Proportionality Outside the Courts (With Special Reference to Popular and Political Constitutionalism)
Vicki Jackson & Mark Tushnet, eds., Proportionality: New Frontiers, New Challenges (Cambridge University Press, Forthcoming)
20 Pages Posted: 26 May 2016 Last revised: 9 Jun 2016
Date Written: January 22, 2016
As used in this paper, “proportionality” names a protocol for use in deciding questions of the constitutionality of laws. The protocol is typically understood to consist of a four- or five-step order of decisional march, of which there are multiple close-kindred versions in circulation. Debates about the virtues, vices, and variations of the protocol and its deployment routinely construct the theater of action as a court of law engaged in judicial constitutional review. Adjudicative use of the protocol is what we think of as the central case. An aim of this paper is to achieve some first steps towards figuring out what relevance, if any, the protocol of proportionality might have for “extended” cases (as we may call them) of constitutional discourses outside the courts. I try here to think about the protocol’s pertinence, if any, to political-practice idealizations in which other political actors displace independent judiciaries as sole or final arbiters of constitutional compliance.
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By Mark Tushnet
By Erin Delaney