Mark Kende on "The Surprising Proportion of ‘Proportionality’ Review in U.S. Supreme Court Constitutional Decisions"

Mark Kende on "The Surprising Proportion of ‘Proportionality’ Review in U.S. Supreme Court Constitutional Decisions"

Orly Rachmilovitz
January 10, 2017

Based on a presentation by Professor Mark Kende at the ISCP's June 2016 conference, Between Europe and the United States: The Israeli Supreme Court in Comparative Perspective

Proportionality analysis usually considers factors such as whether a law serves a proper purpose, whether there is a rational connection between the means the law selects and achieving that proper purpose, the absence of less restrictive alternatives, and the proper balance between the right infringed and the government interest. This approach involves standards, as opposed to rules. Nations such as Germany, South Africa, Canada, and Israel utilize this approach.

I argue that despite the rule orientation and categorizing tendencies of United States constitutional law, its formalism, negative rights, libertarianism, its occasional use of textualism and originalism, not to mention the U.S. Constitution’s age and vagueness, the United States Supreme Court nonetheless engages in a lot of balancing. It even conducts a proportionality analysis, though not precisely as in foreign nations. This balance occurs even though there is a fight in the Supreme Court about whether foreign law should be relied upon. South Africa and Germany have integrated communitarian constitutional values that perhaps are more amenable to standards than categories. Normatively, however, such balancing in the United States should increase and there may even be a trend in that direction. I identify four types of balancing:

  1. Level 1 Proportionality: This is the approach that is closest to what we see abroad. Justice Breyer’s Second Amendment gun control dissent in D.C. v. Heller uses proportionality explicitly. Breyer relies on D.C.’s record of violence, the history of the Second Amendment and general principles of deference to the legislature to conclude that the justification for D.C.’s ban on firearms outweighs the arguments that the Second Amendment establishes an individual right. He also examines less restrictive alternatives. Breyer’s focus on consequences is important because there is some confusion as to whether American proportionality is impact or intent oriented. American scholars have distinguished between ends  balancing and alternative-means balancing, based on how empirical data is used. Breyer employs something like the two stage South African and European proportionality approach. First he says the individual right may exist. But nonetheless there are justifications for limiting the right. Now this is just a dissent by Breyer, but Scalia’s majority opinion concedes that there are numerous possible restrictions on firearms access, such as having a felony record or serious mental health problems. These exceptions were heavily criticized by conservatives, but Scalia actually is engaged in implicit balancing when he says such restrictions can be allowed. Scalia also never fully clarifies his level of scrutiny.


  1. Level 2 measurement proportionality: This is less similar to Europe.  With the Eighth Amendment, whether punishment is cruel and unusual typically depends on a “narrow proportionality approach.”  But the Court has recently broadened its notion of cruelty. For example, the Supreme Court has outlawed the death penalty for juveniles and for those with intellectual disabilities. Popular constitutionalism (constitutionalism that is motivated by public opinion) may have played a role here. Still the Court remains highly deferential to the legislature and only grossly excessive punishments qualify. Another example is punitive damages. In B.M.W. v. Gore, the issue was whether a punitive damage award was excessive – the ratio between the compensatory damages and the potential damages. In a later case, the Court rejected a punitive damages award that was 145 times more than the compensatory damages. The problem with limits on punitive damages is that they fail to deter conduct.  Lastly, there is Section 5 of the Fourteenth Amendment. Boerne v. Flores involved the Religious Freedom Restoration Act, which applies strict scrutiny to laws burdening religion. The Court said that Act was not congruent and proportional to the problem since there was no evidence of nationwide discrimination on the basis of religion.


  1. Level 3 Open Balancing: This is where the Supreme Court openly balances interests. For example, the Dormant Commerce clause is one area where the court weighs the state law against the law’s burden on out-state-businesses. The Fourth Amendment prohibits unreasonable searches and seizures and we have cases of balancing in that area. In Riley v. California, the Court invalidated the warrantless search of a cell phone incidental to an arrest. The Court found that the privacy intrusion in searching data on the phone far exceeded any public gains . There’s also the undue burden test in abortion cases and there’s procedural due process balancing.  The Court has even weighed the burden of the individual versus the state interest in the war on terror cases.  Regarding free speech, the Court in Schneider v. N.J., reasoned that free speech trumped the interest in street sanitation for a ban on leaflets. Finally, there is the Stolen Valor Act decision where someone could be prosecuted for lying about receiving military awards. The Court struck down that law, and Justice Breyer concurred. He said the value of the speech is quite low, but concluded there were less restrictive alternatives that should be followed.


  1. Masked Balancing: This is perhaps the most controversial area. A large amount of balancing actually occurs when the Court claims to use a rule or clear legal standard but does not. For example – the Supreme Court says that there are three tiers of scrutiny (rational, intermediate and strict scrutiny), but we actually have more levels of scrutiny in equal protection cases: rationality review with bite, intermediate scrutiny that looks like strict scrutiny (VMI case), strict scrutiny that isn’t really strict scrutiny (like the affirmative action case). etc. The Court’s intermediate scrutiny itself is really a kind of balancing. Strict scrutiny is essentially saying that the law is going to be struck down, rational basis is presumptively saying the law is going to be upheld,  But intermediate involves weighing and balancing. Justice Marshall said that in equal protection cases, we don’t just have two levels, or even three, we have a sliding scale.  For example, in San Antonio v. Rodriguez, on school financing,  he said the individual interests were too powerful to be treated with rational basis review.

So what are some advantages and disadvantages of increased proportionality use in the United States? There is more transparency and candid analysis in terms of addressing the specific nuanced issues (rather than using presumptions based on levels of scrutiny), more empirical and fact-based analysis, and more contextual assessment. It is a methodology that could be applied throughout American constitutional law and remove some incoherence. This is important because American constitutional doctrine makes little sense in many areas, as diverse as the Commerce Clause, religion, and racial discrimination. It would also assist the Court in cases that involve new technology, as it is more flexible. And it promotes justice.

Two caveats: this doesn’t guarantee decisions will always be correct. For example in Board of Education v. Earls, Breyer used proportionality to uphold random warrantless searches of students who simply wanted to do extra-curricular activities. Another is that Supreme Court cases would not necessarily rule the same way as their foreign counterparts. For example in the Aviation Security Case from the Federal Constitutional Court of Germany, the issue was whether the military could shoot down a plane of terrorists to prevent the plane from going into a building full of innocent people, even if there was just one innocent person on the plane. The Constitutional Court ruled in favor of that single person’s dignity interest, and the possibility that the military may have misjudged what’s happening, was a sufficient reason not to permit the military to shoot down the plane. In the United States, even using proportionality analysis, this case would come out differently. First, the Supreme Court would say this is a political question, so they would not address it in the first place. But even were they to reach the merits, they would probably take a more utilitarian approach: saving the many at the expense of a few (the death penalty is permissible, in part, on this basis) without weighing the dignity concern that the German court considers. So proportionality would not ensure the same result but could advance coherence and fact-based analysis.