All Things in Proportion? American Rights Doctrine and the Problem of Balancing

Abstract

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part III recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in Dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part IV demonstrates that the “tiered review” regime chronically produces pathologies that have weakened rights protection in the United States, and undermined the coherence of the Supreme Court’s rights jurisprudence. PA, while not a cure-all for the challenges facing rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review - rational basis, intermediate review, and strict scrutiny - have, at various points in their evolution, contained core elements of proportionality. In Part V, we argue Supreme Court can and should develop a home-grown version of PA, based on its existing case law and American constitutional traditions and values, and we respond to objections to the argument.

Keywords: constitutional law, balancing, rights, proportionality, comparative law, strict scrutiny, dormant commerce clause, equal protection, freedom of speech