Legislative Inconsistency and the 'Smoking Out' of Illicit Motives
17 Pages Posted: 19 Aug 2015 Last revised: 25 Aug 2015
Date Written: August 17, 2015
US Constitutional law is often perceived to be an exceptional appearance in the landscape of comparative constitutional law. One main difference that is identified is that the US Supreme Court refuses to apply the proportionality test that is a central doctrinal instrument of fundamental rights jurisprudence almost everywhere else. This paper tries to show that this difference is, at least in part, overstated. Even proportionality courts do not exclusively rely on proportionality. This paper analyzes consistency arguments that are common in the case law of several proportionality courts. It examines cases from five different apex courts, arguing that the main function of consistency considerations is the “smoking out” of illicit motives. The paper first shows that the “smoking out” of illicit motives is a frequent element of the strict scrutiny test of the US Supreme Court. It then analyzes the function of consistency arguments in the jurisprudence of proportionality courts. It draws on examples from the UK Supreme Court, the Canadian Supreme Court, the German Federal Constitutional Court, the European Court of Justice, and the South African Constitutional Court. These courts use legislative inconsistency is an indication that the legislature also pursued different aims than the ones which were stated explicitly. In particular, the parliamentary majority may have been captured by interest groups, or it might have had incentives to discriminate against societal minorities.
Keywords: consistency, coherency, proportionality, comparative constitutional law, strict scrutiny, capture, Germany, Canada, South Africa, United Kingdom
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