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
17 Pages Posted: 5 May 2016 Last revised: 6 May 2016
Date Written: March 14, 2016
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.
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