All Things in Proportion? American Rights Doctrine and the Problem of Balancing

The Balancing Exercise and the Resolution of Rhetorical Antinomies in Judicial Decision‐Making

“…There is agreement that even if the doctrinal distinction between these two terms exists, “the two tests […] resemble each other in important aspects and are often discussed in tandem” (Cohen‐Eliya and Porat 2010, 265). It has also been noted by different scholars that while the US Supreme Court traditionally uses the term balancing , European constitutional courts prefer the term proportionality (Cohen‐Eliya and Porat 2010; Mathews and Sweet 2011). In order to argue that proportionality and balancing are applied in similar ways in judicial practice in different jurisdictions, Jud Mathews and Alec Stone Sweet have analyzed cases adjudicated by the US Supreme Court and have come to the conclusion that at least three levels of review in the United States — rational basis, intermediate review, and strict scrutiny—contained core elements of proportionality.…”

“…Sometimes balancing is considered as a process, and proportionality as an outcome of this process, as a “proportional result” (Barak 2012, 340–70); in other works, it is proportionality which is defined as a process, as “a stable analytical procedure for balancing” (Mathews and Sweet 2011, 101). Möller (2012, 710) has treated proportionality not as a principle but as “a doctrinal tool for the resolution of conflicts between a right and a competing right or interest, at the core of which is the balancing stage which requires the right to be balanced against the competing right or interest.”…”

On Constitutional Law Parameters and European Security Regulation

“…It is often said that the concept of proportionality is central to any transnational constitutionalism. 90 Generally, proportionality in EU law is taken to representing a balancing of means and ends and where the notion of 'appropriateness' constitutes the golden thread for deciding on the desirability and need for EU action in a given area. As Bernhard Schlink states:…”

Regulation and the Courts: Judicial Review in Comparative Perspective

“…In the American system, by contrast, individual rights rarely form the basis for judicial review of the market-regulating and welfare-distributing functions of the contemporary administrative state. This is a product of the rigid hierarchy of fundamental rights which is distinctive to the American system and which has been amply documented in scholarship on comparative constitutional law (Mathews and Stone Sweet, 2011;Barak, 2012: 509-27).…”