Proportionality in the age of Populism

Proportionality is the most successful case of constitutional migration and is often conceived to be a powerful signal of global constitutionalism, with the US standing as almost the sole exception to this phenomenon. Recently, Jamal Greene argued that proportionality is a better doctrinal candidate than the categorical approach to tackle the current challenges in US constitutional law. We argue, contrary to Greene, that proportionality may not be the best doctrinal candidate in the US taking into consideration the dramatic populist shift in the US. 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.

Defending liberal constitutionalism in times of crisis

A convincing response to the challenges to global constitutionalism posed by populism and increasing polarisation must include an improved, and therefore more forceful, account of the values underlying liberal constitutionalism. This, however, is easier said than done. The discussion about global constitutionalism and proportionality has reached the preliminary conclusion that proportionality is essentially a test of reasonableness or public reason. This, however, seems to merely shift the focus from one abstract concept (proportionality) to another (reasonableness/public reason). In my paper, I will claim that we can move towards a clearer and more appealing account of proportionality-based rights adjudication by focusing straightforwardly on the moral values of equality and liberty and their proper interpretations. To this end, I will rely on Ronald Dworkin’s work on human dignity and its two sub-principles of objective importance and personal responsibility.

Semi-liberal Constitutions

The paper will claim that the dominance of liberal constitutional analysis in the theorization of global constitutionalism has adverse effects on human rights in semi-liberal constitutional settings. After introducing the conceptual category of semi-liberal constitutionalism the paper will describe the problem of shaping and interpreting normative commitments in a semi-liberal constitutional regime. I will argue that an insufficient awareness to the nature of semi-liberal normativity coupled with the use of open-ended proportionality tests may result in skewed reasoning by both courts and policy makers trying to resolve human rights conflicts in semi-liberal constitutional regimes. The application of liberal rights reasoning in semi-liberal settings neglects the power differentials inherent in such systems and tends to over protect the rights of some at the expense of the rights of others.