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Originalism and Proportionality Analysis

One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America.  Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual constitutional right can be regulated by the state.

The PA analysis generally considers the following aspects:

1. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right?

2. Are the means in service of the objective rationally connected (suitable) to the objective?

3. Are the means in service of the objective necessary, that is, minimally impairing of the limited right, taking into account alternative means of achieving the same objective?

4. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right?

Clearly, this four part test is similar to, but distinct from the doctrinal tests that the U.S. Supreme Court often uses to analyze rights, such as strict or intermediate scrutiny.  But it differs by allowing for more balancing (under step 4) and in the way the courts apply it.

High courts in Europe and throughout the world have used this approach in breathtaking exercises of judicial power.  And it is sometimes thought to be the opposite of an originalist approach.  But in this short essay (of seven pages), I argue that originalism and proportionality analysis are not opposites.  In fact, some of the time proportionality analysis may be justified under originalism.

Here is the abstract:

While it is often thought that proportionality analysis (PA) and originalism are inconsistent with one another, this essay argues that the two approaches do not necessarily conflict.  The reason is that originalism and PA are focused on different things.  Originalism is an interpretive method that attempts to determine and apply the original meaning of a constitution.  PA, by contrast, is a method mainly for analyzing rights under the fundamental law.  If the original meaning of the constitution requires PA, then the two approaches will coincide.  If the original meaning requires something other than PA, then the two will conflict.

The real question, then, is not whether the two approaches conflict or coincide in general, but whether the original meaning of a particular constitution requires or permits PA.  This essay, which is part of a symposium on originalism published online in the Italian Law Journal Diritto Pubblico Comparato Ed Europeo, develops these points.  It starts by showing that originalism is not necessarily inconsistent with PA.  It then explores the changes in originalism in recent years and some of the different types of originalism.  It then explains how several constitutions throughout the world, that do not explicitly allow PA, might or might not, depending upon the details, be understood to require or permit PA.

Reader Discussion

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on November 21, 2017 at 12:04:49 pm

Is this the "living constitutionalists" attempt to redifine the Necessary and Proper Clause - or to dilute it?

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gabe
on November 21, 2017 at 12:35:59 pm

Oops! _ I don't mean that Rappaport is a living constitutionalist!

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gabe
on November 22, 2017 at 11:45:08 am

He's simply right. You have a right to worship as you please, but we'll draw the line at casting virgins into volcanoes. :)

The Framers invoked vague terms for a reason: They expected the law to develop over time. For instance, the meaning of the words "cruel" and "unusual" haven't changed in a quarter-millenium, but what constitutes "cruelty" has evolved over the years (for instance, playing Barry Manilow albums 24/7/365 is an inhuman form of torture).

The right to bear arms is couched in absolute terms, but would you really want a Stephen Paddock to have a battery of Stinger missiles? Proportionality--i.o.w., common sense--defines the limits of seemingly "absolute" rights.

This is one of the arguments LC types use against us originalists--often, as a caricature. But when you get down to it, the difference between LC theory and originalism is smaller than you think. Stephen Breyer's "Active Liberty" is not that different from Bork's view. (lf you are curious, head over to Dorf on Law; l'm "John Barron".)

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Trevor Chase
on November 22, 2017 at 13:28:47 pm

"He’s simply right. You have a right to worship as you please, but we’ll draw the line at casting virgins into volcanoes. "

Dang it! there goes my cultural appropriation of native religious practices.
I guess I'll have to go back to watching the NFL!

As for Barry Manilow, I have been informed that Harvey Weinstein played him constantly, no doubt in an effort to lull his victims into somnolence.

GIVEN this:

"the meaning of the words “cruel” and “unusual” haven’t changed in a quarter-millenium, but what constitutes “cruelty” has evolved over the years ..."

And what if we substitute the word "person" for cruel and unusual; does the thesis on intentional vagueness ALSO apply? - A legitimate question and one that I suspect would be handled quite differently than the 8th Amendment clause on punishment wherein we permit the Judicial to determine what is cruel. why not let a Jurist NOW define what a person is? - Oops, I forgot, Jurists have done that in the negative. - Ha!

Have a Happy Thanksgiving to ALL!!! You, too, Dawg!
Cruel and unusual would be, for me, having to drink WHITE wine on Thanksgiving!

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gabe
on November 22, 2017 at 13:37:31 pm

This kind of self-perpetuating academic self-justification is why no one but law school prof's (talking to each other) and law review students (reading what their prof's assign) reads law reviews and similar journals. Would any judge with a docket or any lawyer with a client or any person with a life spend his or her time on such utterly immaterial stuff?

Publishers should apply Wigmore to all such writing and first judge it "admissible" if they are to publish it.

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timothy
on November 23, 2017 at 10:08:00 am

Nice try. High marks for creativity ,though. Whereas "cruel" is an opinion, "personhood" is a status. Either you are pregnant, or you are not. Either you are a person, or you are not.

A dry Riesling goes nicely with turkey, but l'm after a curry chicken and Red Stripe on the beach this evening. :)

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Trevor Chase
on November 23, 2017 at 10:21:10 am

Creativity comes ONLY from a fulsome red wine; after all, how creative can one be if it's skin is ripped off and tossed away?

BTW: My implied point was that "person" is now also an opinion.

Enjoy the beach!

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gabe
on November 24, 2017 at 07:01:47 am

Welcome to the Living Constitution, Gabe! That is what this debate is all about.

When it comes to just drinking, l'm a red wine guy -- good for the heart! -- but some grapes are green, and sparkling does go well with food like turkey, duck, and crab cakes.

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Trevor Chase
on November 24, 2017 at 09:05:19 am

l honestly can't recall the last time l didn't cite at least one LR article in an appellate brief. But if your practice is limited to traffic court, YMMV.

This particular debate--how we are to interpret COTUS--is central to pretty much everything that we call "law." Are we ruled by the words on that hallowed parchment, or King Judge? The Lawrence Tribes of the world want us to genuflect before their black-robed students, and strain to discredit the alternative. These responses are essential rebuttals.

Originalism is--more or less--a fully-formed thesis. But as every law student knows (Speluncean Explorers), even the best theory produces idiosyncratic results.

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Trevor Chase
on November 24, 2017 at 11:27:09 am

Dawg:
"...even the best theory produces idiosyncratic results." - OR ones we do not like!

BTW: Thx for the recommendation on Barnetts "Lost constitution" - EXCELLENT!

May have (almost, not quite) caused me to *re-form* my assessment of Kurt T. Lash's argument re: P&I.
Am about to read a critique by Barnett of Lash at Stanford Law Review.

should be interesting.

And yeah, some *sparkle* is essential.

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gabe
on November 24, 2017 at 18:20:31 pm

July 5, 2011
Chief Justice John Roberts Jr. at the recent Fourth Circuit Judicial Conference grabbed a few relatively easy applause lines – by knocking the work of law professors.
Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”
Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Roberts added that he doesn’t necessarily think anything is wrong with such an approach, albeit a relatively irrelevant one. “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts continued, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”

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timothy
on November 24, 2017 at 20:23:16 pm

In lots of appellate briefs I cited an LR only once, to SCOTUS, which ignored it. Lost that case so maybe they held the LR against me:) Wrote myriad briefs and read many more in over 4 decades in 7-8 DC's, 5 CA's and Scotus and recall no LR citations by counsel of record. Have seen LR citations by amicus (whose briefs are mostly a waste of time and money,) many written by law prof's (which tends to support my point.) CJ Roberts seems to agree with me. He's seen lots more of this stuff than I have. Maybe his opinion was based on his time in traffic court:)

Never been to traffic court but agree with you that LR's play no role there. I think your comment re traffic court is childish ( thus consistent with your use of social media acronyms) and immaterial ( thus consistent with your reliance on LR citations.) Serious adults (except law profs) have no time to read LR articles; serious advocates know not to cite them. Snarky remarks (like yours) are the debate weapons of modern Democrats. And you seem to be the only adult I've encountered whose verbal limitations necessitate the use texting acronyms, the language of Facebook, Twitter and adolescents.

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timothy
on November 26, 2017 at 16:25:40 pm

The ones you don't like, you have to accept. But the point of SE--literally, the first "case" you study in LS--is that no system of judicial analysis is perfect. Read http://www.nullapoena.de/stud/explorers.html Originalism has a sound and articulable foundation, but it doesn't always provide a clear path. The notion that the Framers had the CL fill in some of the blanks might be discomfiting, but l don't see how you avoid it.

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Trevor Chase
on November 27, 2017 at 08:48:49 am

Concur that 95% of all LR articles should never have been born.

For ordinary Americans, "SCOTUS" is a fresh-faced 25 year-old kid from Harvard who has never tried a case in his life, and is petrified of recommending a case the Gods don't want to hear. l wouldn't read anything into that.

As for using LR articles, a lot depends on how well-developed the law is. Courts do cite them with regularity, and you would rather that you lead them to the one you want. (They are always tertiary authority, and never to be relied on.)

CJ Roberts is a Tribe-trained Burkean LC type, but even he is not above using tertiary sources. This is a sample from his Obergefell dissent:

See G. Quale, A History of Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57 (W. Miller transl. 1913) 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947) Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006). 1 An American Dictionary of the English Language (1828) J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). Black’s Law Dictionary 756 (1891) see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) L. Hand, The Bill of Rights 42 (1958). J. Ely, Democracy and Distrust 44 (1980). See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006) G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013).

Never uses 'em? Roberts has a habit of not practicing what he preaches.

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Trevor Chase

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