This paper is likely to explore the relationship(s) suggested by Jamal Greene’s paper between judicial doctrine and political polarization, as well as the capacity of judicial decisions and judicial doctrine to shape decisions by public and political actors. Jamal also writes, “proportionality at its best helps us to see when a dispute is better resolved through politics than through juridification.” I may comment on the relationship of this idea to approaches to deference to political judgments on facts, and on values. Finally, this paper may explore arguments in support of Greene’s paper that are grounded less on the impact on political discourse and decisionmaking and more on a conception of the role of courts as places of justice and a skepticism about having courts reach for articulation of “rule”, rather than allowing general rules to emerge from multiple contextualized decisions.
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.
A major thread running through “Rights as Trumps?” is its focus on whether proportionality or a categorical approach to rights can best serve a polity’s capacity to live up to a political commitment of the first order: the commitment of citizens of a pluralistic liberal polity to live together in peace and mutual recognition. The paper discusses two mechanisms by which proportionality may achieve this: (1) by lowering the stakes of constitutional rights adjudication and (2) by acknowledging the rights of different parties. I explore the conditions under which the first mechanism is achieved, focusing on two issues: the relation of proportionality to precedent, and the existence of “single case issues”. I next question whether proportionality offers meaningful recognition of both parties, focusing on different ways proportionality discourse deflates rights. The paper concludes that differences between the categorical approach and proportionality are smaller than Greene’s piece conveys.