FEATURE CONTENTS INTRODUCTION I. PROPORTIONALITY IN U.S. CONSTITUTIONALISM AND ABROAD A. Proportionality Principles Already Recognized in U.S. Constitutional Law B. Proportionate Government as a Goal of Constitutional Design C. Proportionality Elsewhere: The United States in Comparative Perspective II. OF OLDER TEXTS, CLAUSE-BOUND INTERPRETATION, AND NEGATIVE PRECEDENTS III. BENEFITS OF PROPORTIONALITY REVIEW FOR U.S. CONSTITUTIONAL LAW A. Regulating Police Behavior Under Constitutional Norms 1. Atwater v. City of Lago Vista and Fourth Amendment Case Law 2. A Canadian Comparison B. "Strict Scrutiny" and the First Amendment C. Theoretical Benefits of Proportionality Review in Deciding Rights Claims 1. Structured and Transparent Reason-Giving with Broad Justificatory Appeal 2. Bridge Between Courts and Legislatures 3. Justice, Law, and Judgment 4. Process Failures Warranting Heightened Scrutiny IV. OBJECTIONS AND RESPONSES A. General Objections to Proportionality as a Standard of Review B. Arguments from Lack of Fit with U.S. Constitutionalism V. DEFINING THE BOUNDARIES FOR PROPORTIONALITY REVIEW A. Different Rights, Different Roles, Different Texts B. Remedial Constraints 1. The Exclusionary Rule 2. Equal Protection 3. Criminal Sentencing C. Fragile Rights, Fragile Regimes CONCLUSION INTRODUCTION
"Proportionality" is today accepted as a general principle of law by constitutional courts and international tribunals around the world. (1) "Proportionality review," a structured form of doctrine, now flows across national lines, a seemingly common methodology for evaluating many constitutional and human rights claims. (2) The United States is often viewed as an outlier in this transnational embrace of proportionality in constitutional law. (3) Yet some areas of U.S. constitutional law embrace proportionality as a principle, as in Eighth Amendment case law, (4) or contain other elements of the structured "proportionality review" widely used in foreign constitutional jurisprudence, (5) including the inquiry into "narrow tailoring" or "less restrictive alternatives" found in U.S. strict scrutiny. (6)
Justice Stephen Breyer has suggested that there are other areas in which the appropriate standard of judicial review would involve examining the proportionality of government regulation. (7) For example, in United States v. Alvarez, (8) Justice Breyer's concurrence, joined by Justice Kagan, associated proportionality review with intermediate scrutiny and applied this standard to evaluate a First Amendment challenge to the Stolen Valor Act. (9) In his dissent in District of Columbia v. Heller, (10) Justice Breyer explicitly invoked the idea of proportionality as a guide to permissible regulation under the Second Amendment. (11) This explicit invocation of proportionality led some scholars to begin to consider, critically, the prospects of proportionality review, as it has developed elsewhere in the world, being more fully embraced in the United States. (12)
Given developments within and outside the United States, the time is ripe to take a fresh look at proportionality, both as a general principle in constitutional analysis and as a structured doctrine of potential benefit to discrete areas ofU.S. constitutional law. In 1987, T. Alexander Aleinikoff criticized U.S. constitutional law for its overreliance on balancing in doctrines like strict scrutiny and in cases like Tennessee v. Garner (13) or Mathews v. Eldridge, (14) where the Court aimed to strike a balance among different interests. (15) Other work soon followed, contrasting more categorical and rule-like approaches, on the one hand, and standards, on the other. (16) The scholarship of the late 1980s may have influenced case law in some areas towards more categorical rules. (17) But these earlier U.S. debates could not have been informed by the subsequent course of proportionality review in other countries. Foreign courts' experience with proportionality review casts new light on these enduring questions in ways that suggest that U.S. constitutional law would benefit from a moderate increase in the use of proportionality.
Proportionality can be understood as a legal principle, as a goal of government, and as a particular structured approach to judicial review. As a principle and as a goal of constitutional government, proportionality is a "precept of justice," (18) embodying the idea that larger harms imposed by government should be justified by more weighty reasons and that more severe transgressions of the law be more harshly sanctioned than less severe ones. (19) Proportionality as a principle is embodied in a number of current areas of U.S. constitutional law: for example, in Eighth Amendment "cruel and unusual punishments" and "excessive fines" case law; as a limit imposed by the Due Process Clause on the award of punitive damages; and in Takings Clause cases requiring "rough proportionality" between conditions on zoning variances and the benefits of the variance to the property owner. In each of these areas, the principle of proportionality imposes some limit on otherwise authorized government action, a limit connected to a sense of fairness to individuals or a desire to prevent government abuse of power. Proportionality is centrally concerned with how, in a "democratic society, ... respect for the dignity of all men is central," (20) reflected in "our Nation's [longstanding] belief in the 'individuality and the dignity of the human being.'" (21)
Proportionality as a structured legal doctrine is used by some (not all) courts that treat proportionality as a general principle. In countries like Germany, Canada, and Israel, courts use a similar multi-part sequenced set of questions; (22) elsewhere, such questions are considered but in a less sequenced way. (23) In Canada, for example, structured proportionality review begins with attention to the scope of what a right is intended to protect; if a right has been infringed, the inquiry turns next to the authority for the action, and to the importance and legitimacy of the government purpose. If an infringement on interests protected by a right is shown, and if the challenged action has been "prescribed by law" sufficiently precisely and for a legitimate and sufficiently important purpose, then the constitutionality of the means used are examined through a three-fold inquiry into: (a) rationality; (b) minimal impairment; and (c) proportionality as such. (24) Several of these criteria correspond with elements in U.S. "strict," "intermediate," or "rational basis" scrutiny: the need for a sufficiently important or "compelling" government purpose; the rational connection required between the means chosen and the end; and the "minimal impairment" inquiry into whether there are less restrictive means towards the same goal.
Structured proportionality analysis in countries like Canada, Germany, or Israel includes an additional stage--"proportionality as such"--asking whether the intrusion on the challenger's rights can be justified by the benefits towards achieving the important public goal. This step calls for an independent judicial evaluation of whether the reasons offered by the government, relative to the limitation on rights, are sufficient to justify the intrusion. While this step is sometimes referred to as involving "balancing," the "proportionality as such" question in structured proportionality doctrine differs from "balancing" tests that tend to focus primarily on quantification of net social good, as in Dennis v. United States (25) or Mathews v. Eldridge. (26)
Take Canada as an example of structured, sequenced proportionality analysis. First, "proportionality as such" is a part of a doctrine that, as a whole, prioritizes the right, putting the burden of justification on the government. (27) In this respect, structured proportionality analysis differs from "multi-factor" analyses of proportionality, as one sees in some countries, including South Africa, (28) or from some U.S. "striking a balance" case law. Second, Canadian-style proportionality review is a logically sequenced set of inquiries that limits the need to consider whether the government interests justify the intrusion on interests protected by rights. It does so by first examining whether the challenged action is authorized by law, and then whether the government's purpose is sufficiently important to serve as a basis for limiting the right at all. If these first tests are met, Canadian proportionality review examines the rationality and necessity of the means chosen, all before reaching the final "proportionality as such" inquiry. In this way, if the means chosen are not suitable or necessary to advance the government's interest, the case can be resolved at one of these stages: the courts need not reach the "proportionality as such" question unless there is a genuine conflict between the government's interest and the interests protected by the right. (29) Third, "proportionality as such" returns courts to considering both the infringed-on right and the government's purposes, not just in terms of their theoretical gravity, but in terms of the relative weight or bearing of the government's reasons in relation to the harm to the challenger's rights, in a particular context and in light...