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Is Proportionality Analysis Consistent with Originalism?

Diritto Pubblico Comparato Ed Europeo, Vol 31 No 3 (2017)

San Diego Legal Studies Paper No. 17-308

8 Pages Posted: 8 Nov 2017 Last revised: 9 Nov 2017

Michael B. Rappaport

University of San Diego School of Law

Date Written: 2017

Abstract

While it is often thought that proportionality analysis (PA) and originalism are inconsistent with one another, this essay argues that the two approaches do not necessarily conflict. The reason is that originalism and PA are focused on different things. Originalism is an interpretive method that attempts to determine and apply the original meaning of a constitution. PA, by contrast, is a method mainly for analyzing rights under the fundamental law. If the original meaning of the constitution requires PA, then the two approaches will coincide. If the original meaning requires something other than PA, then the two will conflict.

The real question, then, is not whether the two approaches conflict or coincide in general, but whether the original meaning of a particular constitution requires or permits PA. This essay, which is part of a symposium on originalism published online in the Italian Law Journal Diritto Pubblico Comparato Ed Europeo, develops these points. It starts by showing that originalism is not necessarily inconsistent with PA. It then explores the changes in originalism in recent years and some of the different types of originalism. It then explains how several constitutions throughout the world, that do not explicitly allow PA, might or might not, depending upon the details, be understood to require or permit PA.

Keywords: Proportionality analysis, originalism, balancing, constitutional rights, original intent, original public meaning, original methods, comparative constitutional law

JEL Classification: A00, A10, K10

Suggested Citation

Rappaport, Michael B., Is Proportionality Analysis Consistent with Originalism? (2017). Diritto Pubblico Comparato Ed Europeo, Vol 31 No 3 (2017); San Diego Legal Studies Paper No. 17-308. Available at SSRN: https://ssrn.com/abstract=3067619

Michael Rappaport (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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