary.” Tijdschrift voor Constitutional Law, 3: 296–310. Vermeule, Adrian. 1997. “Saving Constructions.” Georgetown Law Journal, 85: 1945–78. Volcansek, Mary. 2000. Constitutional Politics in Italy: The Constitutional Court. New York: St Martin’s Press, 2000. Volcansek, Mary. 1992. Special Issue: Judicial Politics and Policymaking in Western Europe. West European Politics, 15(3). Volokh, Eugene. 1996. “Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny.” University of Pennsylvania Law Review, 144: 2417–61.

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References (p.222) Waldron, Jeremy. 2004. “Some Models of Dialogues Between Judges and Legislators.” Supreme Court Law Review, 23: 7–46. Walker, Neil. 2008. “Taking Constitutionalism beyond the State.” Political Studies, 56: 519–43. Walker, Neil. 2002. “The Idea of Constitutional Pluralism.” Modern Law Review, 65: 317–59. Walker, Neil. 1996. “European Constitutionalism and European Integration.” Public Law (Summer): 266–90. Walters, Mark. 2015. “Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law.” In H. Wilberg, and M. Elliott, eds. The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. Oxford: Hart Publishing: 395–422. Webber, Gregoire. 2009. The Negotiable Constitution: On the Limitation of Rights. Cambridge: Cambridge University Press. Weinrib, Jacob. 2017. “When Trumps Clash: Dworkin and the Doctrine of Proportionality.” Ratio Juris, 30: 341–52. Weinrib, Jacob. 2016. Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge: Cambridge University Press. Weinrib, Jacob. 2014. “The Modern Constitutional State: A Defense.” Queen’s Law Journal, 40: 165–211. White, Edward. 1996. “The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America.” Michigan Law Review, 95: 299– 392. Wilberg, Hanna, and Mark Elliott, eds. 2015. The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow. Oxford: Hart Publishing. Winkler, Adam. 2006a. “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts.” Vanderbilt Law Review, 59: 793–871. Winkler, Adam. 2006b. “Fundamentally Wrong About Fundamental Rights.” Constitutional Commentary 23: 227–39. Würtenberger, Thomas. 1999. “Der Schutz von Eigentum und Freiheit im ausgehenden 18. Jahrhundert.” In W. Gose, and T. Würtenberger, eds. Zur Ideenund Rezeptionsgeschichte Des Preussisches Allgemeinen Landrechts. StuttgartBad Cannstatt: Frommann-Holzboog: 55–73.

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References Yap, Po Jen. 2017. Courts and Democracies in Asia. Cambridge: Cambridge University Press. Zamir, Itzhak. 1994. “Israeli Administrative Law Compared to German Administrative Law.” Mishpat U’Mimshal. [Law and Government in Israel], 2: 109–47. Zhan, Zhongle. 2003. “Proportionality in Administrative Law and Its Judicial Practice – Legal Analysis of Huifeng Development Industry Co. Ltd. v. Harbin City Planning Bureau.” Administrative Law Review, 1: 69–76. Zheng, Xiaojian. 2016. “Applying Proportionality Theory in Civil Law Litigation.” China Law Jurisprudence. 2: 143–65.

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Index

Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach Alec Stone Sweet and Jud Mathews

Print publication date: 2019 Print ISBN-13: 9780198841395 Published to Oxford Scholarship Online: July 2019 DOI: 10.1093/oso/9780198841395.001.0001

(p.223) Index Abella, Rosalie 72 abortion laws and cases 25, 41, 91, 115, 118, 135, 142–3, 178 absolute rights alternative to proportionality analysis 55 Black and Douglas on 107n61 proportionality analysis and 93, 119, 179 qualified rights vs. 13, 45 abstention doctrine 4 abstract review 15, 89–90, 113, 125, 129–30, 135, 143 accountability 21, 49, 52–3, 52–3n60, 189–90 Ackerman, Bruce 28–9 ACTHPR. See African Court on Human and Peoples’ Rights adjudication. See rights adjudication; rules of adjudication administrative institutions’ role in constitutional dialogues 143–51 compartmentalizing proportionality in 145–8 competition, cooperation, convergence of 148–51 proportionality review and 143–5, 147n74, 150 types of administrative institutions 144 administrative law case law deference as factor in 103 necessity review preferred over balancing 93 pre-dating proportionality analysis adoption in Prussia 62–3 procedure for 143 proportionality in 73, 82, 92, 144n58 standard of arbitrary and capricious review 104n38, 143 Africa. See also specific countries, charters, treaties, and courts proportionality in 92, 94 regional courts, focus on constitutional role of 162, 186 transnational systems of justice in 95 African Charter on Human and Peoples’ Rights (ACTHP) 171, 187–8 1998 Protocol 170–1 Page 1 of 30

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Index Art. 9 191 Art. 27.2 186–7 limitation clauses 189 African Court on Human and Peoples’ Rights (ACTHPR) 95, 167, 170–1, 186, 189, 191, 193 African Union 186–7. See also African Charter on Human and Peoples’ Rights; African Court on Human and Peoples’ Rights agency costs 20 diffusion and 60 legislative sovereignty model, agent’s role in 19, 21 Albert, Richard 27n79 Aleinikoff, Alexander 97n5 Alexy, Robert 46n45 on balancing 41, 120, 180 Brazilian Federal Supreme Court influenced by 91 Colombian Court influenced by 88 on proportionality analysis 39–40, 48, 54n70 on structural theory of rights 46, 46n45 Alter, Karen 164n3, 190n113 amendment of constitution. See constitutional amendments American Convention on Human Rights 3, 91, 164, 169–70, 179–85 Art. 1.1 183n69 Art. 12 180 Art. 13 180 Art. 13.2 181n64 Art. 15 180 Art. 16 180 Art. 24 180 Art. 29 183n69 conventionality doctrine, use of 185 raising standards of protection 183 amparo (constitutional complaint procedure) 16 annulment of statute 27, 45, 47–8, 136 Antaki, Mark 57n78 anticipatory reactions to legislation 135 anti-Semitism 91n155 apex courts. See also specific countries and courts in authoritarian settings 23n67 basic structure doctrine and 26–7 compliance with decisions of 127–8 duty to protect human rights 173 (p.224) effectiveness of 22, 127, 167 engagement with lawmaking officials 128, 131 (see also dialogues between courts and lawmakers) incompatibility of law with rights, methods of handling 136 most powerful and effective apex courts, enforcement of rights by 94, 163, 166, 183, 193 in structural judicial supremacy system 12 Page 2 of 30

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Index trusteeship created by authority of 20–2 (see also trustee courts) Apothekenurteil (Pharmacy Case German Federal Constitutional Court 1958) 65–6, 66n23, 92, 112, 154n98 arbitration tribunals 167 Argentina 169, 181–2, 182n65, 184 Asia. See also specific countries judicial review and rights protection in 81 proportionality in 2, 92, 94 Aurélio, Marco 91n155 Australia legislative sovereignty system in 11, 11n33 proportionality analysis by High Court 72 statutory bill of rights, debate over adoption of 12 authoritarian regimes collapse of 16 constitutions of 19n58 transition to constitutional democracy 23–4, 68, 80–1, 83, 179 using apex court to enhance regime’s power 90n148 autonomy 6, 52n58, 84, 91n158, 152, 158, 175, 194 German eighteenth-century philosophy and 61–2 of officials under constitutional court’s supervision 127 Baker (Supreme Court of Canada 1999) 147 balancing 4, 37–41. See also strict scrutiny abortion law and 135 absolute vs. qualified rights and 13 benefits of 48, 141 in Commonwealth family of legal systems 72–3 conflict between two principles of same constitutional rank settled through 46 constitutional governance and 154–8 controversial use of 38 criticism of 57 encroaching on legislative domain 59 free speech rights and 104 German origins of 62, 65, 67 horizontal effects of private rights and 153 implicit balancing 71, 79 incommensurability in 38, 40 incompleteness in analysis and 109, 113–14 intermediate scrutiny and 115, 117 judges finding ways to avoid use of 49–50, 59, 93, 97 negatives of alternatives to 49–50, 55 originalists rejecting 192n120 principled balancing 48, 105 raising standards of protection in 177–8 relative balancing 48 rule of law and 72–3 in strict scrutiny vs. proportionality analysis 98, 104, 106n57 transparency of 59, 120 undue burden standard and 118 Page 3 of 30

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Index in U.S. jurisprudence 96, 99n9, 103, 107–8, 125 variation in courts’ application of 59, 92–3 zone of proportionality and 138, 141–3 Barak, Aharon on balancing 41, 41n32, 46, 73, 105, 120, 180 Brazilian Federal Supreme Court influenced by 91 on diffusion of proportionality analysis 71 on judicial review 54 Kenyan High Court influenced by 94n165 on limitation clauses 33, 35 on necessity test 36, 75 on principled balancing 48 on proportionality analysis 39–40, 48, 74n68, 75–6 on qualified rights’ hierarchy 33n8 on suitability of means chosen 75 on zone of proportionality 138 Barroso, Luis 91–2 bear arms, right to 108, 120 Bedford (Supreme Court of Canada 2013) 132n13, 133 Beit Sourik (“Security Fence,” Supreme Court of Israel 2004) 47n46, 75–6 Benin 171 best-practice standards, diffusion of 16, 49, 59, 81, 91, 125 Big Mart (Supreme Court of Canada 1985) 70, 189 Black, Charles 154n99 Black, Hugo 104, 107n61 Bolivia 169, 182 Bomhoff, Jacco 96n2 Botswana 92, 94 Brandeis, Louis 104 Braunfield v. Braun (U.S. 1961) 105 (p.225) Brazil 169, 182 Federal Supreme Court and use of proportionality analysis 91, 181 Brennan, William J. 105–6, 116–17 Breyer, Stephen 120 Britain. See United Kingdom Burkina Faso 171 Burundian Journalists’ Union v. Burundi (East African Court of Justice 2015) 189 Burundi Press Law (2003) 189 Caldwell, Ernest 160 Califano v. Webster (U.S. 1977) 117n99 Califano v. Westcott (U.S. 1979) 117n99 Cameron, Edwin 80 Campbell, Jud 99, 100n13 Canada. See also Charter of Rights and Freedoms administrative law in 146–7 Alberta’s Human Rights Act and Individual Rights Protection Act 133–4, 160n120 balancing in 71–2, 72n50 Bill of Rights (1960) 69 British North American Act (1867) 69 Page 4 of 30

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Index constitutional politics in 128 delayed declarations of invalid statutes in 132, 132n13, 133 horizontal effect and proportionality analysis, use of 153–5, 158 influence on other international and regional courts 72–3, 77–8, 85–6, 88, 91, 139– 40 jurisdiction of apex court in 123–4 legislation’s compatibility with rights, statement upon introduction of bill in 135–6 legislative sovereignty model in 12, 12n35 minimal impairment as element of proportionality analysis in 36 Narcotics Act 70 non-discrimination norms within private law in 160 overriding constitutionally protected right in 93, 138 proportionality analysis, use of 2, 36, 69–73, 76, 80, 92, 153–5, 158, 195 Supreme Court (SCC) 12, 12–13n37, 69–73, 153–4, 157, 189 (see also specific case names) voting rights denied to incarcerated prisoners, unconstitutionality of law on 139– 40 Candia, Gonzalo 176n45 Cannabis (German Federal Constitutional Court 1994) 134 Carolene Products, United States v. (U.S. 1938) 104 case-or-controversy system 14, 16, 124, 130 Cassis de Dijon (Court of Justice of European Union 1979) 101 Central Europe 10n28 centralized model of specialized constitutional court 14–15, 14n43 Charles Mok (Hong Kong Court of Final Appeal 2010) 85 Charter of Rights and Freedoms (Canada) 12 adoption of 80 proportionality analysis used to adjudicate administrative law 146–7 proportionality analysis used to adjudicate qualified rights 69–73 provincial human rights codes in relation to 160 secondary picketing in light of free speech and free association rights 155 Section 1 (general limitation clause)33, 33n10, 69–72, 77 Section 11(d), 70 charters of rights. See also limitation clauses adjudication involving 24–5 as aspirational text 2 binding nature of 3 as blueprints for system of constitutional governance 50–1 comparative research on 6 completeness of justice system and 6–7 constitutional dialogues to determine implementation of (see dialogues between courts and lawmakers) in constitutions 11, 16, 30 criteria of validity and 9 duty of public officials to protect 33–4 effectiveness of 3, 131 as element of system of constitutional justice 9, 29, 162 entrenchment of 130–1 general liberty clause in 32 Page 5 of 30

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Index relational contracting examples and 19–20 similarities among domestic enactments 192, 196 similarities to international bill of rights 192–4, 196 Chaskalson, Arthur 77–8 checks and balances, system of 14. See also separation of powers doctrines child pornography 121–2, 122n119 Chile 23n67, 169, 182–3 Constitutional Court and use of proportionality analysis 90–2 (p.226) China administrative review, proportionality in 146 horizontal vs. vertical rights in 160–1 judicial protection of constitutional rights in 145 real estate contract dispute, use of proportionality by court to resolve 161n125 State Council 146 China Constitution 145 Art. 42(2) 160–1 civil conflict 24 Civil Rights Cases (U.S. 1883) 28 CJEU. See Court of Justice of European Union Cleburne, City of v. Cleburne Living Center, Inc. (U.S. 1985) 110n73 coercion as method of diffusion 60 Cohn, Margit 73n67 Colombia. See also Colombia Constitution abstract review in 130 conditional rulings of constitutionality in 133 constitution adopted as part of democratization process in 169 Constitutional Court of Colombia (CCC) and use of proportionality analysis 87–90, 92–3, 159, 181, 182n65, 184 deferred decisions of unconstitutionality in 132 German model for rights-based constitutionalism in 16, 68, 88 Inter-American Court on Human Rights referencing 183 judicial action required in light of legislative weakness in protection of constitutional rights in 159 required showing that measure promotes constitutionally protected values in 93 rights-based constitutionalism in 87–8 Spanish model for rights-based constitutionalism in 88 trustee court role in 87–8 Colombia Constitution (1991) 87–8 American Convention and 182, 182n65 Art. 13 89 Art. 16 32n6, 88 Art. 53.1 89 Art. 246 88 explicit and implicit limitation clauses 88 commercial speech 122 common law. See private law Commonwealth legal system model 12, 72–3 comparative constitutional law 5–6, 81, 184 compelling state interest 98, 105–6, 107n59, 114, 120 Page 6 of 30

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Index completeness. See system of constitutional justice Compulsory Membership (Inter-American Court of Human Rights 1985) 180n58 concrete review 15–16, 89, 129 conscience, freedom of. See religious freedom consensus analysis 175n42, 177–8, 182, 184–5 constitution. See also modern constitutional law commitment to respect and live under 9 as constituent assembly 18 definition of 8n21, 24 as element of system of constitutional justice 9 global constitutionalism, existence of  191–6 constitutional amendments rules governing process of 26–7, 27n79 trustee court rulings not amenable to change through 130–1 as way to nullify court rulings 20, 23 constitutional complaint procedure 15–16 constitutional courts. See also specific countries American or decentralized model of 14, 14n43 centralized model of 14 delegating enforcement-of-rights powers to 19 European framework of research on constitutional dialogues with 128 exclusive constitutional jurisdiction 14–15 mixed system of 13n40, 14n43 as negative legislators 45 in transnational system of justice 162 constitutional dialogues. See dialogues between courts and lawmakers constitutional governance 31, 50–4 charter of rights as blueprints for 50–1 proportionality balancing and 154–8 right to just governance 51–4 constitutionalism ECHR and 168 right to contest acts of public authorities and 54 structure of global constitutionalism 191–6 of U.S. Founding Era 99, 100n13 use of term and conceptualization of 9–10, 191–2 constitutional justice. See system of constitutional justice constitutional pluralism 193–6 constitutional revolution in France 25 (p.227) in Israel 28 in United States, civil rights legislation as 28 constitutional transformation 24–9 constitutional amendment process and 26–7 rights adjudication and 24–5 contracting rights 17–19, 84, 161n125. See also freedom of contract conventionality, doctrine of 185 coordinate construction 129, 132–7 corporal punishment of juveniles 79 Page 7 of 30

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Index Costa Rica 182 constitutional revision in 169 guidelines from IACTHR to protect rights of transgender persons and same-sex couples 185 Supreme Court 181 Supreme Court’s Constitutional Chamber 184–5 Côte d’Ivoire 171 Council of Europe 17, 165, 168, 174 Committee of Ministers 175, 179 countermajoritarian tendencies 53–4 Court of Justice of European Union (CJEU) first international trustee court 164n3 national courts to rule in accordance with 153, 165, 188n92 principle of mutual recognition articulated by 101 proportionality analysis, use of 68, 166–7, 184, 190n113, 194n125 Court of the Economic Community of West African States (ECOWAS) 94–5, 171, 186 Uniform Legal Framework on Freedom of Expression and Right to Information in West Africa (2010) 190 Craig v. Boren (U.S. 1976) 116–17 criminal procedure 79 criteria of validity 8–9, 11, 20 proportionality principle as 50, 165 cruel and unusual punishment 31n1, 78 Czech Republic Constitution, Art. 17 33n9 Dagenais v. Canadian Broadcasting Corp. (Supreme Court of Canada 1994) 157–8 death penalty, constitutionality of 77–8 decentralized model of judicial review 14n43, 14–15 defamation law 33, 94n165, 153, 156 deference doctrines 4, 31, 51, 56–7, 79, 93, 98, 109, 150, 174, 176, 179, 195–6. See also margin of appreciation doctrine deferential rationality 25 delegation of enforcement-of-rights powers to constitutional court 19 delegation theory 5, 6 deliberative engagement, duty of 21, 49, 132, 159 democratization 16, 23–4, 68, 80–1, 83, 179 Dennis v. United States (U.S. 1951) 104–5 deontological reasoning 57 Deportation II (German Federal Constitutional Court 1979) 150n90 derogation clauses. See limitation clauses Deutschland-Magazin (German Federal Constitutional Court 1976) 159n118 dialogues between courts and lawmakers 127–61 abstract review and 129–30 administrative institutions in 143–51 charter of rights and constitutional revision 130–1 compartmentalizing proportionality 145–8 coordinate construction of 129, 132–7 corrective revision stage as part of invalidating unconstitutional statute 136–7 determinants of court’s influence on legislative outcomes 129n6, 129–31 horizontal effect on relations between private parties 151–3 Page 8 of 30

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Index judiciary and private law 151–4 legislature’s role in 129–43 overbroad statutes and 140 rights in the balance 154–61 trustee courts’ role in 137–43 vertical effect on relations between citizen and state 151 veto power of court on parliamentary majority’s agenda 130 zone of proportionality and 132–3, 137–43 dialogues between European Court of Human Rights and national courts 178 Dicey, Albert 145 Dickson, Brian 70 diffusion 80–95, 167, 195. See also institutional isomorphism of best-practice standard 16, 49, 59, 81, 91, 125 coercion as method of 60, 95 ECTHR’s role in 174 effect of 50, 85 mimesis as method of 60, 71 normative consensus as method of 60, 71 of rights-based constitutionalism 16–17 strategic litigation leading to 94–5 discrimination cases 89, 107, 123, 133–4, 153, 160, 178, 184. See also specific types of discrimination (p.228) dispute resolution involving charter of rights 24–5 District of Columbia v. Heller (U.S. 2008) 108, 192n120, 120–1 diversity as factor 4–5 constitutionalism and 9–10 effectiveness of new constitutional regime and 23 Dolphin Delivery, RWDSU v. (Supreme Court of Canada 1986) 154n98, 155 Dominican Republic 169, 181–2, 182n65 Doré (Supreme Court of Canada 2012) 147, 147n74 Douglas, William O. 107n61, 111 draft card burning 113n88, 114n89 due process rights 31n1, 102, 107n58, 111, 179 Dürig, Günter 65 Dworkin, Ronald 55–6 EACJ. See East African Court of Justice East African Community Court 94, 186 East African Community treaty 187–9 Art. 6 171, 188–90 Art. 7.2 188 Art.  33.2 188n94 East African Court of Justice (EACJ) 171, 187–91, 188n92, 193 ECHR. See European Convention on Human Rights Economic Community of West African States (ECOWAS) Art. 1.7 190n115 Court (see Court of the Economic Community of West African States) ECTHR. See European Court of Human Rights Ecuador 90n148, 169, 182 effectiveness Page 9 of 30

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Index of charter of rights 3, 131 as construct 2, 5, 93, 167, 195 of horizontal effect’s use of constitutional rights 158–61 judicial power of constitutional lawmaking and 25 proportionality’s role in 80, 94, 174 regional human rights courts and 167–72 respect of public officials and organs of governance for system of justice 4, 167 trustee courts and 22–4, 164, 167, 172, 195 Egypt 23n67 elections. See also political context constitutional backsliding linked to results of 23, 85 independent candidates barred from competing in 186 party system 18, 23 elites’ role in creating constituent assembly 18 force as means to settle disputes among ruling elites 22–4 limiting effectiveness of trustee court 23 El Salvador 169, 182 embryo’s right to life 33 engagement with lawmaking officials 128, 131. See also dialogues between courts and lawmakers equal protection rights 104, 106–11, 106n53, 109n70, 110n73, 115–16, 120, 154, 180 erga omnes authority 162, 169, 173, 179, 186, 188 Eskridge, William 28 Europe/European Union (EU). See also Court of Justice of the European Union; European Convention on Human Rights; European Court of Human Rights; specific countries abortion laws in 135, 143 administrative review in 145 binding or strict interpretations of unconstitutional laws in 133 Charter of Fundamental Rights 68 constitutional justice required for membership in 17 German model of proportionality adopted in EU member states 16, 68–9 horizontal effects of private rights in 153 judicial review in 14, 14n43 market integration, principle of 101, 101n24 European Convention on Human Rights (ECHR) 2–3, 173–8 Art. 8 175 Arts. 8–11 175, 177 Art. 13 174 constitutional justice requirements of 17 domestic adoption of principles of 173–4 drafting gaps in 164 German model for rights-based constitutionalism in 68–9 interpretation of 165 judicial review and 15n45 limitation clause 71, 175, 177, 189 Protocol no. 11, 168–9, 173 UK courts interpreting statutes to conform to 12 Page 10 of 30

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Index European Court of Human Rights (ECTHR) 173–8 admissibility procedures 175 binding rulings 133, 169 (p.229) Commission of Human Rights (abolished 1998) 168 compared to Inter-American Court of Human Rights 169–70, 179, 181, 185 consensus analysis, use of 175n42, 177–8 dialogue with national courts 178 docket and case load 168–9, 174 influence of other international and regional courts on 140, 193–4 influence on other international and regional courts 71, 85, 88, 180, 183, 187, 189, 191 interpretation of ECHR by 165 legitimate purpose of challenged measure in 92–3, 175 margin of appreciation doctrine, use of 175–8, 175n42, 176n45 necessity review by 175 pilot rulings 175 pressing social need standard, use of 175, 177 proportionality analysis, use of 2, 162–3, 165–7, 174–8, 195 proportionality model of Germany adopted by 68–9, 92 raising standards of protection for rights 177–8 role of 162, 168–9, 173–4 suitability of means chosen as part of analysis by 175 trusteeship responsibilities of 173 Europe/European Union (EU) Charter of Fundamental Rights (EU) 68 ex ante vs. ex post rights determination 20 extra-legal factors, effect on evolution of constitutional law and politics 5 family life, right to 68, 183 federalism 19n57, 26 Federation of African Journalists v. The Gambia (Economic Community of West African States Court of Justice 2018) 190–1 felon disenfranchisement 79, 139–40 Ferejohn, John 28 fiduciary duty of trustee courts 21–2, 48, 131, 164 fighting words 122 Fisher, Louis 128 Føllesdal, Andreas 176n47 France administrative law model in 145, 145n62 adoption of charter of rights in 25 adoption of constitution in 11 Constitutional Council 25, 27–8 Fifth Republic’s Constitution (1958) 25 Fourth Republic (1946–58) 12 French Charter (1814) 10n28 “Fundamental Principles Recognized by the Laws of the Republic,” 27 parliamentary form of government in 11 Third Republic (1875–1940) 12 Frankfurter, Felix 105 Page 11 of 30

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Index freedom of assembly 32, 68, 85, 86n128, 180 freedom of association 180 Freedom of Association (France 1971) 27 freedom of contract 86, 107–8, 112 freedom of expression 33, 33n9, 68, 104, 113–14, 113n88, 121–2, 152, 155, 157–8, 167, 178, 181, 181n64, 189, 191. See also United States Constitution, First Amendment; specific courts and countries freedom of movement 180, 190n113 freedom of press 99, 104, 180, 189–91 Friedrich, Carl 10 Frontiero v. Richardson (U.S. 1973) 116 The Gambia 190–1 Gardbaum, Stephen 53n61, 192–3 gender discrimination 115–19, 115n92, 117n99, 160. See also sexual orientation discrimination; transsexuals Gender Identity (Inter-American Court of Human Rights 2017) 185nn77–8 General Agreement on Tariffs and Trade (GATT) 166n17 German Basic Law (1949) 66–7, 69 Art. 1.3 64 Art. 2.1 32n5, 32–3, 134, 148 Art. 2.2 139 Art. 3 159–60 Art. 5.2 64 Art. 12.1 66n23 Art. 19.2 64 as modern system of constitutional justice 64 neutrality in economic system and government regulation 112–13 German Federal Constitutional Court (GFCC) 37n20, 69. See also specific cases administrative courts, coordination and cooperation with 148–50 balancing test, use of 61, 157 creation of 64 Heck Formula and when deference should be accorded to lower court decisions  159 horizontal effect and proportionality analysis, use of 153–5, 158 IACTHR citing 184 (p.230) proportionality analysis, use of 35n16, 65–7, 71, 76, 92–3, 148–9, 157, 194n125, 195 rights-oriented approach of 64 unconstitutional statutes in, ordering legislature to amend or replace 132–3 Germany. See also German Basic Law; German Federal Constitutional Court; Prussia abortion laws in 142–3 absolutism in twentieth century in 10n28 administrative controls and fundamental rights in 62–3, 63n11, 92 administrative courts, statutory proportionality requirements for 148 Bavarian Constitutional Court 65 bound decisions in 149 Civil Code 67, 154–5, 159–60 constitutional amendment process in 26 Constitution of German Empire (1871) 63 Page 12 of 30

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Index criminalization of abortion in 41 Federal Administrative Court 150 human dignity in 31 indirect horizontal effect and proportionality balancing in 153 Intoxicating Substances Act (1981) 134 judicialization of legislative process in 67 labor courts, use of proportionality analysis 154, 154n102, 194n125 as model for other nations’ legal systems and for international and regional courts  16, 32n6, 67–9, 74–5, 78–9, 88, 91, 92, 139, 166 origins of proportionality in 2, 60–7, 92, 145, 148, 195 parliament seeking input from judicial branch on proposed legislation in 135 Polizeirecht (“Police Law”) in eighteenth century 61–2 private law claims using proportionality analysis in 153–4 Rechtsstaat principle in 65 Supreme Civil Court 160 third-party effect of constitutional rights in (Drittwirkung) 151n94, 155 Third Reich 61, 64 Weimar Constitution (1919) 64 Weimar Reichsgericht (Supreme Court) 64 GFCC. See German Federal Constitutional Court Ghana 171 Ginsburg, Ruth Bader 117, 120 global constitutionalism, structure of 191–6 globalization of proportionality 60 Goesaert v. Cleary (1948) 115n92 Golak Nath (Indian Supreme Court 1967) 26 governance. See also constitutional system of governance defined 2 right to just governance 51–4 Gray, Horace 102 Greater Boston Television Corp. v. FCC (U.S. D.C. Cir. 1970) 151n92 Grimm, Dieter 66 Guatemala 169, 182 Gunther, Gerald 106, 110n73 Habermas, Jürgen 55 Haiti 169, 182 Harlan, John Marshall 101–2, 104, 107–8 Hart, H.L.A. 8, 8nn21–2, 44 hate speech 25 Helfer, Laurence 190n113 Herrera-Ulloa v. Costa Rica (Inter-American Court of Human Rights 2004) 180 Hirst No. 2 (European Court of Human Rights 2005) 140n45 Hogg, Peter 71, 128 Holmes, Oliver Wendell 104, 107–8 Honduras 169, 182 Hong Kong Basic Law (1990) 85–6 Canadian model influencing use of proportionality analysis in 85 Court of Appeal (second-tier court) 85 Page 13 of 30

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Index Court of Final Appeal (CFA) 85 international influences on proportionality analysis in 85–6 Legislative Council electoral races 86 proportionality in 85, 92 SAR status and relationship to Beijing 85–6 horizontal effect on relations between private parties 151 balancing and 153 direct vs. indirect 152–3 effectiveness of constitutional rights use in 158–61 South African Constitution’s explicit guidance on 156 U.S. rejection of 154 Hoyt v. Florida (U.S. 1961) 115n92 Huang, Cheng-Yi 146, 150 Huifeng Industry Development Co. v. Harbin City Planning Bureau (Supreme People’s Court of China 1999) 146 human dignity, right to 13, 57, 78 human rights. See also rights adjudication; rights-based constitutionalism; specific type of rights enforcement of 1 (p.231) statutes and charters (see charter of rights; specific countries) transnational systems of justice enforcing 94–5 Hungary 23, 26, 131 Hutterian Brethren (Supreme Court of Canada 2009) 72 IACTHR. See Inter-American Court of Human Rights ICCPR (International Covenant on Civil and Political Rights) 171, 189, 191 imminent lawless action 122 implied repeal, doctrine of 12 incommensurability 38, 40, 56 incomplete contracting 18–19 regional conventions on human rights and 163–4 social contract and 62 India. See also India Constitution influence on other international and regional courts 86 jurisdiction of apex court in 123–4 proportionality analysis by Supreme Court 72–3 Supreme Court’s authority 26–7 (see also specific case names) India Constitution Art. 13 26 Art. 368 26, 27n78 Parliament’s power to amend 26–7 institutional isomorphism 49, 60, 71, 192 insurance model of judicial review 18 Inter-American Convention on Human Rights. See American Convention on Human Rights Inter-American Court of Human Rights (IACTHR) 179–85 case load 170 compared to European Court of Human Rights 169–70, 179, 181, 185 compulsory jurisdiction of 169 consensus analysis, use of 182, 184–5 Page 14 of 30

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Index deference to national courts 179 domestic apex courts required to apply proportionality analysis 181 free speech cases 167 influence of ECTHR on 170, 182–5, 183n69 influence on other international or regional courts 88, 91, 187, 189, 191, 193–4 interpretation of Convention by 165–6, 179 limitation of rights by 181n64 margin of appreciation, rejection of 179, 185, 185n76 pressing social need standard, use of 180 proportionality analysis, use of 94, 162–3, 167, 179–80, 183, 185 role of 162, 169–70 Special Rapporteur for Freedom of Expression 180–1 two-tiered system 170 UN HRC cited by 183, 185 interest groups, filing for abstract review 130 intermediate scrutiny 108, 115–18 International Court of Justice, Statute of, Art. 38(1)(c) 164n5 International Covenant on Civil and Political Rights (ICCPR) 167n22, 171, 189 International Covenant on Economic, Social and Cultural Rights 171 international human rights treaties. See specific treaties and conventions International Monetary Fund 17, 89 international organizations authoritarian regimes’ response to 19n58 promoting constitutional reform 17 soft law and treaty instruments raising standards of rights protection 183 interstate commerce, regulation of. See United States Supreme Court, dormant Commerce Clause cases in-vitro fertilization and right to life 184 Iraq 11, 11n32 Ireland 72, 72n54, 168 Irvin Toys (Supreme Court of Canada 1989) 71 isomorphism. See institutional isomorphism Israel administrative law case law in 73, 92, 145 balancing in 75–6 Basic Law: Human Dignity and Freedom (1992) 28, 73, 74 charter of rights in 28, 80 Defense (Emergency) Regulations (1945), Regulation 119, 73 German model for proportionality in 74–5 Knesset 28, 73–4 necessity review in 140 no codified constitution in 11, 73 proportionality in 2, 73–6, 80, 92, 145 Supreme Court (SCI) 11n30, 28, 37n20, 73, 76, 140 (see also specific case names) trustee court role in 76 Westminster model adopted in 73 Jackson, Vicki 106n57 Japan 23n71 Ji, Hailong 161n125 Page 15 of 30

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Index judicial abdication 109–13, 196 (p.232) judicial independence 23 judicial lawmaking 20, 25, 56, 67. See also legislation and lawmaking process judicial review abstract or preventive review 15–16 accountability and 52n60 centralized model of specialized constitutional court 14 concrete review 15–16 delegation theory and 6 differences between U.S. system and more modern systems of constitutional justice 123–4 as element of system of constitutional justice 9, 162 federalism and 19n57 of government decision-making 32 insurance model of 18 judicial lawmaking in (see judicial lawmaking) jurisprudence development and 22 models of American vs. European constitutional judicial review 14 sliding scale of review 120 tiers of review for rights claims 108 (see also intermediate scrutiny; rational basis test; strict scrutiny) Westminster model and 69 judicial supremacy 12, 30, 38, 41, 53–4, 57, 124, 137–8, 165 jurisdiction of apex courts 123–4 compulsory jurisdiction of regional courts 164, 164n3, 169, 171, 187 constitutionality of statutes, abstract vs. concrete review of 15–16 exclusive constitutional jurisdiction 14 jurisdictional pluralism 194 ombudsman system 16 rules of adjudication on 129 of trustee courts 25, 164 jurisprudence evaluation standards for 44 purpose of system of 22, 43, 167 raising standards of protection by referring to jurisprudence of higher-standard courts 183, 194 role in dialogue between judicial and legislative branches 131 jus cogens 183 justification burden of justification (qualified conception of rights) 13, 49, 120–21 presumptive right to 3 proportionality analysis and 56, 98, 119, 137 for restrictive legislation 53n65 rhetoric of justification to counter bias perception 43 scrutiny of 57, 98 (see also strict scrutiny) unconditional right to justification 53 Kantian constitutional theory 51n52 Katabazi (East African Court of Justice 2007) 188n91 Page 16 of 30

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Index Kaufmann, Erich 64 Kelsen, Hans 8n21, 25n76, 45, 130 Kenya 92, 94, 94n165 Kesavananda Bharati (Indian Supreme Court 1973) 26–7 Khumalo (Constitutional Court of South Africa 2002) 156 Kimel v. Argentina (Inter-American Court of Human Rights 2008) 180–1 Koraou (Economic Community of West African States Court of Justice 2008) 190n108 Korea. See South Korea Korematsu v. United States (U.S. 1944) 104n41 KRJ (Supreme Court of Canada 2016) 72 Krüger, Herbert 65 Kumm, Mattias 51, 53–5, 53n65, 122, 158, 193 Kuomintang party (KMT) 83 Kwasu (Economic Community of West African States Court of Justice 2017) 190n112 Kwok Hung Leung (Hong Kong Court of Final Appeal 2005) 85 labor disputes and constitutional governance 155, 160–1 Lamer, Antonio 157 Laos 11 Lash, Kurt 111n78 Latin America. See also specific countries abortion laws in 135, 143 abstract review in 130 amparo (constitutional complaint procedure) in 16 indirect horizontal effect and proportionality balancing in 153 new constitutions promulgated in 1980s and later in 169 proportionality, spread in 2, 90–2 rights-based constitutionalism in 81, 87–8 state-sponsored killings and disappearances in 179 torture, use of 179 transnational systems of justice in 94 (p.233) Law, David 146, 150 Lawson, Gary 99 Lawton v. Steele (U.S. 1894) 111n77 least restrictive means (LRM) test 4, 36, 47, 59, 80, 89, 93, 98 German origins of 65, 66–7 tests for legitimate purpose using 140n46 U.S. Supreme Court application of 101, 105, 107, 120 zone of proportionality and 138, 140–1 Lebach (German Federal Constitutional Court 1973) 157 legal positivism 8n21, 44–5 legislation and lawmaking process 27–9 abstract review of (see abstract review) alternatives offered for statutes found unconstitutional 55–7, 140 annulment of statute 27, 45, 47–8, 136 concrete review of (see concrete review) constitutional dialogues on 129–43 (see also dialogues between courts and lawmakers) coordinate construction and 129, 132–7 delayed declarations of invalid statutes 132, 132n13, 133 Page 17 of 30

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Index legitimate aim for (see legitimate purpose of legislation) legislative sovereignty model 11–12, 12n35. See also parliamentary form of government charter of rights and 25 demise of parliamentary sovereignty 11, 69–80 majoritarian-based systems and 54 principal-agent model and 20 legitimacy of state during transition to democracy 24 legitimate purpose of legislation 3, 8, 138–9, 139n39, 195 balancing combined into 82 justification of (see justification) as pro forma threshold inquiry 47 qualified rights and 32 rationality standard sufficient for 120 recast as proper method (truncated suitability analysis) 93 restricting more than necessary to achieve (see necessity review) Leib, Ethan 21 Leibholz, Gerhard 64 Lenaerts, Koen 10 Lerche, Peter 65 Letsas, George 176 Leung Chun Ying (Hong Kong Court of Final Appeal 2013) 85 libel. See defamation law life, right to (of embryos) 184 limitation clauses. See also specific countries, constitutions, and charters adjudication of 47 challenges to constitutionality of legislative acts under 51 incommensurability and 38 international courts and 166 lawfulness of government acts under 35 as power-conferring rules 34, 50 proportionality and 30, 69, 92 qualified rights and 3, 19, 32–4 Lin, Chien-Chih 83, 84n112 Lochner v. New York (U.S. 1905) 107–9, 124 loyalty, duty of 21, 49 Loyola High School (Supreme Court of Canada 2015) 147 Lüth (German Federal Constitutional Court 1958) 154n98, 155 MacCormick, Neil 44 majoritarian-based systems 53–4, 131n11, 135, 177–8 Makwanyane, State v. (Constitutional Court of South Africa 1995) 77–9 Malawi 171 Malaysia Barisan Nasional party 87 Federal Court 86–7 proportionality analysis in 86–7, 92, 95 Sedition Act 87 Mali 171 Manamela, State v. (Constitutional Court of South Africa 2000) 80 Page 18 of 30

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Index Manneh (Economic Community of West African States Court of Justice 2008) 190n109 Manning, John 99 Marbury v. Madison (U.S. 1803) 14, 124, 149 margin of appreciation doctrine 175–9, 175n42, 176n45, 185–7, 185n76, 195 marriage rights 79, 82, 84 Marshall, Thurgood 119–20 Mathews v. Eldridge (U.S. 1976) 107n58 Mat Shuhaimi bin Shafiei (Federal Court of Malaysia 2016) 86–7 Mazzuoli, Valerio de Oliveira 165–6n14 McAllister, Jacqueline 190n113 McGoldrick, Dominic 176n47 Mendes, Gilmar 91, 91n155 Mexico American Convention, courts instructed to follow 182, 182n65 Constitution, Art. 6 33n9 Institutional Revolutionary Party (PRI) 90 (p.234) Supreme Court and use of proportionality analysis 90, 92, 181 transition from one-party to pluralist party system in 169 mimesis 60, 71 minimal impairment. See least restrictive means test Minnesota v. Barber (U.S. 1890) 101 modern constitutional law 1, 51n51 absolute vs. qualified rights in 13 accountability and 52n60 amendment process and 26 basic features of 5–6 dynamic interpretation required by 192n120 incomplete contract approach in 18–19 legislating provisions and 27 liberal ideology and 17 proportionality’s development in context of 7, 92 purpose of 7–10 trustee courts and 21–2 Mohamad, Mahathir 86 Möller, Kai 51nn51–2, 52n58, 97n4 Mseto v. Tanzania (East African Court of Justice 2018) 189–90 Munn v. Illinois (U.S. 1877) 111n79 Murillo v. Costa Rica (Inter-American Court of Human Rights 2012) 184–5 mutual recognition, principle of 101 name choice, right to 84 National Coalition for Gay and Lesbian Equality (Constitutional Court of South Africa 1999) 139n35 natural law 45 necessity review 36–7. See also least restrictive means test; specific courts administrative courts giving emphasis to 148 alternatives offered for statutes found unconstitutional 55–7, 140 annulment of statute, allowing legislature other alternatives 47 balancing combined into 82 balancing test as subsequent step to 98 Page 19 of 30

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Index Barak on 36, 75 in Commonwealth family of legal systems 72 de facto deference to legislative judgments allowed by 79 Lerch distinguishing from balancing 65 overbroad statutes and 140 positive rights requiring integration with suitability test 89 preferred by courts over balancing 93 qualified rights and 181 in rational basis analysis 111 Svarez on 62 two-part test with suitability of means chosen 85, 89 use pre-dating proportionality analysis 61–3, 65, 83 zone of proportionality and 138, 140–1 negative rights 13, 19 neutrality in third-party dispute resolution 42 rhetoric of justification to counter bias perception 43 new constitutionalism 1–2 new remedies, judicial creation of 25 New Zealand accountability in 53 Canadian Supreme Court’s influence on proportionality in 72 human rights statutes adopted in 12, 131 legislation’ compatibility with rights, statement upon introduction of bill in 135–6 legislative sovereignty model in 12, 12n35 no codified constitution in 11 overriding constitutionally protected right in 138 proportionality in 72, 92 NGOs, amici briefs from 190 Nicaragua 169, 182 Nigeria 94 Njemanze (Economic Community of West African States Court of Justice 2017)  190n111 non-discrimination. See discrimination cases non-justiciability doctrines 195 North Korea 11 Oakes, Regina v. (Supreme Court of Canada 1986) 70–5, 77, 94n165, 147, 148, 154n98, 189 Obergefell v. Hodges (U.S. 2008) 108 O’Brien, United States v. (U.S. 1968) 113–14 obscenity 122 occupational freedom 65–6, 110–12, 141 ombudsman system 16 Orban, Viktor 23 O’Regan, Kate 80 Organization of American States 169 originalism 192n120 Orr v. Orr (U.S. 1979) 117n99 PA. See proportionality analysis Pan-African Commission 94 Page 20 of 30

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Index Panama 169, 181–2, 182n65 Paraguay 169, 182 (p.235) Pareto optimality 46–7, 58 parliamentary form of government agent role in 19, 21 in basic structure doctrine 26 demise of 11, 69–80 majority voting and capacity to override the courts 20, 20n59 as positive legislators 45 Pérez Pérez, Alberto 185n76 personality, right to free development of 24, 32, 33, 88, 148, 157 Personnel Administrator v. Feeney (U.S. 1979) 117 Peru adoption of new constitution in 169 Constitutional Court and use of proportionality analysis 90, 90n152, 181 IACTHR judgments as binding on state officials 182, 182n65 Petersen, Niels 59n1, 66, 66n30, 71, 79, 131n11 Pharmacy Case. See Apothekenurteil (GFCC 1958) Pike v. Bruce Church (U.S. 1970) 102, 103 Planned Parenthood v. Casey (U.S. 1992) 118, 143 pluralism constitutional pluralism 193–6 jurisdictional pluralism 194 source pluralism 194 Poland 23, 131 political context competitive party system 18, 23, 169 constitutionalism and 10 constitution forming contract with political elites 18 diffusion and 60 effectiveness related to political culture of country 23 elections (See elections) judicializing of 41, 82–3, 84 left-wing parties 19 legislative politics’ effect on constitutional dialogue 136 proportionality analysis as way to manage contentions of 49, 113 right-wing parties 19 separation of powers and 14 single-party dominated system of South Africa 79, 81 transnational rights protection and 172 political freedom of opinion, right of 89 political property rights 21 political question doctrine 4, 51, 174 popular sovereignty 18 positive rights 13, 33, 89 positivist legal theory. See legal positivism precedent, system of 22, 43, 169 pressing social need standard 175, 177, 180 presumption of constitutionality 55, 98 Page 21 of 30

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Index presumption of innocence 79 preventive review of statutes 15–16 primary rules 8, 9, 128 privacy, right to 33, 68, 84, 156, 181, 183 private law 151–4 balancing of proportionality analysis and 154–8 pro homine principle 165, 166n16 property rights 33n9, 102, 109–10, 112–13, 113n86 proportionality analysis (PA) 30–50, 55–8. See also balancing; specific courts and countries acceptance as common judicial procedure 1–3, 7, 92, 167, 195–6 adjudicatory purpose and 9 alternatives offered for statutes found unconstitutional 55–7, 140 benefits of 45–50, 97, 117, 125, 195–6 characterization of judges who reject 46, 195 as collective judgment of reason 54 compartmentalizing 145–8 criticism of 56–7, 57n78 cultural and politico-legal legacies, effect of diversity on 4–5 as doctrinal construct 4–5, 30, 49 doubled proportionality control 156 fiduciary duty of court and 21–2 flexibility and customizability of 47, 93 full version, use of 89–90, 100, 147, 167, 187 German origins of (see Germany) global diffusion of use of (see diffusion) hybrid versions of 93 judicial supremacy and 30, 53–4 justification for measures that infringe on rights 56, 98, 119, 137 (see also justification) least restrictive means (see least restrictive means) legislative process and 135 (see also legislation and lawmaking process) legitimacy and 31, 35–6, 42, 47, 165 necessity review 36–7 (see also necessity review) qualified rights and 32–4, 49, 98, 181, 195 reduction of harm to losing party as result of 46 respect of public officials and organs of governance for 4, 25, 94–5 (p.236) rights adjudication and 2, 30, 46, 92, 144 step-by-step judicial analysis of 34–7, 83 strategic considerations 41–50, 94–5 subtests 3, 31, 35, 92–3 (see also balancing; least restrictive means (LRM) test; necessity review; suitability of means chosen) transnational governance and 172–91 transparency of 49, 71 triggering event for 35 trustee courts using 34–5, 38, 48, 57, 195 unconstitutional laws, dealing with 133 (see also legislation and lawmaking process) variation in courts’ application of 60, 92–4, 161, 191 Page 22 of 30

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Index Weinrib on conditions to apply 3 zone of proportionality (see zone of proportionality) “proportionality stricto sensu (in the strict sense),” 4, 37, 56, 62, 65, 83, 113 Prussia General Law of 1794 (Allgemeines Landrecht—ALR) 63 Higher Administrative Court (Oberverwaltungsgericht) 63 necessity review and suitability analysis in 61–3 public goods addition to, considered in balancing test 37, 40 Colombian Constitutional Court (CCC) imposing obligations for 90 constitution’s creation of 18 German eighteenth-century philosophy and 61 rights yielding to 56 public interest litigation 188 public opinion’s role in dialogue between judicial and legislative branches 131n11 qualified rights 32–4 absolute rights vs. 13, 45 limitation clauses and 3, 32 margin of appreciation and 179 proportionality analysis and 34–7, 49, 98, 181, 195 relative importance of rights claims 119–21 R. v. See name of opposing party racial discrimination 29n86, 107, 107n59 Railroad Co. v. Husen (U.S. 1877) 100 raising standards of protection by referring to jurisprudence of higher-standard courts  177–8, 183, 194 rational basis test 51, 89, 98, 104n38, 109n70, 124, 174 confused area of law created by 110 judicial abdication and 109–13 “rational basis with bite,” 110, 116 U.S. Supreme Court’s relaxed approach to 110 rational policymaking 53 cult of rationality 57n78 Reed v. Reed (U.S. 1971) 115–16 Reference by High Court of Uganda (East African Court of Justice 2015) 188n92 Regina v. See name of opposing party Rehnquist, William 117 Reid v. Colorado (U.S. 1902) 101 relational contracting 19–20, 31 religious freedom 32, 68, 72, 78–9, 89, 105, 158, 178, 180 reproductive freedom, right of 33, 88, 91n158, 135 reputation, right to 84 res judicata 87 Ribeiro, Dilton 165–6n14 Riffo v. Chile (Inter-American Court of Human Rights 2012) 183–4 rights. See absolute rights; charter of rights; qualified rights; rights adjudication; rights-based constitutionalism; specific types of rights rights adjudication 13–16 administrative law, shared traits with 143–5 Page 23 of 30

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Index constitutional transformation and 24–5 proportionality and 2, 30, 46, 92, 144 third-party dispute resolution (TDR) and 44 transition to constitutional democracy and 24 U.S. Supreme Court’s reluctance to apply balancing in 107, 126 Rights and Accountability Project (Economic Community of West African States Court of Justice 2010) 190n110 rights-based constitutionalism 2, 7, 11 best-practice standards and band-wagon effects of adopting 16, 49, 59, 81, 91, 125 collapse of authoritarian regimes generating 16 constitutional pluralism and 193–5 contracting rights and 17–19 deference doctrines and 56 diffusion of 16–17, 125 duty to effectively protect rights 196 effectiveness of 22–3 global rights-based commons 193–5 (p.237) positive legislators and 45 proportionality as part of 80 trusteeship created by 20–1 rights ombudsman 16 Roberts, John 103 Roe v. Wade (U.S. 1973) 111, 115, 118, 142 Roh, Moo-Hyun, impeachment of 82–3 Romer v. Evans (U.S. 1996) 110n73 Rosenfeld, Michel 10 Rubin, Peter 106n55 rule of law balancing and 72–3 definition of constitutionalism under 10 effectiveness of new constitutional regime and 23 international organizations promoting 17 proportionality analysis as basic to 1, 66, 82, 145, 190 Rule of Recognition 8n22 rules of adjudication 8 constitutional adjudication and transition to constitutional democracy 23–4 courts as triadic dispute resolvers 42–3 jurisdiction and standing 129 Rwanda 171, 187 Sachs, Albie 78 same-sex marriage or partnership rights 79, 84, 108, 139, 185 Saudi Arabia 11 Sauvé No.1 (Supreme Court of Canada 1993) 140 Sauvé No. 2 (Supreme Court of Canada 2002) 139–40 Scalia, Antonin 103, 117, 192n120, 120 Scheppele, Kim Lane 16 Schollenberger v. Pennsylvania (U.S. 1898) 102n26 secondary rules 8, 9, 24 binding on government 128 Page 24 of 30

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Index in constitutions 34 international human rights instruments integrating into 192 systemic legitimacy grounded by 193 transformation of 25–6 secularism 26 Security Fence. See Beit Sourik (Supreme Court of Israel 2004) Seidman, Guy 99 Semenyih Jaya Sdn Bhd (Federal Court of Malaysia 2017) 87 separation of powers doctrines 14–15, 26, 174 sex discrimination. See gender discrimination sexual orientation discrimination 134, 178, 183, 183n69 Shapiro, Martin 42 Sharpe, R. v. (Supreme Court of Canada 2001) 122n119 Shelby County v. Holder (U.S. 2013) 29n88 Sherbert v. Verner (U.S. 1963) 106 Siegel, Stephen 107n59, 107n61 Singapore 95 Sitenda Sebalu (East African Court of Justice 2013) 188n97 Skinner v. Oklahoma ex rel. Williamson (U.S. 1942) 104n41 Slaight (Supreme Court of Canada 1989) 147 Slaughterhouse Cases (U.S. 1875) 111n78 Smend, Rudolf 64 social contract 61–2 social justice 188, 190 social norms 42–3, 152, 169 Souter, David 120 South Africa African National Congress (ANC) 80, 136 balancing in 78–9, 158 Canadian Supreme Court’s influence on proportionality in 72, 77–8, 139–40 charter of rights 77 compared to Germany, Canada, and Israel in use of proportionality 79 Constituent Assembly 77 Constitutional Court of South Africa (CCSA) and use of proportionality analysis  76–80, 92–3, 136, 138–40, 158 European law, influence in 78 German model for rights-based constitutionalism in 16, 68, 78, 139 improper purpose of legislation in 139–40 international influence of proportionality analysis from 79, 85, 88 jurisdiction of apex court in 123–4 limitations clause in 33n11, 77–8 proportionality in 2, 76–80 trustee court role in 76 well established system of justice in 186 South Africa Constitution 1983 version 16 1996 version 77 Section 7, 33n11 Section 8(2) and 8(3) 156, 158 Page 25 of 30

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Index Section 36(1) 78–9, 156 South America. See Latin America South Korea. See also South Korea Constitution Civil Code, Art. 809 82 Constitutional Court of Korea (KCC) and use of proportionality analysis 81–3, 92– 3, 141, 150 German model for rights-based constitutionalism in 16, 68 (p.238) Police Duties Act (1953) 150 Supreme Court (KSC) 150 trustee courts using proportionality analysis in 81 South Korea Constitution Art. 10 32n6 Art. 37 (general limitations clause) 81 revision of (1988) 81 Soviet Union 10n28 Spain amparo (constitutional complaint procedure) in 16 Constitution, Art. 33 33n9 constitutional amendment process in 26 Constitutional Tribunal 68, 184 as model for other nations’ legal systems 88, 91 Specific Constitutional Right (German Federal Constitutional Court 1964) 159n117 speech, freedom of. See freedom of expression standing requirements 25, 89, 125 rules of adjudication on 129 state action doctrine 154, 154n99 State v. See name of opposing party Stevens, John Paul 119–20 Stone, Harlan F. 104 Stone Sweet, Alec 128, 193 strict scrutiny 89–90 compared to proportionality analysis 98 U.S. Supreme Court, use of 96–8, 98n7, 102, 103–6, 104n41, 106n55, 110, 114–20, 122 Strong, William 100 structural judicial supremacy. See judicial supremacy Strydom (High Court of South Africa 2008) 158 suitability of means chosen 3–4, 175 balancing integrated with 84 Barak on 75 legitimate purpose subtest focusing on method as truncated form of 93, 139n39 positive rights requiring integration with necessity review 89 as pro forma threshold inquiry 47 qualified rights and 181 rational relationship between means chosen and ends pursued 36–7, 70, 111 two-part test with necessity review 85, 89 use pre-dating proportionality analysis 62–3, 65 zone of proportionality and 138–40 Sullivan, Kathleen 117 Page 26 of 30

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Index Suriname 169 suspect classifications 90, 107, 115, 117 Svarez, Carl Gottlieb 62–3 Sweezy v. New Hampshire (U.S. 1957) 105 Switzerland Federal Supreme Court 64, 64n15 symbolic speech, right to 113–14 system of constitutional governance. See constitutional governance system of constitutional justice 2, 10–12 ability to challenge public acts infringing on freedoms under 7, 20 charter of rights at heart of 31 Colombian Constitutional Court (CCC) creating 90 completeness of 6–7, 22, 50 constitutions without judicial mode of rights protection 11 differences between U.S. system and more modern systems 123 ECTHR’s case load and 174–5 elements of 9 EU admission and 168 third-party dispute resolution (TDR) and 42n35, 44 transnational systems of justice 162 Westminster model and 69 Taiwan Administrative Court 83 Administrative Procedure Act (1999), Art. 7 144 balancing in 83 compared to South Korea 83–4 Constitutional Court (TCC) and use of proportionality 83–4, 83n104, 84n116, 92, 149 German model for rights-based constitutionalism in 16, 68 legitimate purpose subtest in 93 proportionality in administrative acts required in 144 Supreme Administrative Court 149–50 transition to constitutional democracy 83 trustee courts using proportionality analysis in 81 Taiwan Constitution (1947) 83 Art. 22 84, 84n116 Art. 23 83 Tanganyika Law Society v. Tanzania (African Court on Human and Peoples’ Rights 2013) 186–7 Tanzania 94, 171, 186–7, 189–90 Constitution 189 Criminal Procedure Act 190 Tarnopolsky, Walter 71 (p.239) TenBroek, Jacobus 106n53 Thayer, James 55 Third Gender (German Federal Constitutional Court 2017) 139n38 third-party dispute resolution (TDR) 42–3 difference of constitutional justice from 44 third-party effect of constitutional rights 151n94, 155 Thomas, Clarence 103 Page 27 of 30

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Index torture prohibition 13, 179, 190 transnational systems of justice 162–96 consensus analysis, use of 177–8 effectiveness of 167–71 proportionality analysis, use in international courts 166–7, 172–91 (see also European Court of Human Rights; Inter-American Court of Human Rights) regional human rights and charters 163, 192 structure of global constitutionalism 191–6 trusteeship and lawmaking 163–6 transparency 49, 59, 71, 97, 119, 120, 141, 189, 190 transsexual individuals gender registration of 41, 139 protection of rights of 185 treaty-based international regimes 162–3 reversals of trustee court rulings, treaty revision required for 164 Treaty Establishing the East African Community. See East African Community treaty Treaty of Rome (1957) 68 Triepel, Heinrich 64 Tristan Donoso v. Panama (Inter-American Court of Human Rights 2009) 181 trustee courts 20–2, 21nn62–3, 30. See also specific courts acting in trustee capacity adjudication as means for constitutional transformation and 24–5, 137 adjudication of limitation clauses 166 basic structure doctrine and 27 criteria used to identify in international context 163–6 effectiveness of 22–4, 164, 167, 172, 195 enforcement role of 51, 54 fiduciary duty of 21–2, 48, 131, 164 proportionality analysis, use of 34–5, 38, 48, 57, 195 reversals of rulings by treaty revision 164 strict scrutiny vs. proportionality analysis in 98 transnational courts, relationship with 163 unconstitutional statutes, methods of handling and dealing with legislative body  132, 135 zone of proportionality and 137–43, 195 Tunisia 171 Turkeman v. Minister of Defense (Supreme Court of Israel 1993) 74 Tussman, Joseph 106n53 UDHR (Universal Declaration of Human Rights) 171, 191 Umuhoza v. Rwanda (African Court on Human and Peoples’ Rights 2017) 187 undue burden standard 118, 118n111, 143 UN Human Rights Committee (UN HRC) 167, 167n22, 170, 182, 183, 185, 187, 191 United Haulers v. Oneida-Herkimer Solid Waste Management Authority (U.S. 2007)  103 United Kingdom accountability in 53 administrative law and common law rights in 145 Canadian Supreme Court’s influence on proportionality in 72 English administrative law, principles of 99 House of Commons removing House of Lords’ power to veto legislation 11 Page 28 of 30

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Index Human Rights Act (1998) 12 human rights statutes adopted in 12, 131 influence on other international and national courts 86 legislation’s compatibility with rights, statement upon introduction of bill in 136 legislative sovereignty model in 12, 12n35 no codified constitution in 11 overriding constitutionally protected right in 138 proportionality analysis, use of 2, 72, 72n56 United Mizrachi Bank (Supreme Court of Israel 1995) 74–5, 140n47 United States 96–126 abstract review in 130n9, 143 administrative review in 151 balancing in 96, 99n9, 103, 107–8, 125, 126 case-or-controversy system in 14, 124, 130 Civil Rights Act (1964) 28 constitutional amendment process in 26 due process in 31n1 hard look review in 151, 151n92 incompleteness in analysis in 109, 113–14 instability in rights review in 109, 114–19 judicial abdication in 109–13 (p.240) judicial review in 14–15 (see also judicial review) origins of proportionality in 97–108 as outlier to use of proportionality 95–6, 125 qualifying rights in 119–21 savings constructions of unconstitutional statutes in 133 scope of rights in 121–3 Smith Act 104–5 Universal Military Training and Service Act (1948) 113n88 Voting Rights Act (1965) 28, 29n88 United States v. See name of opposing party United States Constitution Art. I, sec. 8 99n10 Art. I, sec. 8, c. 3 100n14 Art. III 124 First Amendment 13, 97n5, 99, 104–6, 114, 114n89, 121, 122, 154 Second Amendment 120 Third Amendment 121 Fourth Amendment 99 Fourteenth Amendment 28–9, 29n86, 111, 116 Fifteenth Amendment 29, 29n88 adoption of 11 amendment process for 26 Commerce Clause and dormant Commerce Clause 96–7, 99–103, 118 Due Process Clause 111, 111n78 Equal Protection Clause 111, 111n78, 115–16 Necessary and Proper Clause 99 Privileges and Immunities Clause 111n78 United States Supreme Court. See also specific case names Page 29 of 30

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Index dormant Commerce Clause cases 96–7, 99–103, 118 First Amendment cases 97n5, 154 horizontal effect rejected by 154 IACTHR citing 184 intermediate scrutiny, use of 108, 115–18 jurisdiction of 15 objections to adoption of proportionality analysis in 123–5, 154 proportionality analysis, use of 91, 96 Second Amendment cases 120 state action rule and 154, 154n99 strict scrutiny, use of 96–8, 98n7, 102–6, 104n41, 106n55, 110, 114–20, 122 Universal Declaration of Human Rights (UDHR) 171, 191 unreasonableness tests 25. See also Wednesbury unreasonableness standard Uruguay 169, 181–2 Vanberg, Georg 131n11 Venezuela 90n148, 182n65 vertical effect on relations between citizen and state 151 veto power of court on parliamentary majority’s agenda 130 Vienna Convention on the Law of Treaties 183n69 Vietnam 11 Virginia Military Institute (VMI) exclusion of women, U.S. Supreme Court case (1996) on 117 von Berg, Günther Heinrich 62 Von Hannover No.2 (European Court of Human Rights 2012) 176 von Krauss, Rupprecht 65 voting rights 106n58, 139–40 Vriend v. Alberta (Supreme Court of Canada 1999) 133–4, 160n120 Walker, Neil 9 Wednesbury unreasonableness standard 4, 51, 55–6, 69, 98, 145, 147, 174 Weinrib, Jacob 1, 3, 51nn51–2, 52–4, 56 Westminster model 69, 73, 124. See also legislative sovereignty model; parliamentary form of government Wholesale Travel (Supreme Court of Canada 1999) 71 Williamson v. Lee Optical of Oklahoma (U.S. 1955) 110–12 Winkler, Adam 119n112 working hours case and freedom of contract 107 World Bank 17 World Trade Organization Appellate Body (WTO-AB) 166–7, 166n17 Zamir, Itzhak 74 Zheng, Xiaojian 161n125 Zimbabwe 92, 94 zone of proportionality 48, 58, 132–3, 137–43, 195 margin of appreciation as transnational analogue of 176 Zuma, State v. (Constitutional Court of South Africa 1995) 77, 77n76

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