The normative necessity of proportionality

In “Rights as Trumps?” Greene argues that proportionality is better suited for adjudicating US constitutional rights claims than a Dworkinian, categorical approach, because proportionality is more transparent, more predictable, and better able to accommodate complex rights collisions in a pluralistic society. This paper grounds Greene’s proposal with a stronger theoretical claim, namely, the normative necessity of proportionality. A variety of reasons can justify a migration of proportionality to a new context, but the common denominator across the different migrations is that proportionality is normatively necessary for the adjudication of constitutional rights. This paper develops that argument, identifying the values — deriving from constitutionalism, deliberative and representative democracy and the rule of law — that judges should pursue in adjudicating constitutional rights, and explaining why proportionality achieves those values at the highest level.