Beyond the Binary: Toward A Third Way for Adjudicating Constitutional Rights

The literature and practice of constitutional rights adjudication around the world strongly suggest that institutional designers today have a rather limited choice set. Only two basic “models” seem available. The first model is proportionality analysis in which rights are defined expansively and courts are empowered to make context specific determinations. The second model is categorical analysis. Associated with the US, it entails a relatively narrow definition of rights and more limited tools for judicial evaluation of rights disputes that sharply bias results in one direction. This paper argues that there is another available model around which constitutional rights adjudication can be structured, which combines elements of both models and has independent merits not captured by either. The paper elaborates the new model and makes the case for its attractiveness in order to challenge the existing binary in constitutional rights adjudication and push scholars (and courts) beyond it.