Proportionality in the Age of Populism

The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, Jamal Greene argued in a provocative article, titled “Rights as Trumps?”, that proportionality should be openly adopted in the U.S. as a more sophisticated and up-to-date doctrine than the rights-as-trumps categorical approach. Current constitutional adjudication, he contended, requires a nuanced and factually based analysis of the sort afforded by proportionality. We argue, contrary to this argument, that proportionality may not be the best doctrinal candidate in the U.S., taking into consideration the populist shift in the U.S. We wish to make a more general point about the use of proportionality in the new global age of populism. The rise of populism, and the increasing signs of democratic backsliding across the globe, require the employment of a more categorical approach, that better serves the purpose of red-lining and the enhancement of the democratic process.