V. DEFINING THE BOUNDARIES FOR PROPORTIONALITY REVIEW
I do not argue that the United States should embrace proportionality across the board. For one thing, the U.S. Constitution does not provide as clear a textual basis as exists in Canada for the adoption of proportionality as a pervasive test. (339) The U.S. Supreme Court is not in the position of the Canadian courts interpreting the 1982 Charter, nor the German Court interpreting the 1949 Basic Law; the United States has no new charter of rights subject to interpretation for the first time. And the United States is a large country, with highly decentralized opportunities for judicial review in multiple court systems; a greater need may exist for categorical rules to achieve acceptable levels of consistency in the law (even if the Supreme Court were to expand its docket). Moreover, where reasonably well-functioning lines of law exist, developed over time, there may be insufficient reason to unsettle the law. Not all rights protected by the Constitution involve the kinds of principles that can best be applied through ideas of proportionality. Some rights may be better understood as concrete rules, requiring particular procedures to legalize the government's use of coercive power. (340) Other rights can be better viewed as normatively nonderogable guarantees. (341)
Finally, even when rights have components concerned with promoting proportionate government conduct, case-by-case application of proportionality standards may not be the best approach; formal application of a categorical rule over the course of cases may result in a better group of decisions overall. (342) Given the draw of consistency in adjudication, moreover, rules are likely to emerge even from case-by-case applications of a proportionality standard; (343) and what some call "definitional balancing" or "categorical balancing" might be reconceptualized to reflect conceptions of proportionality in light of the purposes of the right and its implementation in a decentralized system of justice. The goal of proportionality in government action, in the sense of justice and good governance by actual institutions, may sometimes be better served by more categorical rules. (344) How then should judges determine whether an area calls for a more categorical, or case-by-case application of proportionality standards?
A. Different Rights, Different Roles, Different Texts
Not all rights have the same conceptual structure. (345) Nor do all rights play the same role within the constitutional system. Some rights, like those associated with the Establishment Clause, have been viewed by some as concerned primarily with "excluded reasons" for government action. (346) Doctrine implementing rights, like those secured by the Fifth Amendment Takings Clause, may on occasion draw on proportionality principles to analyze nonphysical actions of government that are claimed to constitute takings, (347) but at the same time treat even minor permanent physical invasions as per se takings for conceptual or historical reasons. (348) Further, the text of that right specifically provides the remedy for when a taking of property occurs--that is, payment of just compensation. (349)
The First Amendment's protections of freedom of speech and association function as broad guarantors of democracy, securing freedom of political competition; they prohibit government conduct motivated by a desire to suppress dissent; and they secure a host of individual expressive freedoms. The First Amendment is also arguably emblematic of a particular form of constitutional identity for the United States. (350) Application of proportionality analysis in an individual case-by-case way might be considered inconsistent with the symbolic importance of treating the First Amendment as providing strong protections. But there is no conceptual obstacle to providing strong rights protection through proportionality analysis by treating a government purpose to suppress ideas as per se illegitimate and by treating the value of freedom of expression as presumptively stronger than reasons for suppression in the "proportionality as such" stage. Still, categorical statements of presumptive rules might be thought to accomplish this in ways more consistent with symbolic or expressive aspects of this amendment (and its "shall make no law" text). But such categorical rules--including categorical exclusions for regulation for obscenity (351) or fighting words (352)--can themselves be informed by considerations of proportionality. The possibility of identity-reinforcing benefits in framing First Amendment jurisprudence in the form of presumptive categorical rules does not answer what those rules should be or what exceptions to a categorical presumption against content-based regulation should be recognized.
Use of proportionality doctrine to review the reasonableness of a search is a different matter than its use to review free speech claims. The Fourth Amendment's text protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." (353) Strong considerations of the rule of law and of popular conceptions of justice would support a proportionality approach to some Fourth Amendment issues now governed by categorical rules. Some years ago a scholar wrote: "When an officer acts reasonably, it would torture the English language to condemn his action as an unreasonable search." (354) Likewise, when an officer acts "unreasonably," as the officer did in Atwater, it tortures any popular sense of what the Fourth Amendment means to find no violation. To treat the Fourth Amendment as favoring categorical rules to the same degree as the seemingly more absolute language of the First Amendment is to suggest that the text does not matter. (355) And to assume that the proliferation of categorical rules will help constrain rather than liberate official discretion of police officers may be more heroic than realistic. (356)
B. Remedial Constraints
Adjudications of liability are always nested in particular remedial systems. The remedies available or required, and their consequences, may have constraining effects on how courts are willing to define the underlying right. (357)
The Exclusionary Rule
In the United States, Fourth Amendment remedial rules requiring exclusion of evidence have been applied, at least for a time, in a seemingly categorical manner. (358) By contrast, in Canada the consequence of finding a violation of Charter rights is not necessarily exclusion of the evidence: under Charter Section 24, courts decide, case by case, whether admitting the evidence would "bring the administration of justice into disrepute." (359) The apparent rigidity of the U.S. exclusionary rule may thus militate against more generous interpretation of the right because of the consequences to criminal justice administration. Yet proportionality approaches might also support modifications in the U.S. approach to the exclusionary rule. (360)
William Stuntz suggested that the absence of attention to proportionality--including the "blindness to differences among crimes"--is one of the deepest problems in Fourth Amendment law. (361) The trans-substantive doctrine of the Fourth Amendment, he argued, created a "reasonableness" gap in the application of the Fourth Amendment's substantive standard. (362) Stuntz also suggested that while the U.S. version of the exclusionary rule serves many useful purposes, the remedy has adversely affected the crafting of substantive Fourth Amendment doctrine and misdirected resources away from more fundamental questions of guilt or innocence. (363) Given the number of existing exceptions to the exclusionary rule, it is possible that more might be gained than lost by adopting a more proportionate approach both to the substantive standards of the amendment and, possibly, even to the consequences of illegality. (364)
Distinct remedial challenges are posed by successful equal protection claims, as their redress may require changes adversely affecting nonparties. For example, if a benefit is made available on terms found discriminatory, there may be options to equalize down, as well as up. (365) Remedial complications may help explain why courts that apply proportionality principles in equality cases do so more deferentially in evaluating challenges to economic or commercial regulations. (366)
Given respect for democratic decision making, interests in the stablity of law, and concern for the reasonable expectations of third parties, there are reasons for caution in the application of equal protection standards to the great mass of legislation. (367) Indeed, in Washington v. Davis, (368) the Court rejected disparate impact based on race as a trigger for strict scrutiny, expressing concern that many statutes could not meet the standards of justification required by strict--then usually fatal--scrutiny. Experience with proportionality review elsewhere suggests that equal protection review could be implemented in a more proportionate way, one that does not automatically invalidate laws with such disparate impacts and that can recognize differences in the severity of impacts, especially on historically disadvantaged groups. (369)
Proportionality in equal protection review resonates with Justice Thurgood Marshall's "sliding scale" view of equal protection law. (370) In Dandridge v. Williams, the Court used relaxed "rational basis" review to uphold a state welfare law imposing a cap on benefits for families with dependent children that had the effect of giving less per child for children in families above a certain size. (371) For Justice Marshall, who dissented, there were differences of constitutional magnitude between classifications affecting businesses and classifications affecting poor children. These differences could be explained by reference to proportionality and a form of...