Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach

284 Pages·2019·1.155 MB·English

by  Alec Stone Sweet, Jud Mathews

Title Pages
Proportionality Balancing and Constitutional
Governance: A Comparative and Global Approach
Alec Stone Sweet and Jud Mathews
Print publication date: 2019
Print ISBN-13: 9780198841395
Published to Oxford Scholarship Online: July 2019
DOI: 10.1093/oso/9780198841395.001.0001
Title Pages
Alec Stone Sweet
Jud Mathews
(p.i) Proportionality Balancing and Constitutional Governance (p.ii)
(p.iii) Proportionality Balancing and Constitutional Governance
(p.iv) Copyright Page
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Acknowledgments
Proportionality Balancing and Constitutional
Governance: A Comparative and Global Approach
Alec Stone Sweet and Jud Mathews
Print publication date: 2019
Print ISBN-13: 9780198841395
Published to Oxford Scholarship Online: July 2019
DOI: 10.1093/oso/9780198841395.001.0001
(p.v) Acknowledgments
Alec Stone Sweet
Jud Mathews
The question of whether and how judges should balance conflicting values and
interests has dominated my research on law and politics over the past twenty
years. My approach to proportionality, in particular, has evolved through
intensive discussions with Robert Alexy, Aharon Barak, Carlos Bernal Pulido,
Damiano Canale, Moshe Cohen-Eliya, Dieter Grimm, Mattias Kumm, Jud
Mathews, Iddo Porat, Giovanni Sartor, Wojciech Sadurski, Po Jen Yap, and Neil
Walker. I am deeply grateful to each of them. I have also benefitted from
teaching seminars on the topic at the Yale Law School, Bocconi University, and
the National University of Singapore; I have, undoubtedly, learned more from my
students than they have from me. Carlos Bernal, Laurence Helfer, Emilio Peluso
Neder Meyer, and Po Jen Yap identified important rulings that would have
otherwise escaped our attention. I am indebted to Dominic Byatt at Oxford
University Press, who first suggested the book, and whose support of my
research now spans over three decades. Julie Chenot and Cécile Descloux, at the
Camargo Foundation in Cassis, France, again provided a place to write, under
the best of all possible conditions. And once more, Martha Lewis, an artist who
tracks the continuous, but virtuous, failures of human beings to bring a
semblance of order to complex systems, made the painting that adorns the
cover.
Alec Stone Sweet
I am fortunate to have been a part of the international community of scholars
writing about proportionality for more than a decade now. Several of the figures
named in Alec’s list have powerfully influenced my thinking as well; I would like
to also thank Iris Canor, Paul Craig, Jamal Greene, Vicki Jackson, David Law,
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Acknowledgments
Russell Miller, Niels Petersen, Steve Ross, Eberhard Schmidt-Aßmann, and Alec
Stone Sweet. A small army of terrific research assistants contributed to this
project: thank you to Ylli Dautaj, Koah Doud, Salma Hassan, Neeraj Kumar,
Nasim Mokhtari, Celia Karlin O’Sullivan, Martin Souto-Diaz, and Yan Zeng. I am
grateful to the Max Planck Institute for Comparative Public Law and
International Law, where I spent the summer of 2016, and to my home
institution, Penn State Law, for providing congenial and collegial environments
for research. Lastly, I want to thank Kim Mowery, for everything.
Jud Mathews (p.vi)
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Constitutions, Rights, and Judicial Power
Proportionality Balancing and Constitutional
Governance: A Comparative and Global Approach
Alec Stone Sweet and Jud Mathews
Print publication date: 2019
Print ISBN-13: 9780198841395
Published to Oxford Scholarship Online: July 2019
DOI: 10.1093/oso/9780198841395.001.0001
Constitutions, Rights, and Judicial Power
Alec Stone Sweet
Jud Mathews
DOI:10.1093/oso/9780198841395.003.0001
Abstract and Keywords
This chapter provides an overview of contemporary, rights-based
constitutionalism, and develops an approach to comparative research on systems
of constitutional justice. The vast majority of modern constitutions establish such
systems, which comprise an entrenched charter of rights, and a constitutional or
supreme court whose mission is to defend the supremacy of the constitution
more generally. Rights provisions comprise criteria of legal validity: any act of
public authority that does not conform to the charter is unconstitutional. The
central role of the court is to ensure that public officials do not violate the
charter of rights, most importantly, through the enforcement of the
proportionality principle. The judges are, in effect, “trustees” of the values
placed in trust by those who have enacted the constitution: the sovereign
People. Part I defines basic concepts—including that of “the constitution,”
“constitutionalism,” and “governance”—and examines the process through
which the rights-based constitution became the global standard. Part II
addresses two crucial questions: why would the founders of new constitutions
choose (i) to enshrine constitutional rights as “higher law,” and (ii) to delegate
broad enforcement powers to a trustee court, whose important rulings on rights
are difficult or virtually impossible to overturn? It then defines the concept of
systemic effectiveness, and considers the conditions that are necessary for a
charter of rights to become effective as an instrument of governance. Part III
explores three pathways to transformative constitutional change—adjudication,
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Constitutions, Rights, and Judicial Power
constitutional amendment, and legislation—and discusses the importance of
trusteeship to each.
Keywords:   system of justice, charter of rights, trustee court, constitution, constitutionalism,
completeness, effectiveness, constitutional transformation
Prior to 1950, only a handful of high courts in the world had any meaningful
experience with constitutional judicial review: the authority of a court to
invalidate acts of public authority, including statutes, found to be in conflict with
the constitution. The cataclysmic destruction of World War II led to a
reconstruction of governance, particularly in Europe, which gradually emerged
as the epicenter of a “new constitutionalism”1 featuring rights protection at its
core. By the turn of the twenty-first century, the defining features of what Jacob
Weinrib simply calls “modern constitutional law”2 had become a global standard:
(i) an entrenched, written constitution; (ii) the establishment of democratically
elected organs of government bound by a justiciable charter of rights; and (iii)
an apex court whose primary duty is to defend the primacy of the charter, and of
the constitution more generally. Meanwhile, the world’s most powerful high
courts had converged on a common procedure—a doctrinal framework known as
proportionality analysis (PA)—to adjudicate rights.3 Today, PA is basic to the rule
of law in the modern constitutional state.4 Since the 1970s, the most powerful
international courts, too, have embraced PA when they enforce human rights. As
a result, scholars now identify the scaffolding of a global, multi-level
“constitution,”5 which comprises overlapping international and domestic rights
instruments, and a shared commitment to enforcing the principle of
proportionality (Chapters 3, 6).
These developments have transformed the deep structure of law and politics,
raising foundational questions. Why would political rulers, when negotiating a
new constitution, empower judges to enforce rights—substantive constraints—on
their own lawmaking powers? What would lead them to renounce the
majoritarian principle that once held pride of place in liberal democratic theory?
If the new constitutionalism requires the demise of (p.2) legislative supremacy,
do constitutional judges necessarily become the supreme rulers? Why would
states build international regimes that empower an international court to
supervise how they govern domestically? Another set of issues concerns the
variation one observes across legal systems. How are charters of rights
enforced? Why do some systems protect rights more effectively than others? To
what extent do the rulings of constitutional courts impact the making of public
policy? The global scope and dynamics of these changes also pose intriguing
questions. Can one observe the development of “global constitutionalism,” and,
if so, what are its core elements? Has the transformation process just begun, or
has it reached its limits?
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Constitutions, Rights, and Judicial Power
We engage such questions from standpoints that deserve emphasis up front.
First, the book develops an account of effective, rights-based constitutional
governance. By governance, we mean the mechanisms through which legal
norms are produced, adapted, and applied. The central task of modern
constitutional law is to regulate legal and political change: how new legal norms
are introduced, and existing norms altered or abrogated. The book focuses
attention on the structural dynamics of legal change. To achieve their purposes,
new constitutions—blueprints for governance—must be implemented. A charter
of rights is at most an aspirational text; no charter is born with any degree of
effectiveness. Instead, we argue, effectiveness is a construction of constitutional
politics. Second, our basic unit of analysis is the “system of constitutional
justice” (SCJ): that complex of constitutionally rooted rules, principles,
procedures, and practices that govern the protection of rights. We will define the
concept of effectiveness shortly. For now, it is enough to note that the
“effectiveness” of systems of justice varies across time and place. Third, we
direct empirical attention to the policy impact of charters of rights. Rights
adjudication, in particular PA-based rights adjudication, helps to organize how
legislatures, executives, and judiciaries make, enforce, and change law at a sub-
constitutional level. In embracing proportionality, we will argue, constitutional
judges obtain a powerful managerial tool for supervising how all other officials
govern, and for building systemic effectiveness over time.
Proportionality evolved in Germany, passing first from eighteenth-century legal
philosophy into nineteenth-century administrative law, before becoming an
unwritten, judge-made principle of constitutional law in the twentieth century.
Today, proportionality is increasingly enshrined in constitutional texts,6 and has
been fully constitutionalized across Europe, in parts of Latin America and Asia,
and in common law systems as diverse as Canada, South Africa, Israel, and the
United Kingdom (Chapter 3). The adoption of PA by the courts of regional,
treaty-based rights regimes (including the European and Inter-American
Conventions on Human Rights) has also been a key (p.3) factor in its global
diffusion (Chapter 6). Presently, PA has no rival as the central procedural
component of rights adjudication. Its basic function is to organize a systematic
assessment of the justifications that state officials must provide if they wish to
limit the scope of a right in a constitutionally permissible way (Chapter 2).
Why are rights adjudication and the proportionality principle at the heart of
governance in the modern constitutional state? The simple answer is that the
two are complementary: (i) the charter of rights is binding on all acts of public
authority, including statutes; and (ii) PA furnishes a stable, comprehensive
analytical framework for resolving legal challenges concerning the conformity of
such acts with rights.
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Constitutions, Rights, and Judicial Power
The charter establishes positive requirements of legality.7 But to be effective,
rights provisions must be enforceable: they must establish juridical entitlements,
possessed by individuals, to challenge acts of public authority as inconsistent
with rights. Yet most rights in modern charters—the right to human dignity and
to be free from torture being the most important exceptions—are not expressed
(or interpreted) in absolute terms. Instead, they are “qualified” by a limitation
clause that authorizes officials to restrict the enjoyment of a right for some
sufficiently important public purpose. A central mission of any system of
constitutional justice, then, is to determine whether public officials have
properly exercised their authority under a limitation clause. As Weinrib neatly
puts it: “The doctrine of proportionality consists in a set of conditions that [state
officials] must satisfy to justify a limitation of a constitutional right.”8. PA, with
its distinctive series of tests, is tailor-made for this task, which partly accounts
for why constitutional judges have been drawn to it (Chapter 2). Moreover, it is
trans-substantive: judges can apply the same basic standard—of proportionality
—to all qualified rights.
When judges embrace PA, they incorporate into the constitution a presumptive
right to justification. PA is triggered once a rights claimant has shown, prima
facie, that her liberty under a right has been abridged by an official act. The
proportionality principle is enforced through a series of subtests, which we
analyze in detail in Chapter 2. At this point, a stylized summary of how a statute
is reviewed under PA will suffice. Under the first subtest, the government must
show that the legislation under review was enacted in pursuance of a legitimate
aim, that is, the law is covered by a proper purpose recognized by the
constitution. In a second stage, the court verifies that the means chosen by
officials are, in fact, rationally connected to the statute’s purpose: a subtest for
“suitability.” If the law is judged to be suitable, the court moves to the
“necessity” stage, which is operationalized by a “least restrictive means” test.
The key question under this subtest is whether (p.4) the statute abridges a
right more than is necessary to achieve the legislature’s declared purpose. If
there exist (reasonably available) alternative means that would permit
parliament to achieve its aim, while infringing less upon rights holders’
protected interests, then the challenged measure will fail. The fourth subtest—
known as “proportionality in the strict sense,” “proportionality stricto sensu,” or
simply “balancing”—assesses whether the marginal harm the statute under
review imposes on rights holders is “outweighed” by the law’s contributions to
the public good, which may include protecting the rights of others. Among other
things, the balancing stage permits the court to ensure that a right will not be
severely abridged in the service of achieving a relatively slight social benefit.
Apex courts that embrace PA do not simply add a doctrinal technique to their
methodological toolkit. Once constitutionalized, proportionality is enshrined as a
master principle of governance whose authority is no less than that of the
constitution, or of the apex court charged with defending the higher law. When
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Constitutions, Rights, and Judicial Power
rights are in play, all public officials and all organs of governance must respect
the proportionality principle in their policy deliberations. PA is a highly intrusive
standard of review: once activated, no policy consideration or interest is
screened from judicial scrutiny. Whatever deference the court may show state
officials will occur within the framework, not imposed on it through an external,
formalized abstention or deference doctrine (for instance, “political questions,”
“Wednesbury unreasonableness,” “state security”). As empirical research has
shown, apex courts that deploy PA consistently and in good faith generate highly
structured constitutional “dialogues” that shape how policy is made and the
system evolves (Chapter 5).9 In relatively effective systems, the more an apex
court uses PA, the more proportionality considerations will govern how officials
govern.
What the book is not about is also worth noting. We do not argue that global
constitutionalism and PA are progressing, through some teleological or
functional process, toward a one-size-fits-all monotype. Evidence of institutional
and doctrinal convergence is, in fact, of enormous significance. The fact that
virtually all new national constitutions establish a system of constitutional
justice raises important theoretical and empirical issues, while making broad-
gauged comparative analysis possible. We fully recognize that every
constitutional order evolves against the backdrop of distinct historical, cultural,
and politico-legal legacies that are likely to constrain the availability of viable
paths of development moving forward. The book, therefore, pays a great deal of
attention to the diversity of practice, including how constitutional judges deploy
PA. We also dwell on countervailing tendencies, resistance, and “negative
cases,” which global convergence makes all the more salient.
(p.5) PA is a doctrinal construct, and our focus on legal doctrine may also raise
alarm bells. It is fashionable to be suspicious of scholarship that seeks to explain
legal outcomes solely through the exegesis of constitutional texts and the formal
pronouncements of high courts. Rightly so. Academic lawyers and social
scientists have conclusively demonstrated that “extra-legal factors”—economic
development, the organization of party and electoral systems, demographic
shifts and cultural change, the rise and fall of social movements, and so on—
heavily condition the evolution of constitutional law and politics.10 The close
attention we pay to the structural features of rights protection is not a covert
assertion that only things “legal” or “judicial” matter. Indeed, we will argue that
the effectiveness of any system of constitutional justice is largely determined by
two meta-variables, which depend heavily on the kinds of factors named above.
These are the extent to which: (i) the important questions of the day (economic,
social, political, scientific, and so on) are adjudicated by constitutional judges;
and (ii) the latter’s rulings influence the decision making of all other public
officials. In embracing PA, we will argue, constitutional courts enhance their
capacity to build systemic effectiveness in specific ways.
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Constitutions, Rights, and Judicial Power
The fact that the constitutional world is diverse, complex, and not well
understood poses daunting challenges. Our approach is to concentrate on
structural elements that are common to all constitutions, while organizing
inquiry into variance across systems. All modern constitutions, for example,
share certain formal properties that the analyst must take into account in
comparative research. All purport to comprise bodies of higher-order rules that
determine how every other sub-constitutional legal norm is to be made and
applied; yet the precise content of constitutional meta-rules displays wide cross-
national variance. Diverse fields of scholarship can make important
contributions, different but complementary, to the study of systems of
constitutional justice. Our general strategy is to integrate materials from several
fields and perspectives into our inquiry, as sources for key concepts, testable
propositions, and real-world data. In particular, we draw on: (i) the legal
philosophy related to constitutions; (ii) delegation theory, as adapted to systems
of constitutional justice; and (iii) the findings of prior comparative research of an
explanatory nature. In addition, the concept of the system of constitutional
justice itself, as a distinctive way of understanding the functions a legal regime
can perform, generates new insights and hypotheses of its own when employed
in comparative analysis. Let us briefly consider each in turn.
First, legal philosophers have produced an important literature addressing
fundamental questions that cover all constitutional orders. What is a
constitution, and what are its major functions? To what extent does a
constitution’s (p.6) claim to authority and legitimacy depend upon extra-
constitutional factors and forces? In their responses to such questions, scholars
routinely generate propositions (proto-explanations or hypotheses) that are
directly relevant to comparative research. More broadly, legal scholars have
generated the core conceptual vocabulary that we use to describe the
institutions and practices of constitutional law, and the relevant differences we
see across systems.
Second, social scientists use delegation theory to guide research on any
governance situation in which a power-holder—the Principal—confers authority
on an individual or an organization—the Agent—to help the Principal attain her
goals.11 Here, we extend the insights of delegation theory to help account for
key features of modern constitutional law and politics. We use it to help explain
the turn to constitutional judicial review, to organize discussion of the structural
determinants of judicial power, and to derive propositions about effectiveness
and systemic change.
Third, the existing literature in the field of comparative constitutional law and
politics also pushes us to think more generally, in light of empirical findings.
Scholars have recently begun to collect and analyze relatively comprehensive
data on constitutions,12 modes of judicial review,13 and the content of charters of
rights.14 Of particular significance to this book is empirical research on the
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