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.
Our next Annual Conference will take place from July 6-9, 2021. It will be held in a completely novel way as a fully online Conference: ICON•S Mundo.
The Call for Papers for ICON•S Mundo is available here. Submissions for papers and panels must be made by May 1, 2021.
Log into your ICON•S account and apply for ICON•S Mundo by submitting your proposal.Apply for ICON•S Mundo