American Rights Jurisprudence Through Canadian Eyes
68 Pages Posted: 3 Jun 2020 Last revised: 9 Feb 2021
Date Written: February 24, 2020
The U.S. Supreme Court’s application of varying tiers of scrutiny to different constitutional rights has been widely criticized for severing rights from any clear connection with justice. One school of thought holds that this could be cured by importing or expanding the role for “proportionality analysis” in U.S. constitutional rights doctrines. American proponents of proportionality such as Jamal Greene, Vicki Jackson, and Supreme Court Justice Stephen Breyer have argued that U.S. courts could more transparently respect the connection between rights and justice by following the example of Canadian courts in reasoning about the proportionality of laws as “justified infringements” of rights. Furthermore, proportionality analysis, a kind of “intermediate scrutiny for all”, is thought to foster a more reasonable and democratic rights discourse.
This article argues that proportionality analysis may not be the cure its American proponents hope for. Comparisons between American and Canadian constitutional rights cases suggest that proportionality style reasoning conceptually devalues and distorts the connection between rights and justice. In contrast, the alternative concept of rights as absolute relations of justice appears to more transparently value constitutional rights.
The article then turns to the prospective institutional effects of proportionality in the American context. A rough sketch shows that the concept of courts allowing the state to proportionality override rights appears to be as scattered across different American doctrines and tiers of scrutiny as the concept of specifying the scope of rights as absolute. The mixed record of proportionality in U.S. rights doctrines recommends drawing comparisons to Canada, where proportionality is employed under a uniform doctrine. Comparing the effects of proportionality in the U.S. and Canada indicates that this approach institutionally disrupts the democratic settlement of rights disagreements in three ways. First, proportionality analysis appears to inflate the number of rights conflicts and intensify the rhetoric of those seeking to vindicate them. Second, in many cases proportionality undermines the classic justification for entrenching rights in law and subjecting them to independent judicial review by allowing rights to be overridden according to the moral reasoning of judges. Third, hopes that proportionality might lead to more democratic dialogues negotiating the meaning of rights between courts and legislatures should be checked by how the use of proportionality analysis by Canadian courts has discouraged legislative responsibility for constructing rights. Interestingly, at least one prominent American example (Employment Division v. Smith and the Religious Freedom Restoration Act) suggests that treating rights as absolute trumps can encourage legislative responsibility for constructing the scope of rights.
These conclusions are primarily negative, but the article ends with two positive lessons: The first lesson is that rights should be thought of as absolute trumps, even if they are subject to reasonable disagreement about the scope of their requirements. The second lesson is that ordinary statutory rights, such as the rights articulated by the Religious Freedom and Restoration Act, should be recognized as potentially contributing to the scope of absolute constitutional rights. This could help promote a more democratically reasonable way for American institutions to settle disagreements about rights. These lessons could help reform the devaluations, distortions, and disruptions afflicting both American and Canadian rights jurisprudence.
Keywords: proportionality, tiers of scrutiny, rights as trumps, absolute rights, dialogue, U.S. bill of rights, Canada, Charter of Rights, Jamal Greene, Vicki Jackson, RFRA, Employment Division v. Smith, City of Boerne v. Flores
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