Balancing, Proportionality, and Constitutional Rights

In the theory and practice of constitutional adjudication, proportionality review plays a crucial role. At a theoretical level, it lies at core of the debate on rights adjudication; in judicial practice, it is a widespread decision-making model characterizing the action of constitutional, supra-national and international courts. Despite its circulation and centrality in contemporary legal discourse, proportionality in rights-adjudication is still extremely controversial. It raises normative questions—concerning its justification and limits—and descriptive questions—regarding its nature and distinctive features. The chapter addresses both orders of questions. Part I centres on the justification of proportionality review, the connection between proportionality, balancing and theories of rights and the critical aspects of this connection. Part II identifies and analyses the different forms of proportionality both in review, as a template for rights-adjudication, and of review, as a way of defining the scope and limits of adjudication

What is a political constitution?

The question—what is a political constitution?—might seem, at first blush, fairly innocuous. At one level, the idea of a political constitution seems fairly well settled, at least insofar as most political constitutionalists subscribe to a similar set of commitments, arguments and assumptions. At a second, more reflective level, however, there remains some doubt whether a political constitution purports to be a descriptive or normative account of a real world constitution, such as Britain’s. By exploring the idea of a political constitution as differently articulated by J.A.G. Griffith, Adam Tomkins and Richard Bellamy, this essay explores why the normativity of a political constitution may be indistinct and ill-defined, and how compelling reasons for this indistinctness and ill-definition are to be found in the very idea of a political constitution itself. A political constitution is here conceived as a ‘model’ which supplies an explanatory framework within which to make sense of our constitutional self-understandings. The discipline of thinking in terms of a model opens up a critical space wherein there need not be some stark, all-encompassing choice between constitutional models, which, in turn, allows for more subtle understandings of Britain’s constitution as neither exclusively ‘political’ nor ‘legal’

What is an original constitution?

This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond one’s immediate grasp. Recognising this potential, I reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query explored is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments, and any attempt to select among them will be vulnerable to criticism. Despite differences between originalists, three commands and commitments can fairly be attributed to originalism without raising too much contest: the original constitution is written at the founding and changed only by the amendment procedure it sets out, is law insofar as it provides rule-like prescriptions, and occupies a delimited domain, leaving the rest to democratic activity. The model of an original constitution here elaborated seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions

Legal reasoning and Bills of Rights

The ideal of the rule of law speaks differently to law-makers and law-appliers. The judge, being the legal official tasked with the application of law by the court, is not in the lawmaker’s position of choosing what, legally, ought to obtain, but rather is tasked with furthering, by administering, what, legally, already obtains. This demarcation of responsibilities rests on the ability of the law-maker to settle authoritatively moral-political questions in such a way as to render possible the artificial techne of legal reasoning. Bills of rights are unusual law-making acts insofar as they deliberately fail to settle moral-political questions under law by declining to specify the general right ‘P has the right to x’. How, then, have judges sought to satisfy their law-applying role in relation to disputed claims of rights? The approach shared by judges in Europe and much of the Commonwealth is to interpret the open-ended rights of bills of rights to include nearly all possible instances of conduct that could be related to the right, with the consequence that nearly all legislation, including legislative specifications of open-ended rights, could be held to infringe the bill of rights. In turn, the legality of legislation turns on judiciallycreated standards of proportionality and balancing, which lack the discipline afforded by technical legal reasoning. As a consequence, judges have assumed the function of law-makers, with all of the associated challenges to the rule of law when law-applying institutions make law in the very moment the legal subject is before them

Proportionality and absolute rights

What is the relationship between absolute rights and the principle of proportionality? Proponents of proportionality in human rights law adopt one of two answers to this question: proportionality is inapplicable to absolute rights or absolute rights are no more than generalised predictive conclusions of proportionality analysis. Both answers share the following in common: proportionality is incompatible with absolute rights. That incompatibility is a function of the dominant conception of rights in proportionality analysis, a conception that divorces rights from the relationships between persons constitutive of rights and right relations. My argument begins by reviewing how absolute rights earn their claim to being absolute in part because they identify duties held by persons not to perform certain acts (sec. I). The relationship between absolute rights and the specification of rights is explored next by reviewing the ways in which the doctrine of proportionality struggles with absolute rights (sec. II). This review highlights how rights are imperfectly constituted by proportionality proponents (sec. III) and in need of proper specification so as to align their normative force and scope (sec. IV). This account of specified rights as candidates for absolute status is then defended against criticism by Aharon Barak and Kai Möller (sec. V), before exploring how the specification of rights is secured both by morality and by law (sec. VI)

Proportionality, balancing, and the cult of constitutional rights scholarship

Constitutional rights’ scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral reasoning