Proportionality's Reductio Ad Monitum

Abstract

This review essay focuses on Paul Yowell’s recent argument against entrenching bills of rights, along with his ‘second-best’ case for institutionally reforming constitutional courts to resemble quasi-legislative bodies (i.e. Kelsenian courts). The essay argues that Yowell’s case against entrenchment relies on the premise that constitutional rights adjudication tends to collapse into proportionality analysis. This premise is questioned by exploring how alternative techniques of rights adjudication, such as originalism and H.L. Black’s textualism, could provide “internal constraints” against the judicial use of proportionality analysis. My claim is that the plausibility of such techniques qualifies Yowell’s case against entrenchment and casts his argument for reforming courts to resemble quasi-legislatures in the light of a reductio. The reductio is to a monitum, or warning against the judicial use of proportionality, reasoning about rights and the need to explore techniques by which the judicial use of proportionality reasoning can be constrained. The essay first reviews Yowell’s arguments (II), then critiques his thesis that rights adjudication collapses into proportionality analysis (III), and concludes by evaluating how the possibility of legally constrained rights adjudication affects his central arguments (IV).

Keywords: Paul Yowell, proportionality, rights, constitutional design, interpretation, originalism, textualism