Stephen Gardbaum, Proportionality and Democratic Constitutionalism (October 1, 2013). Proportionality and the Rule of Law: Rights, Justification, Reasoning, Grant Huscroft, Bradley Miller, Grégoire Webber, eds., Cambridge University Press, 2014 ; UCLA School of Law Research Paper 13-32. Available at SSRN
As scholarship on proportionality has taken a welcome normative turn in the last few years, some of its proponents have portrayed it as an essential part of a broader “culture of justification.” Within this culture, as a condition of its legitimacy, all government action – and not only the basic structure of society – must be justifiable in terms of public reason to the individuals burdened by it. Proportionality analysis provides the analytical framework for this required exercise in justification. This account of proportionality emphasizes its strength as supplying the necessary “second pillar” of constitutional legitimacy; democracy is not enough. By contrast, critics of proportionality have emphasized its weakness rather than strength as a constraint on government action, particularly in the rights context. By placing constitutional rights on a par with governmental interests, engaging in “rights inflation,” and reducing rights analysis to the purely quantitative, critics claim that proportionality rejects the special normative force of constitutional rights. For them, protecting rights only against disproportionate infringements is not enough.
In this chapter, I propose an alternative normative perspective to the influential culture of justification from which to understand and evaluate proportionality. From this perspective, proportionality should primarily be understood as enhancing, not constraining, democracy. Rather than the constitutionalist legitimacy of democracy, proportionality is centrally about the democratic legitimacy of a constitutionalized rights regime and an appropriate balance between judicial and legislative powers. It is part of a conception of constitutional rights and of a rights regime that seeks to accommodate and temper enduring and legitimate democratic concerns. This conception is typically institutionalized through the textual vehicle of the limitations clause, which grants to legislatures significant power and leeway in the resolution of rights issues. Accordingly, this alternative normative perspective can be thought of as promoting a “culture of democracy.”
In claiming that proportionality can and should be viewed through the lens of democratic constitutionalism, I am not arguing that it is the only or best rights regime from this perspective. What I am suggesting is that a system of proportionality-based constitutional rights can be made less vulnerable to certain democratic critiques than alternative systems of strong-form judicial review, and that this should be taken into account in the normative debates about the merits of proportionality and institutional forms of constitutionalism more generally. If, as I argue, proportionality can properly be viewed as one version of democratic constitutionalism, the final section of the chapter broadens the picture by outlining the other major versions and offering some preliminary and tentative thoughts on their comparison and respective merits.