The Politics of Proportionality

Abstract

In this review of Jamal Greene’s How Rights Went Wrong, we raise a series of questions about proportionality review as a model for adjudicating rights conflicts. The first is whether proportionality is justified as a matter of ideal theory. Even if it is well applied, is this approach normatively attractive? A second question is which institutions ought to apply this form of review—courts, legislatures, executive officials, or some other democratic bodies? A third is how proportionality works in practice, under nonideal conditions. Greene’s account also leads us to ask about the relation between two aims that seem to motivate much of his argument for proportionality, namely, reducing the level of conflict in our society and achieving a better balance of rights and interests. In short, proportionality promises to deliver more peace and more justice. Our last question is whether implementing proportionality review today would require significant trade-offs between these ends. In addressing these questions, our aims are mainly analytical, separating out various types of considerations that might count as reasons for supporting proportionality review. But we also consider whether proportionality should be adopted as a progressive reform strategy under polarized political conditions. The answer may turn on whether compromises for the sake of reducing social conflict could lead, paradoxically, to less peace and less justice.

Keywords: proportionality, constitutional rights, judicial decisionmaking, polarization, Supreme Court