Proportionality and Rights Inflation

Abstract

Proportionality is the most important principle of constitutional rights law around the world, but our theoretical grasp of both the principle itself and the conception of rights of which it is the crucial part is still emerging. The goal of this chapter is to contribute to the scholarly discussion on proportionality by exposing and exploring an important link between proportionality and rights inflation, that is, the phenomenon that increasingly relatively trivial interests are protected as rights. My claim is that proportionality is not only compatible with rights inflation, but that it necessitates it: under a theory of rights that endorses proportionality, there is no coherent way to avoid the conclusion that all autonomy interests should be protected as rights, and this includes interests in engaging in trivial and even immoral activities. Although this intuitively implausible result may strengthen some in their doubts about or rejection of proportionality, this chapter will proceed by showing that, while my argument, if correct, necessitates the revision of some widely held views about the nature and justification of human and constitutional rights, there is nothing incoherent or unattractive about such a view. On the contrary, rights inflation and proportionality are part and parcel of an attractive conception of constitutional rights.