Limitations on Constitutional Rights: The Logic of Proportionality
27 Pages Posted: 29 Aug 2009 Last revised: 16 Feb 2012
Date Written: August 2009
Most modern constitutional rights instruments subject the rights they protect to limitation. Insofar as these Charters and Conventions are justiciable, they have conferred on courts the power and responsibility to interpret not only the rights granted, but also the limitations applicable. Subjecting rights to limits acknowledges the prospect of conflict between normative considerations in the human rights arena. Determining what other considerations can compete with rights and when they may succeed is the central task of adjudicating rights limitations. Courts and legal commentators have adopted the 'proportionality principle' as the method for working through conflicts between rights and other governmental objectives. This paper analyzes the logical function of the steps in a proportionality‐based assessment of a rights‐infringing provision, especially against the backdrop of the kind of causal and policy complexity that is common in modern governance. The ultimate point is to demonstrate that a proportionality test tells us very little about how to resolve constitutional conflict. Rather, it serves simply to make it clear whether there is an unavoidable conflict between a right and governmental objectives, and if so, exactly where the conflict lies. In other words, the proportionality 'test' works better to diagnose conflict than to resolve it. This leaves all the important questions about how such conflicts are to be resolved still be answered.
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