Jud Mathews & Alec Stone Sweet, All Things in Proportion? American Rights Review and the Problem of Balancing

• Publication year: 2011

ALL THINGS IN PROPORTION? AMERICAN RIGHTS REVIEW AND THE PROBLEM OF BALANCING

Jud Mathews* Alec Stone Sweet**

ABSTRACT

This Article describes and evaluates the evolution of rights doctrine in the United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict over whether, when, and how courts balance rights is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part I provides an overview of how constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part II recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part III demonstrates that the “tiered review” regime chronically produces pathologies that have weakened rights protection in the United States and undermined the coherence of the Supreme Court’s rights jurisprudence. PA, while not a cure-all for the challenges faced by rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review—rational basis, intermediate review, and strict scrutiny—have, at various points in their evolution, contained core elements of proportionality. In Part IV, we argue that the Supreme Court can and should cultivate a version of PA rooted in American constitutional traditions and values.

* Visiting Assistant Professor, University of Illinois College of Law.

** Leitner Professor of Law, Politics, and International Studies, Yale Law School. The authors would like to thank participants in the Yale Law School faculty workshop for helpful comments on a draft of this paper.

INTRODUCTION 798

1. PROPORTIONALITY AND STRICT SCRUTINY: AN OVERVIEW 802

   1. Balancing 804

   2. Proportionality and Judicial Power 806

   3. Strict Scrutiny 811

2. ROOTS OF PROPORTIONALITY IN U.S. RIGHTS REVIEW 813

   1. The Dormant Commerce Clause 814

   2. Strict Scrutiny and Rights Protection 824

   3. Assessment 833

3. PATHOLOGIES OF TIERED REVIEW 836

   1. Abdication 837

   2. Incompleteness 844

   3. Instability 847

      1. Sex Equality and Equal Protection 848

      2. Undue Burdens and Abortion Rights 853

      3. Juvenile Curfew and Equal Protection 854

      4. Evaluation 859

4. ALL THINGS IN PROPORTION? 864

   1. Bringing Proportionality Back In 864

   2. Objections 870

CONCLUSION 874

INTRODUCTION

In the United States, disagreement runs deep over the proper role for balancing in constitutional rights review: over whether, when, and how courts should turn to balancing. Nor is the problem a new one. Past struggles over the merits of balancing are etched into our constitutional caselaw.1 American

rights doctrines are a tangle of different tests, some requiring the court to “balance” or “weigh” factors, and others taking the form of categorical constitutional rules.2 This mix reflects, in part, the changing fortunes of balancing, which have waxed and waned over the years.3 In the current

1. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 964 (1987); Kathleen M. Sullivan, Categorization, Balancing, and Government Interests, in PUBLIC VALUES IN CONSTITUTIONAL LAW 241, 241–44 (Stephen E. Gottlieb ed., 1993).

2. See Aleinikoff, supra note 1, at 964–71 (canvassing constitutional balancing tests).

3. See infra Part II; see also Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1288–89 (2007) (noting that the Supreme Court adopted a balancing approach to First Amendment claims that

   was quite speech protective in the 1940s, which was replaced by a more deferential balancing approach in 1949). Of course, the diversity of legal tests in American constitutional law also reflects, in part, the diversity

   Supreme Court, conflicts over its legitimacy regularly flare into view; today, a new struggle over balancing is coming to dominate the politics of rights in America.4

   
   

   The picture looks quite different elsewhere. In contrast to the United States, constitutional courts in legal systems around the world have converged on a method for adjudicating rights claims—proportionality analysis (PA)—an analytical procedure with balancing at its core. In the past half-century, PA has become a centerpiece of jurisprudence across the European continent, as well as in common law systems as diverse as Canada, South Africa, Israel, and

   the United Kingdom.5 PA, which began as an unwritten set of general

   principles of law, has evolved into a standardized doctrinal framework that courts can apply across substantive areas of law. Today, judges have raised proportionality to the rank of a fundamental, constitutional principle, which they deploy to manage rights claims, including conflicts between constitutional rights. PA has also been adopted by the most powerful international courts, including the European Court of Justice, the European Court of Human Rights,

   and the Appellate Body of the World Trade Organization.6 In a previous

   article, we elaborated a theory of why judges are attracted to PA; we traced the

   
   

   in the structure of rights found in the Constitution. Some rights lend themselves easily to formulations as constitutional rules (e.g., “no quartering of soldiers”), and others are more easily read to invite balancing tests (e.g., due process).

4. In District of Columbia v. Heller, 554 U.S. 570 (2008), Justices Scalia and Breyer engaged in an

   unusually acerbic argument about the appropriate methodology to employ in review of a District of Columbia measure that banned handguns in the home and required that other firearms be rendered inoperable. Writing for a five-member majority, Justice Scalia focused on the early history of the United States in order to show that the Second Amendment possessed a categorical, rule-like structure. Id. Once the Court determined that the Second Amendment guaranteed an individual right to bear arms for self-defense, the law was struck down. Id. at 635. On the issue of balancing, Justice Scalia stated that the Second Amendment, like the First, “is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew,” yet Justice Scalia also claimed: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.” Id. at 634–35. For his part, Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg in dissent, asserted that a “sort of ‘proportionality’” balancing approach is regularly used in “various constitutional contexts, including election- law cases, speech cases, and due process cases.” Id. at 690 (Breyer, J., dissenting). Advocating an “interest- balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests,” Justice Breyer then adopted a relatively standard version of three-stage proportionality analysis to show why the District of Columbia’s ban should be upheld. Id. at 689–90, 693–719. For extended discussions of Heller’s debate over balancing, see Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84

   N.Y.U. L. REV. 375 (2009); Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law, 46 SAN DIEGO L. REV. 367 (2009).

5. See Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47

   COLUM. J. TRANSNAT’L L. 72 (2008).

6. See id. at 138–59.

   framework’s global diffusion outward from Germany after World War II; and we showed that adopting PA serves to enhance the importance of rights, and of judicial authority, within policy processes otherwise dominated by nonjudicial officials.7

   
   

   This Article takes a fresh look at alleged American exceptionalism in the field of rights review, from the perspective of proportionality. It complements our previous study of the global diffusion of PA by focusing comparative attention on American experience and practice. Our analysis shines new light on American doctrinal developments and challenges the image of the United States as an outlier. Strikingly, we find that U.S. courts did develop frameworks for rights review that resembled PA, starting in the nineteenth century. The Supreme Court first derived the functional equivalent of PA as a test for state restrictions on trade under the dormant Commerce Clause. And in the mid-twentieth century, strict scrutiny review emerged as a rights-favoring balancing framework with pronounced similarities to PA. It turns out that American judges chose proportionality in the past and introduced it into our doctrinal DNA.

   
   

   But this heritage is sometimes obscured in current rights jurisprudence and scholarly discourse. The nearest analogue to PA today—the closest thing we have to a common rubric for reviewing claims across different substantive areas—is the set of standards that makes up tiered scrutiny.8 Not only do PA

   and tiered review share certain core elements but, we argue, in a head-to-head comparison, PA has clear advantages. Far from balancing rights away, PA can protect rights more consistently and coherently than can tiered review. The American approach limits the flexibility of judges in the face of complexity, falsely portrays adjudication as a mechanical exercise in applying law that is

   akin to a...