Proportionality and Constitutional Governance

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.