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124 Yale L. J. 3094 (2014-2015)
Constitutional Law in an Age of Proportionality

handle is hein.journals/ylr124 and id is 3166 raw text is: VICKI C. JACKSON Constitutional Law in an Age of Proportionality ABSTRACT. Proportionality, accepted as a general principle of constitutional law by many countries, requires that government intrusions on freedoms be justified, that greater intru- sions have stronger justifications, and that punishments reflect the relative severity of the of- fense. Proportionality as a doctrine developed by courts, as in Canada, has provided a stable methodological framework, promoting structured, transparent decisions even about closely con- tested constitutional values. Other benefits of proportionality include its potential to bring con- stitutional law closer to constitutional justice, to provide a common discourse about rights for all branches of government, and to help identify the kinds of failures in democratic process warrant- ing heightened judicial scrutiny. Earlier U.S. debates over balancing were not informed by re- cent comparative experience with structured proportionality doctrine and its benefits. Many areas of U.S. constitutional law include some elements of what is elsewhere called proportionality analysis. I argue here for greater use of proportionality principles and doctrine; I also argue that proportionality review is not the answer to all constitutional rights questions. Free speech can benefit from categorical presumptions, but in their application and design pro- portionality may be relevant. The Fourth Amendment, which secures a right against unrea- sonable searches and seizures, is replete with categorical rules protecting police conduct from judicial review; more case-by-case analysis of the unreasonableness or disproportionality of police conduct would better protect rights and the rule of law. Disparate impact equality claims might be better addressed through more proportionate review standards; Eighth Amendment review of prison sentences would benefit from more use of proportionality principles. Recogniz- ing proportionality's advantages, and limits, would better enable U.S. constitutional law to at once protect rights and facilitate effective democratic self-governance. A U T H O R. Thurgood Marshall Professor of Constitutional Law, Harvard Law School. An ear- lier version of this paper was given as my Chair Lecture in October 2013 at Harvard Law School. With deep thanks to friends and colleagues for helpful comments on drafts and for discussions over the years of these topics, including Aharon Barak, David Cole, Richard Fallon, David Fon- tana, Nancy Gertner, Tom Ginsburg, Jamal Greene, Dick Howard, David Law, Jud Mathews, Martha Minow, Iddo Porat, Judith Resnik, Fred Schauer, Kim Lane Scheppele, Mike Seidman, Greg Shaffer, Joseph Singer, Gerry Spann, Carol Steiker, Nick Stephanopoulos, Geoff Stone, David Strauss, Laurence Tribe, Mark Tushnet, Barbara Underwood, and Katharine Young; with thanks for opportunities to present precursors to this paper in George Washington University Law School's Comparative Constitutional Law Roundtable, at a Law and Society meeting in Boston, and at a faculty workshop at the University of Chicago Law School; and with great ap- preciation for excellent research assistance from Harvard Law students, including Tom Burnett, Abby Collela, Jess Eisen, Dylan Lino, Ezra Marcus, Karthik Reddy, Andres Salinas, and Jason Shaffer. 3094

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