Proportionality: Constitutional Rights and Their Limitations.

• Author: Huscroft, Grant
• Position: Book review

PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS. By Aharon Barak. (1) New York, N.Y.: Cambridge University Press. 2012. Pp. xxvi + 611. $55.00 (paper).

The rule of law requires that state action that limits rights be justified in judicial review proceedings. Proportionality analysis is the best means of determining justification for rights limitations. Courts are uniquely well positioned to conduct proportionality analysis and should not defer to the other branches of government. Judicial review is democratic and courts should not be concerned about its legitimacy. Aharon Barak is a staunch proponent of judicial review and these are some of the claims he makes in Proportionality: Constitutional Rights and their Limitations, his contribution to the burgeoning literature on proportionality. Proportionality is an analytical framework used by courts in many countries in determining whether or not limitations on the exercise of rights are justified, and therefore constitutional. Barak's agenda is ambitious: he is, as he describes it, "attempting] to provide a universal understanding of the concept of proportionality in constitutional democracies" (p. 4). According to Barak, proportionality analysis can be used to resolve the most pressing problems a country may face--even threats to the continued existence of the country itself. Can Israel erect a security fence (3) or limit family reunification involving non-Israeli spouses (4) in an attempt to protect its citizens from terrorism? On Barak's account the judiciary can, and must, answer these questions and more without any concerns about the legitimacy of judicial review.

Barak is a jurist of considerable distinction whose legacy is admired by some and abhorred by others. To some he was the exemplary wise jurist who helped protect individual rights and keep state power in check; to others he was an activist judge who usurped democratic power. (5) Views about his legacy differ widely, but there is no doubting his importance. Under his leadership the Supreme Court of Israel established the constitutional stature of Israel's Basic Law: Human Liberty and Dignity (1992), (6) and the decisions he wrote in interpreting and applying the Basic Law have left an indelible stamp on the law of Israel. (7) Now in his retirement, Barak writes for an international audience. Although he acknowledges his predecessors in proportionality scholarship, and in particular the work of Robert Alexy, (8) Barak is keen to demonstrate his differences with them and to promote his own approach to proportionality analysis.

Barak exalts the courts as the ultimate guardians of constitutional rights and downplays the many and profound differences that exist between countries that have adopted bills of rights and proportionality review. (9) The book is a tour of constitutional law, with Barak discussing case law and secondary literature from a wide range of countries including Australia, Canada, Germany, Ireland, Israel, India, New Zealand, South Africa, and the United States, with references to constitutions and statutes from Albania, Moldova, Portugal, Romania, Spain, Switzerland, and Turkey along the way. Few will be familiar with the full breadth of the material cited, so one has to take Barak's account of the law on faith. (10) But there is reason for caution: Barak affects an easy familiarity with matters of great subtlety and nuance in jurisdictions in which he has neither experience nor expertise. (11)

Barak invites readers to draw a familiar conclusion: elected legislators are either insufficiently concerned about rights or are ignorant of them, and are prone to making reactionary judgments in the face of crises real and imagined. Thus, it falls to judges to protect democracy by requiring that governments justify their actions. In Barak's world, legal justification--justification in judicial review proceedings--is all that really matters and there is no room for doubt about its importance. Nor is there any reason to doubt the legitimacy of judicial review and, as a result, no reason for judges to limit its scope or to be deferential in exercising judicial authority. "[I]t is essential to understand," he insists, "that, once a legal system has chosen--either explicitly or implicitly--to recognize the institution of judicial review of the constitutionality of statutes, the critique leveled at the adoption of judicial review in the first place should not emerge again when judicial review is applied" (p. 382). Courts simply must determine whether limits on rights are justified and, if they are not, simply must strike them down. To fail to do so is to abdicate judicial responsibility.

Barak argues that proportionality is the best means to make sense of all of this--the best approach to determining whether or not limits on rights are justified and the best means of protecting constitutional rights--and sets out a detailed approach to each step in the analysis. For all of the pretense, however, proportionality analysis suffers from the same basic problem as all other approaches to judicial review: it cannot provide answers that cannot reasonably be denied. Judicial review is problematic no matter what approach to rights analysis is adopted, and proportionality analysis gives rise to a unique range of problems that Barak cannot overcome.

The problems begin with the rigid bifurcation of definition and justification on which proportionality analysis is premised. Rights must be defined before justification for limits on them can be assessed, but no matter how broadly a particular right is defined the real protection it affords depends on how easy or difficult it is to justify the establishment of limits on the right. (12) As we will see, the importance of the justificatory inquiry establishes an incentive for courts to minimize or even avoid questions of constitutional text and its interpretation at the definitional stage--the traditional focus of judicial review. As the focus of judicial review shifts the scope of rights expands, and with expanded rights comes an expansion in the scope of judicial review, as more and more state action is found to establish limits on the rights the courts have expanded. But while proportionality analysis leads to an expansion of rights and broadens the scope of judicial review, it limits the bases on which limits on rights may be justified. It prescribes an ostensibly objective, evidence-based assessment that all but bars the state from defending rights limitations on moral bases. (13) Barak is comfortable with this state of affairs but there is no reason the rest of us should be. It is nothing to which we agreed--or would have agreed--in establishing a democratic constitutional order.

WHAT RIGHTS DO WE HAVE?

The first question that must be asked in any rights-based constitutional order is: what rights do we have? This ostensibly simple question is not likely to be answered by the text of a bill of rights--at least, not definitively--because the text of bills of rights is worded vaguely. In order to determine whether a particular right is protected by a bill of rights, courts must determine what the vaguely worded text of a bill of rights means. Only after this has occurred can they go on to determine whether a particular right has been limited by state action, and only then does the burden of justification arise.

Barak pays more attention than many proportionality proponents to questions of constitutional interpretation and reiterates the "purposive" approach to constitutional interpretation he detailed in previous work. (14) There is something here for everyone. On one hand, Barak favors progressive, evolving conceptions of constitutional rights (pp. 46-47); (15) on the other hand, he disavows overly expansive interpretation: the constitution "is not like clay in the sculptor's hands" (p. 49). (16) Text matters, he insists; at the same time, however, so does "implicit text"--constitutional text he describes as written in "invisible ink" (p. 50).

The suggestion here is that the drafters of a bill of rights agreed to include particular text but to hide it from view. Why would they do so? And even assuming that they did, why should judges give effect to their subterfuge? The invisible ink metaphor is inapt, however, for invisible ink is apparent to anyone that has the right medium for viewing it. Only judges can see the text Barak has in mind. (17) Thus, judges can exercise discretionary authority to read rights into a bill of rights. The extent to which this is legitimate is, of course, controversial, unless we assume that there is no distinction between the constitution and what judges say about the constitution. (18) Despite his insistence that constitutional text matters, what Barak describes as text-specific rights turn out to be "framing" rights, each of which includes a "bundle of rights" (19)--again, recognized by judges--that are also to be regarded as explicit rather than implicit rights. (20)

Barak's conception of the interpretive task is at odds with much of what we know about bills of rights. The text of bills of rights is likely to be chosen carefully--indeed, painstakingly--in order to achieve the agreement in the political community necessary to adopt bills of rights. The drafters of bills of rights think that the words they choose matter; they think that their agreements to include particular rights and to omit others will be understood and respected. To be sure, agreement to the adoption of a bill of rights is often achieved at the expense of clarity or specificity: important provisions in bills of rights may be worded more or less vaguely in order to facilitate their adoption. (21) This allows agreement to be reached at a level of abstraction--to broad concepts rather than particular conceptions, about which there may be considerable disagreement. Once a vaguely worded bill of rights is adopted, the question is: how will...