Positional Objectivity and the Case for
Proportionality Analysis in Constitutional Law
Vlad Perju
Positional Objectivity and the Case for Proportionality Analysis
in Constitutional Law
Introduction ……………………………………………………………………………..3
1. Two Models of Constitutional Rights………………………………….……………12
1.1. Rights as Structural Reasons: The Allocation Model………………….……………14
1.2. Rights as Substantive Reasons: The Proportionality Model…………….…………..22
2. The Proportionality Debate……………………..…………………...………………30
2.1. The Proportionality Test………………………………………….…………………30
2.1.1. Comparative Perspective: Canada and Germany ……………….…………….31
2.1.2. Justice Breyer’s Heller Dissent…………………………………...…………….39
2.2. Defending Proportionality ……………………………………….…………………49
2.2.1. The Rights Defense: Preserving The “Essence” of Rights……….…………….50
2.2.2. The System Defense: The Rationality of the Legal System……………………..57
3. Positional Objectivity and the Judicial Standpoint………………..………………64
3.1. The Concept of Positional Objectivity ……………………………………...………64
3.2. The Positional Objectivity of Courts………………………………………………..69
3.2.1. Respect and Impartiality…………………………………………………..……69
3.2.2. Correctness ………………………………………………………………...…..74
3.3. Specifying the Judicial Standpoint……………………………………………….….78
3.3.1. Administrability …………………………………………………………….…..80
3.3.2. Transparency………………………………………………………………..….83
3.3.3. Institutional Design ………………………………………………………….…85
3.3.4. Cognitive Constraints……………………………………………………….….87
Conclusion ……………………………………………………………………………...89
Abstract
This Article challenges the pervading orthodoxy in constitutional theory that particularized judicial decision-making may be desirable in an ideal world but that in practice it empowers judges to an extent unacceptable in a democracy. Drawing on Amartya Sen’s conception of positional objectivity, it argues that proportionality can be an objective, impartial and viable constitutional method. As comparative experience confirms, proportionality allows judges to fine-tune their analysis to specific contexts without jeopardizing the objectivity of their final decisions. Contrary to the prevailing view, proportionality is no less defensible, from an institutional perspective, than competing methods of constitutional interpretation. After rejecting traditional defenses of proportionality that seek its strength either in the nature of constitutional rights, as Justice Breyer’s dissent in Heller, or in the nature of a constitutional system, the Article specifies the positional objectivity of courts in relation to four different audiences: the litigants, lower courts, the political institutions and the judges themselves.
Positional Objectivity and the Case for Proportionality Analysis
in Constitutional Law
Introduction
One unintended consequence of the Supreme Court’s recent decision in District of Columbia v. Heller[1] will be to reopen the grand debate about particularized judicial decision-making in constitutional law. Is case-specific constitutional interpretation ever legitimate? Can judges balance competing interests in an objective and impartial fashion? What standpoint do courts take in deciding if and when “political institutions can act inconsistently with constitutional rights”[2], and is that standpoint defensible within the larger constitutional structure? What conception of rights informs contextual decision- making?
Building on Justice Breyer’s dissent in Heller, this article argues that proportionality answers these questions convincingly. Hailed as the “most successful legal transplant of the second half of the twentieth century,”[3] proportionality constructs the judicial standpoint to circumvent the binary choice between strict rules and flexible standards.[4] It places traditional “free balancing”[5] within a larger conceptual framework that can rein in judicial discretion[6] and offers judges a method that is structured without being rigid, and flexible while remaining reasonably predictable.[7] Contrary to the view dominant in contemporary scholarship, its institutional dimension constitutes proportionality’s main strength, not its weakness. Drawing on Amartya Sen’s conception of positional objectivity,[8] this article shows how judges can fine-tune their analysis to the context of a given case without jeopardizing the objectivity of their final decision. This approach emphasizes the mutability of institutional roles in the judicial process, thus adding to the case against the “cognitive illiberalism” of courts a much needed normative dimension.[9]
Justice Breyer’s dissent in Heller represents the most elaborate articulation of the proportionality test to date[10], one that could be generalized across the constitutional domain.[11] That case involved a Second Amendment challenge to the constitutionality of a District of Columbia regulation on handguns. After finding, in a 5 to 4 decision, that the individual interest in self-defense is a core interest protected by the “right to keep and bear arms,” the Court applied categorical reasoning to strike down the regulation as unconstitutional. [12] The dissents argued that the interest in self-defense was “at most subsidiary” [13] and thus fell outside of the core of the right. In his dissenting opinion, Justice Breyer applied a proportionality test to examine whether the District’s infringement of the Second Amendment right was justified. Stated in a general form,[14] this method requires judges to inquire, successively, into (1) the purpose of the governmental regulation – in Heller, that was the District’s interest in reducing gun-related violence in urban areas[15] - (2) its suitability for achieving that purpose, (3) whether the regulation is necessary given the availability of less restrictive means and, finally, (4) the balancing of the degree of infringement on the right in question against the collective benefit the infringement will yield.[16]
Will Justice Breyer’s dissent share the fortune of other famous dissents that eventually shaped constitutional doctrine?[17] While it is impossible to know how it will persuade future judges, it might be telling that, looking across the world constitutional map, proportionality is “a universal criterion of constitutionality.”[18] This method enables judges “to evaluate the work of the political branches of government from a common perspective and without regard to their own political and moral philosophies.”[19] Scholars have argued that proportionality is “an intrinsic part of the structure of rights and the [legislator’s] limited override power.”[20] Irrespective of where the source of its appeal is located, there is agreement that proportionality has developed “with the greatest degree of sophistication.”[21]
Unsurprisingly, not everyone is spellbound. For Justice Scalia, proportionality is “freestanding ‘interest-balancing.’”[22] Scholars question its appropriateness especially in heterogeneous societies where pluralism is a permanent “circumstance of politics.”[23] They argue that proportionality is rooted in intuitionism rather than reason,[24] or that is a mechanism for perpetuating entrenched asymmetrical relations of power in society.[25] After surveying more than three decades of proportionality analysis in German law, David Currie concluded: “[a] balancing test is no more protective of liberty than the judges who administer it.”[26]
There is an interwoven layer of criticism berating proportionality for its approach to the nature of constitutional rights. During balancing, judges break the institutional shell that encases the right, reach inside for the interest that the right protects and weigh the loss to that interest (in Heller, the individual interest in self-defense) against the gain to the public good promoted by the regulation.[27] But when the institutional shell is cracked, the deontological nature of the right is likewise fractured. How could free speech continue to act as a “firewall”[28] that protects the rightholders against the government if the right could be limited whenever judges are convinced that the collective interest demands it? And don’t some rights – perhaps free speech but certainly the right not be enslaved or tortured – deserve categorical protection? The “sin” of proportionality, in this view, is to legitimize utilitarian calculus when the point of constitutional rights is to disallow just such calculations.[29]
This article answers the above challenges and structures the case for proportionality as follows. Part one distinguishes between two approaches to constitutional rights: rights as structural reasons and rights as substantive reasons. According to the former approach, rights are reasons about how the constitution allocates decision-making authority in order to satisfy individual wants. In the latter approach, rights are super-valued interests that receive constitutional protection by virtue of their judicially recognized strength in each given case. I call the model based on the conception of rights as structural reasons “allocational,” and the other the “proportionality” model. Analysis shows that, contrary to conventional wisdom, the constitutional allocation of institutional roles is as present in the proportionality model as it is in the allocation model, whose advocates invoke its institutional alertness as proof of its superiority.[30]
Part two is a description of the proportionality model followed by a critical analysis of the two main defenses of its objectivity and impartiality. The description is comparative and looks closely at the content of proportionality in Germany and Canada, two systems where the method was crafted and honed. The analysis indicates that variations in the structure of the model in these two systems can be traced to different perceptions of the judicial role. Next, the article examines Justice Breyer’s dissenting opinion in Heller and maps it onto the cosmopolitan model of proportionality. It finds, unsurprisingly, that the most contentious part of proportionality is its last step: the balancing of competing interests. If it is true that “when costs are unavoidable, balancing becomes necessary,”[31] then any defense of proportionality must prove the existence of an institutionally defensible judicial standpoint within law’s “empire of objectivity.”[32]
The next part discusses the two most prominent of these defenses: one that seeks grounding in the nature of constitutional rights, and a second that draws on the nature of the constitutional system. The first defense, which is central to the reasoning in Heller,[33] as well in many foreign systems,[34] distinguishes between the core and the penumbra of a right. In this view, balancing should protect the core of rights and allow for tradeoffs only at their paler edges. As the article shows, this distinction only compounds the standpoint problem, since the core of a right can be identified in as many ways as there are positions from which to approach it. The second answer to the standpoint problem draws on the nature of the constitutional system. Scholars have argued that an objective judicial standpoint is an integral part of the “general normative structure of the legal system,”[35] one that it is presupposed by rational legal discourse[36] and that it is a necessary secondary rule for solving constitutional conflicts.[37] These answers are sound but ultimately inadequate since they employ conceptions of judicial objectivity ill-suited for particularized judicial decision-making.
The last part introduces a new conceptual framework that explains and justifies the judicial standpoint in proportionality analysis. At the core of this defense is the concept of positional objectivity, as developed by Amartya Sen. Positional objectivity makes two contributions to the nature of proportionality. First, it explains a salient feature of proportionality, that it treats the parties “with equal respect and concern.”[38] Second, it serves as a starting point in articulating a structural method for testing the outcomes of proportionality analysis for correctness. In the past, the criteria for correctness have been procedural (has the judge accurately applied the four steps of proportionality analysis?) or substantive (is the outcome supported by this or that theory of justice?). By emphasizing the mutability of institutional roles, positional objectivity reveals a structural dimension of correct outcomes for proportionality analysis. An outcome of judicial balancing is correct in this sense if it is the outcome that the parties themselves would have reached if they occupied the trans-positional role of the decision-maker. Finally, this part introduces four different specifications of the positional objectivity of courts in proportionality analysis, in relation to four different audiences: lower courts (which require administrability), the litigants (who require transparency), political institutions (which demand fidelity to institutional design), and the judges themselves (cognitive constraints).
1. Two Models of Constitutional Rights.
Rights are reasons in the process of constitutional interpretation. They can be understood as either structural or substantive reasons. The former are reasons about how the constitution allocates the decision-making authority regarding the satisfaction of individual wants. For instance, the Second Amendment allocates to rightholders the liberty to make decisions about owning and bearing guns. The constitution directs the state to protect decisions of the rightholders regarding their constitutionally protected interest. The institutional scheme that allocates decision-making powers becomes the reason why a right is protected. I will refer to this as the “allocation” model. By contrast, substantive reasons refer to the weight, not the nature,[39] of wants and interests protected as constitutional rights.[40] The comparative weight of the substantive individual interest (for example the right to keep and bear arms protects the interest in self-defense[41]) in opposition to the collective interest (in Heller, the District’s interest in lowering crime rates in urban areas) ultimately determines its level of constitutional protection. I will refer to this as the “proportionality” model.
It must be pointed out at the outset that all constitutional systems, and indeed most constitutional theorists, embrace a combination of models, although to different degrees and in different forms. Few believe that one model fits all situations.[42] The conception of rights as substantive reasons, which focuses constitutional analysis on the limitation – as opposed to the existence – of the right, took center stage in American law roughly during the Warren Court era.[43] Topical debates about torture show a persistent uneasiness with entrusting judges to make decisions about limitations on rights.[44] Similarly, in Germany, where the proportionality model was first conceptualized,[45] and from where it has spread around the world,[46] the Basic Law – Germany’s constitution – proclaims the right to dignity as inviolable.[47] Likewise, scholars who have defended the model of rights as categorical reasons will yet acknowledge situations when rights may need to be limited.[48] Few believe that one model fits all situations.[49]
1.1. Rights as Structural Reasons: The Allocation model.
Understood as structural devices, rights delimit constitutional spheres of authority.[50] Whether a rightholder burns a flag or criticizes the government’s energy policy, her right to free speech shields her actions from governmental intrusion, no matter how strong the government’s reasons for interference might be. Put differently, the right gives her an exclusionary reason to demand courts to dismiss as irrelevant – not weak or otherwise defective – claims to the satisfaction of collective goals that conflict with the interests that her right protects.[51] Similarly, it enables judges to act on the right-holder’s (structural) reason that the constitution has made her the decision-maker in these matters, irrespective of the judge’s personal reaction to the substantive exercise of her right.[52] To be sure, the allocational scheme itself is “the very product of an interest-balancing by the people,” as Justice Scalia reminds us.[53] But the adoption of the free speech right alters the nature of the protected interests: speech is no longer protected because it is important but rather because the constitution says so.