Proportionality in the Age of Populism

Abstract

The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, the Harvard Law Review has devoted its Forward, by Jamal Greene, to this doctrine. In a provocative and bold article, titled “Rights as Trumps?”, Greene argued that proportionality analysis 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.

Keywords: proportionality, populism, constitutional law, comparative constitutional law, global constitutionalism

JEL Classification: K10