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Constitutional Law in an Age of Proportionality Abstract H.3094.JACKSON.3196.DOCX (DO NOT DELETE) 6/9/15 6:16 PM 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. author. 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 constitutional law in an age of proportionality feature contents introduction 3096 i. proportionality in u.s. constitutionalism and abroad 3104 A. Proportionality Principles Already Recognized in U.S. Constitutional Law 3104 B. Proportionate Government as a Goal of Constitutional Design 3106 C. Proportionality Elsewhere: The United States in Comparative Perspective 3110 ii. of older texts, clause-bound interpretation, and negative precedents 3121 iii. benefits of proportionality review for u.s. constitutional law 3130 A. Regulating Police Behavior Under Constitutional Norms 3130 1. Atwater v. City of Lago Vista and Fourth Amendment Case Law 3130 2. A Canadian Comparison 3134 B. “Strict Scrutiny” and the First Amendment 3136 C. Theoretical Benefits of Proportionality Review in Deciding Rights Claims 3142 1. Structured and Transparent Reason-Giving with Broad Justificatory Appeal 3142 2. Bridge Between Courts and Legislatures 3144 3. Justice, Law, and Judgment 3147 4. Process Failures Warranting Heightened Scrutiny 3151 iv. objections and responses 3153 A. General Objections to Proportionality as a Standard of Review 3153 B. Arguments from Lack of Fit with U.S. Constitutionalism 3159 v. defining the boundaries for proportionality review 3166 A. Different Rights, Different Roles, Different Texts 3168 B. Remedial Constraints 3170 1. The Exclusionary Rule 3170 2. Equal Protection 3172 3. Criminal Sentencing 3184 C. Fragile Rights, Fragile Regimes 3189 conclusion 3193 3095 the yale law journal 124:3094 2015 introduction “Proportionality” is today accepted as a general principle of law by consti- tutional courts and international tribunals around the world.1 “Proportionality review,” a structured form of doctrine, now flows across national lines, a seem- ingly common methodology for evaluating many constitutional and human rights claims.2 The United States is often viewed as an outlier in this transna- tional embrace of proportionality in constitutional law.3 Yet some areas of U.S. constitutional law embrace proportionality as a principle, as in Eighth Amendment case law,4 or contain other elements of the structured “propor- tionality review” widely used in foreign constitutional jurisprudence,5 includ- ing the inquiry into “narrow tailoring” or “less restrictive alternatives” found in U.S. strict scrutiny.6 Justice Stephen Breyer has suggested that there are other areas in which the appropriate standard of judicial review would involve examining the propor- tionality of government regulation.7 For example, in United States v. Alvarez,8 1. In 2004, Canadian scholar David Beatty asserted that proportionality review was the “ulti- mate” rule of law for resolving constitutional questions about rights; as a positive matter, it was the dominant method of constitutional interpretation in the world, and as a normative matter, it was superior to such other methods as originalism or textualism. DAVID M. BEAT- TY, THE ULTIMATE RULE OF LAW 159-88 (2004). In 2005, U.S. legal scholar David Law iden- tified proportionality as a “generic” component of constitutional adjudication around the world. David S. Law, Generic Constitutional Law, 89 MINN. L. REV. 652 (2005). On the role of proportionality in international law and administrative law, see, for example, HCJ 2056/04 Beit Sourik Vill. Council v. Gov’t of Israel, 58(5) PD 807 [2004] (Isr.), translated in 2004 ISR. L. REP. 264. See also Gráinne de Búrca, The Principle of Proportionality and its Appli- cation in EC Law, 13 Y.B. EUR. L. 105, 113 (1993). 2. The German Constitutional Court has been particularly influential, as has the Canadian Su- preme Court, in developing “proportionality review” in ways that influence other countries. On how seemingly similar approaches may be applied or understood differently in different countries, see JACCO BOMHOFF, BALANCING CONSTITUTIONAL RIGHTS: THE ORIGINS AND MEANINGS OF POSTWAR LEGAL DISCOURSE (2013) (comparing U.S. and German conceptions of balancing); and Dieter Grimm, Proportionality in Canadian and German Constitutional Ju- risprudence, 57 U. TORONTO L.J. 383 (2007). 3. See Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign Law Debate in Heller: The Propor- tionality Approach in American Constitutional Law, 46 SAN DIEGO L. REV. 367 (2009) [herein- after Cohen-Eliya & Porat, The Hidden Foreign Law Debate]; see also MOSHE COHEN-ELIYA & IDDO PORAT, PROPORTIONALITY AND CONSTITUTIONAL CULTURE 14-16 (2013) [hereinafter COHEN-ELIYA & PORAT, PROPORTIONALITY]. 4. See, e.g., Graham v. Florida, 560 U.S. 48, 59 (2010); see also cases cited infra notes 43-44. 5. See generally Steven Gardbaum, The Myth and Reality of American Constitutional Exceptional- ism, 107 MICH. L. REV. 391 (2008). 6. See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267 (2007). 7. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 49 (2006). Justice Breyer’s interest in proportionality as an approach to analyzing rights goes 3096 constitutional law in an age of proportionality Justice Breyer’s concurrence, joined by Justice Kagan, associated proportionali- ty review with intermediate scrutiny and applied this standard to evaluate a First Amendment challenge to the Stolen Valor Act.9 In his dissent in District of Columbia v. Heller,10 Justice Breyer explicitly invoked the idea of proportionali- ty as a guide to permissible regulation under the Second Amendment.11 This explicit invocation of proportionality led some scholars to begin to consider, critically, the prospects of proportionality review, as it has developed elsewhere in the world, being more fully embraced in the United States.12 Given developments within and outside the United States, the time is ripe to take a fresh look at proportionality, both as a general principle in constitu- tional analysis and as a structured doctrine of potential benefit to discrete areas of U.S. constitutional law. In 1987, T. Alexander Aleinikoff criticized U.S. con- stitutional law for its overreliance on balancing in doctrines like strict scrutiny and in cases like Tennessee v. Garner13 or Mathews v. Eldridge,14 where the Court aimed to strike a balance among different
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