The Unmasking of Balancing and Proportionality Review in U.S. Constitutional Law

18 Pages Posted: 12 Dec 2017

See all articles by Mark Kende

Mark Kende

Drake University Law School

Date Written: June 19, 2017


U.S. constitutional law is frequently described as formalistic. For example, the U.S. is one of the few nations where originalism is taken seriously as an interpretive method. This method sometimes involves searching through 18th Century American dictionaries to see how key words in the Constitution were defined to answer questions today. Moreover, conservative politicians constantly beat the drum against “judicial activism,” supposedly seeking a strictly construed Constitution. Conservative scholars and judges can be part of this chorus (though sometimes they are the real judicial activists). Alexander Bickel highlighted the “passive virtues.” Herbert Wechsler doubted the correctness of Brown v. Board of Education because it was not based on “neutral principles.” Free speech case law is supposedly categorical, and equality law purportedly depends on three scrutiny levels. Foreign law’s influence is frowned upon by several Justices. And the U.S. Constitution supports individualistic liberty with no affirmative socio-economic rights, only negative civil and political rights, as well as strong principles of state sovereignty. This symposium paper, however, seeks to unmask the flexibility, functionalism and other factors that lie behind this pretense of formalism.

Specifically, this paper insists that American constitutional law often is, and should be pragmatic, purpose oriented, and contextual. Facts and evidence should matter, not out of date abstractions. Indeed, many of those who defend the formalist conservative view are actually masking flexible balancing analysis and proportionality review. Moreover, the paper argues that unmasking and openly balancing would make U.S. constitutional law more coherent and enhance the U.S. Supreme Court’s fading reputation.

Suggested Citation

Kende, Mark, The Unmasking of Balancing and Proportionality Review in U.S. Constitutional Law (June 19, 2017). 25 Cardozo Journal of International and Comparative Law (JICL) 417 (2017), Available at SSRN:

Mark Kende (Contact Author)

Drake University Law School ( email )

27th & Carpenter Sts.
Des Moines, IA 50311
United States
515-271-3354 (Phone)
515-271-1958 (Fax)


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