U.S. Constitutional Law, Proportionality, and the Global Model

Forthcoming in Vicki Jackson and Mark Tushnet (eds.), Proportionality: New Frontiers, New Challenges, Cambridge University Press, 2016

LSE Legal Studies Working Paper No. 06/2016

17 Pages Posted: 5 May 2016 Last revised: 6 May 2016

See all articles by Kai Möller

Kai Möller

London School of Economics - Law Department

Date Written: March 14, 2016

Abstract

Following the global success of the principle of proportionality in human and constitutional rights adjudication, there is now an emerging debate among academics and judges in the United States as to whether proportionality ought to be introduced into U.S. constitutional law. My goal in this paper is to correct what I see as a misleading simplification in this discussion, namely the view that the United States could introduce proportionality while leaving the other features and characteristics of its constitutional rights jurisprudence intact. I argue that if proportionality is adopted, coherence requires that the other features of what in previous work I have labelled “the global model of constitutional rights” be embraced as well: rights inflation, positive obligations, socio-economic rights, and horizontal effect. Thus, proportionality is not just an isolated standard of review but part and parcel of a conception of rights that must be adopted or rejected as a whole.

Suggested Citation

Möller, Kai, U.S. Constitutional Law, Proportionality, and the Global Model (March 14, 2016). Forthcoming in Vicki Jackson and Mark Tushnet (eds.), Proportionality: New Frontiers, New Challenges, Cambridge University Press, 2016 ; LSE Legal Studies Working Paper No. 06/2016. Available at SSRN: https://ssrn.com/abstract=2747222 or http://dx.doi.org/10.2139/ssrn.2747222

Kai Möller (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/kai-moller.htm

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