American balancing and German proportionality: The historical origins

International Journal of Constitutional Law

Volumn 8, Issue 2, 2010, Pages 263-286

  Cohen Eliya, Moshem ^a,b   Porat, Iddo ^b  

^a HARVARD UNIVERSITY   (United States)

^b Academic Center of Law and Business   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77955971976     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moq004     Document Type: Article

References (141)

1. See Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L.J. 819 (1999).
2. Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771 (1997).
3. Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects, 14 Cardozo L. Rev. 533, 533 (1993).
4. Neil Walker, Postnational Constitutionalism and the Problem of Translation, in European Constitutionalism Beyond the State 27 (J.H.H. Weiler & M. Wind, eds., 2003).
5. See Ann-Marie Slaughter, Judicial Globalization, 40 Va. J. Int'l J. 1113, 1116-1120 (2000).
6. Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int'l L.J. 191 (2003).
7. Lorraine Weinrib, The Postwar Paradigm and American Exceptionalism, in The Migration of Constitutional Ideals 84 (Sujit Choudhry ed., 2006).
8. David Law, Generic Constitutional Law, 89 minn. L. rev. 652 (2005).
9. Alec Stone Sweet documents the spread of proportionality in all countries of Continental Europe, as well as in Canada, Israel, South Africa, Eastern Europe, Latin America, and also in supranational courts such as the European Court of Justice and the WTO Appellate Body
10. Alec Stone Sweet & Jud Mathews, Proportionality, Balancing and Global Constitutionalism, Colum. J. Transnat'l L. 19 (forthcoming, 2008) (available at http://works.bepress.com/cgi/viewcontent.cgi?article=1010&context=alec_stone_sweet, last visited May 20, 2008).
11. David Beatty, The Ultimate Rule of Law (2004)
12. For a thoughtful critique of Beatty's approach, See Vicki C. Jackson, Being Proportional about Proportionality, 21 const. commentary 803 (2004).
13. See Printz v. United States, 521 U.S. 898, 921 n.11 (1997) (Justice Scalia expressed the view that "comparative analysis [is] inappropriate to the task of interpreting a constitution," and that "our federalism is not Europe's").
14. But see Vicki C. Jackson, Forward: Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109 (2005) (Arguing that Scalia's approach does not represent the general approach of the Supreme Court).
15. For two excellent recent accounts of American exceptionalism, see American Exceptionalism and Human Rights (Michael Ignatieff ed., 2005).
16. European and US Constitutionalism 49 (Georg Nolte ed., 2005).
17. For American resistance to applying proportionality analysis in American constitutional law, (pointing to the "dark side" of proportionality: "[i]t is an approach that may offer less constraint on political branches")
18. see also Richard Fallon, Strict Judicial Scrutiny, 54 UCLA. L.Rev. 1267, 1333 (2007).
19. Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49, 68 (Georg Nolte ed., 2005).
20. Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29, 32 (Michael Ignatieff ed., 2005).
21. See Frederick Schauer, The Convergence of Rules and Standards, N.Z. L. Rev. 303 (2003).
22. See also Simon Evans & Adrienne Stone, Balancing and Proportionality: A Distinctive Ethics? (Draft for discussion at the VII World Congress of the International Association of Constitutional Law (Athens, June 2007) (a copy with the authors) (responding to Schauer's account)
23. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987) (documenting the spread of balancing in American constitutional law).
24. (Portraying one version of strict scrutiny as a weighted balancing text)
25. For a recent example of the use of balancing in Supreme Court adjudication, see Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 Tex. L.Rev. 517 (2007) (discussing the use of balancing in affirmative actions cases).
26. See infra, section 3.2.3.
27. For the same debate in scholarly literature, see Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424 (1962) (arguing against balancing in First Amendment cases).
28. Wallace Mendelson, The First Amendment and the Judicial Process: A Reply to Mr. Frantz, 17 Vand. L. Rev. 479 (1964) (endorsing balancing in First Amendment cases).
29. Dieter Grimm, Proportionality in Canadian and German Constitutional Law Jurisprudence, 57 Univ. of Toronto L.J. 383 (2007).
30. Aharon Barak, Proportional Effect: The Israeli Experience, 57 Univ. of Toronto L.J. 369 (2007).
31. For an account of American unilateralism see Jed Rubenfeld, Commentary: Unilateralism and Constitutionalism, 79 N.Y.U. L. Rev. 1971 (2004) (documenting American unilateralism).
32. Elsewhere, we have developed a cultural account regarding the differences between American balancing and German proportionality
33. See Moshe Cohen-Eliya and Iddo Porat, The Hidden Foreign Law Debate in Heller: Proportionality Approach in American Constitutional Law, 46 San Diego Law Review 367 (2009)
34. In our article we suggested that Justice Bryer's attempt to introduce proportionality into American constitutional law may be problematic since it disregards the different cultural meanings that are associated with proportionality in Germany and balancing in the U.S.
35. The literature on proportionality is immense. We note here a few recent theoretical and analytical engagements with the subject: Beatty.
36. Robert Alexy, A Theory of Constitutional Rights (2002)
37. Julian Rivers, Proportionality and Variable Intensity of Review, 65 Cambridge L.J. 174 (2006).
38. Mattias Kumm, What Do You Have in Virtue of a Constitutional Right? On the Place and Limits of the Proportionality Requirement, forthcoming in Law, Rights, Discourse: Themes of the Work of Robert Alexy (S. Paulssen, G. Pavlokos eds., 2007).
39. Alec Stone Sweet & Jud Mathews, Proportionality, Balancing and Global Constitutionalism, Columbia Journal of Transnational Law 19 (forthcoming, 2008) (available at http://works.bepress.com/cgi/viewcontent.cgi?article=1010&context=alec_stone_sweet, last visited May 20, 2008).
40. J. Lowell & A. Lester, Proportionality: Neither Novel Nor Dangerous, in New Directions in Judicial Review 51 (J.L. Jowell and D. Oliver, eds., 1988).
41. HCJ 5016/96 Horev v. Minister of Transportation (an English translation of the Court decision is available at http://elyon1.court.gov.il/files_eng/96/160/050/A01/96050160.a01.htm [last visited May 20, 2008]).
42. For definitions of balancing in American constitutional law
43. See also Iddo Porat, The Dual Model of Balancing, 27 Cardozo L. Rev. 1393 (2006).
44. Iddo Porat, On the Jehovah Witnesses Cases, Balancing Tests, Indirect Infringement of Rights and Multiculturalism: A Proposed Model for Three Kinds of Multicultural Claims, 1 Law and Ethics of Human Rights 429 (2007)
45. Schneider v. New Jersey, 308 US 147 (1939).
46. (Criticizing the Canadian Supreme Court for not following the analytical steps of the proportionality test and for conducting undisciplined balancing in the necessity test)
47. (Emphasizing the structural and analytical nature of proportionality analysis)
48. (Emphasizing the neutral characteristics of proportionality)
49. Robert Alexy goes as far as arguing that the three subtests of the proportionality analysis follow logically from the concept of rights as principles
50. See also Donald H. Regan, Judicial Review of Member-State Regulation of Trade Within a Federal or Quasi-federal system: Protectionism and Balancing, Da Capo, 99 Mich. L. Rev. 1853, 1853 note 1 (2001).
51. "[N]either pure 'rationality review' nor pure 'less restrictive alternative analysis' is a form of balancing as I use the term. Both these modes of review focus on whether there are any benefits, either from the regulation in itself, or from the regulation as opposed to some alternative. Neither requires the comparison of benefits and burdens." One may claim that judges do engage in balancing even in the first and second subtests.
52. Guy Davidov, Separating Minimal Impairment from Balancing: A Comment on R. v. Sharpe (B.C.C.A.), 5 Rev. Const. Stud. 195 (2000).
53. However, to the extent that balancing enters these tests, it is an example of smuggling in the third subtest into the first and second subtests
54. Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464, 468 (1969).
55. Guy M. Struve, The Less Restrictive Alternative Principle and Economic Due Process, 80 Harv. L. Rev. 1464 (1967).
56. We are indebted to Prof. Bruce Chapman for the idea of this example.
57. Beatty relies on David Luban, Incommensurable Values, Rational Choice and Moral Absolutes, 38 Clev. St. L. Rev. 65, 75 (1990), stating that the Court in Horev reached a commonsense conclusion based on a small-large trade-off.
58. Lorraine Weinrib, The Supreme Court of Canada and Section 1 of the Charter, 10 Sup. Ct. Rev. 469 (1988).
59. Lorraine Weinrib, Constitutional Conceptions and Constitutional Comparativism, in Defining the Field of Comparative Constitutional Law (Vicki Jackson & Mark Tushnet eds., 2002) (describing proportionality as a method for protecting rights).
60. David Beatty, Constitutional Law in Theory and Practice (1995) (same)
61. R. v. Oakes,1 S.C.R. 103 (1986).
62. The strict Oakes test was eroded quite rapidly in R. v. Edward Books and Art [1986] 2 S.C.R. 713, 772, when the Court deferred to the government in the application of the necessity subtest of proportionality.
63. For an excellent reading of the erosion of the Oakes test, see Sujit Choudhry, So What is The Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1, 35 Sup. Ct. L. Rev (2d) 501 (2006).
64. See also Christopher M. Dassios & Clifton P. Prophet, Charter Section 1: The Decline of the Grand Unified Theory and the Trend towards Deference in the Supreme Court of Canada, 15 Advocates' Quarterly 289, 291 (1993).
65. Robin Elliot, The Supreme Court of Canada and Section 1-The Erosion of the Common Front, 12 Queen's L.J. 277, 281 (1987).
66. Gerard La Forest, The Balancing of Interests under the Charter, 2 n.j.c.l. 133 (1993).
67. Ruth Colker, Section 1, Contextuality, and the Anti-Advantage Principle, 42 University of Toronto L.J. 77 (1992).
68. Gerhard Ritter, Frederick The Great: A Historical Profile 166 (Translated with introduction by Peter Paret, 1968) (1954)
69. The principle of the Rechtsstaat is not identical to the principle of the rule of law, despite the liberalizing effect of both. The Anglo-American conception of natural rights assumes that men and women have rights that precede the existence of the state, whereas the German Rechtsstaat is more state-centered. Thus, Leonard Krieger in his classic The German Idea of Freedom 460 (1957) argued that the Rechtsstaat is not "defined in terms of a state which permitted to the individual rights apart from the state. It became now simply the kind of state whose power was articulated in legal modes of action-that is, in measures which conformed to general rules." Krieger sketches a conservative and even authoritarian concept of the Rechtsstaat.
70. See also Hans Rosenberg, Politische Denkstromungen in deutschen Vormärz (1972)
71. (The state was conceived in Germany not only as an institutional safeguard for the protection of individual rights but also as a "fatherland")
72. Kenneth F. Ledford, Formalizing the Rule of Law in Prussia: The Supreme Administrative Law Court (1876-1914), 37 Central European History, 203, 222 (2004).
73. The compromise between the bureaucrats, who supported internal administrative review, and the liberals, who preferred external judicial review of the administration, was to establish a separate system of administrative courts, composed of equal numbers of jurists and bureaucrats
74. Section 127 of the State Administrative Act of 1883 granted the Prussian Supreme Administrative Court explicit authority to review any governmental order after exhausting all administrative appeals
75. Lothar Hirschberg, Der Grundsatz der Verhältnismäßigkeit 3 (1981)
76. Decisions of the Prussians Administrative Law Court, 9 (1882) 353
77. Vernon L. Lidtke, The Outlawed Party: Social Democrats in Germany 1878-1890, 241-262 (1966).
78. Otto Mayer, Deutsches Verwaltungsrecht, 1. Bd., S. 267 (1895).
79. David Blackbourn, The Discreet Charm of the Bourgeoisie: Reappraising German History in the Nineteenth Century in The Peculiarities of German History 157 (David Blackbourn & Geoff Eley eds., 1984).
80. (Noting that the Rechtsstaat principle was necessary for the creation of a solid middle-class society and fostered capitalist modernization in nineteenth-century Germany)
81. For an excellent overview of the radical formalist characteristics of German legal thought in the nineteenth century, see Mathias Reiman, Nineteenth-Century German Legal Science, 31 B.C. L. Rev. 837 (1990).
82. We would like to emphasize that we are not claiming that the PSAC made no reference to what we now refer to as proportionality in the strict sense. It is clear, however, that the rhetoric of balancing was not pervasive in its decisions and that the legal analysis focused more on the empirical and logical connections between means and ends.
83. See Jurgen Schwarze, European Administrative Law, Ch. V, C5 (2006).
84. Weber viewed formal rationality as almost the "twin brother of liberty," since it prevents the government from taking arbitrary action
85. See M. Weber, Diskussionerede zu dem Vortag von H. Kantorowicz Rechtwissenschaft und Soziologie, in Gesammelte Aufsätze zur Soziologie und Sozialpolitik 477-481 (1924).
86. The translation into English of parts of this article can be found in Weimar, A Jurisprudence of Crisis 50, 53 (A. Jabloner & B. Schlink eds., 2000).
87. For similar reasons, Hans Kelsen opposed the inclusion of a bill of rights in the German constitution. Because rights are drafted in an open-ended manner, the inclusion of rights in a constitution would grant judges too much power to interpret the meaning of such rights.
88. Mathias W. Reimann, Free Law School, in Encyclopedia of Law and Society 605 (David S. Clarck, ed., 2007) (showing that the Freirecht movement was not part of mainstream German jurisprudence).
89. For a thoughtful comparison between the Freirechtschule and American realism, see James Harget & Steohen Wallace, The German Free Law Movement as the Source for American Legal Realism, 73 Va. L. Rev. 399 (1987).
90. See Duncan Kennedy, Towards a Historical Understanding of Legal Consciousness: The case of Classical Legal Thought in America, 1850-1940, 3 Res. L. & Soc'y 3 (1980).
91. Thomas Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1, 50 fn. 180 (1983).
92. See e.g. Neil Duxbury, Patterns of American Jurisprudence 10 (1995).
93. See Thomas C. Grey, The New Formalism, (September 6, 1999). Stanford Law School, Public Law and Legal Series, Working Paper No. 4, page 5, Available at SSRN: http://ssrn.com/abstract=200732 (last visited May 23, 2008).
94. See also Richard Pildes, Forms of Formalism, 66 U. Chi. L. Rev. 608, 667 (1999) (arguing that according to the formalist conception, right answers are "derived from the autonomous, logical working of the system").
95. See also Morton J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (1992) 17-19, 198-199.
96. Holmes wrote with regards to the consideration doctrine that framed Langdell's discussion of the mailbox rule: "The doctrine of consideration is merely historical .... Consideration is a mere form. Is it a useful form? If so, why should it not be required in all contracts? ... Why should any merely historical distinction be allowed to affect the rights and obligations of business men?".
97. Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465 (1897).
98. Oliver W. Holmes, Privilege, Malice, and Intent, in Collected Legal Papers 122 (1920).
99. Holmes, The Path of Law, in Collected Legal Papers
100. Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908).
101. Benjamin Cardozo, The Nature of the Judicial Process 122 (1921)
102. Roscoe Pound, A Survey of Social Interests, 57 Harv. L. Rev. 1, 4 (1943).
103. See, generally, Robert S. Summers, Instrumentalism and American Legal Theory (1982).
104. See John .M. Kelly, A Short History of Western Legal Theory 330 (1992).
105. (Describing the origins of the conception of law as the arena for balancing conflicting social interests, starting with August Comte and Rudolf von Jhering)
106. James E. Herget & Stephen Wallace, The German Free Law Movement as The Source of American Legal Realism, 73 Va. L. Rev. 799 (1989).
107. Cf. Carl J. Friedrich, The philosophy of Law in Historical Perspective 156-157 (1963) arguing that the progressives' adoption of German balancing involved a change in the original concept of balancing.
108. Rudolf von Jhering, In the Heaven of Legal Concepts, translated in Morris R. Cohen & Felix S. Cohen, Readings in Jurisprudence and Legal Philosophy 678 (1951).
109. Lochner v. New York, 198 U.S. 45 (1905).
110. 198 U.S at 75-76.
111. Arizona cooper co. v. Hammer, 250 U.S. 400 (1919) (Justice McKenna dissenting).
112. Hudson County, 209 U.S. 355.
113. Harlan F. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 23-24 (1936) (emphasis added).
114. For a general review of the use of balancing during the McCarthy era, and for objections on the Court, see Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941-1953, (1997).
115. Dennis v. United States, 341 U.S. 494 (1951).
116. The major cases involved in this debate were American Communications Ass'n v. Douds, 339 U.S. 382 (1950); Barenblatt v. United States, 360 U.S. 109 (1959); Konigsberg v. State Bar, 366 U.S. 36 (1961); Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1 (1961).
117. ("As a result of this blatant misuse, the balancing test in civil liberties litigation deservedly acquired a bad reputation among liberal justices, and Warren Court opinions are filled with angry denunciation of its use")
118. John H. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1490-1491 (1975).
119. ("[Balancing] was hardly the attitude of the Warren Court, at least in its later years. During [that period] the Court was making clear its dissatisfaction with a general balancing approach....").
120. 347 U.S. 483 (1954).
121. (Arguing that the major constitutional cases of the Warren Court were not balancing cases. Referring to Brown v. Board of Education, 347 U.S. 483 (1954), he writes: "Of course. .. there were competing interests at stake. But the Court based its decision-as has society-not on the balance of those interests, but on the intolerability of racial discrimination").
122. See, e.g., Chief Justice Warren in his opinion in United States v. Robel, 389 U.S 258, (1968): "it has been suggested that this case should be decided by 'balancing' the governmental interests ... against the First Amendment rights ... This we decline to do.".
123. Interestingly, the new German Constitutional Court held that proportionality was a constitutional principle, in spite of the fact that the German Basic Law of 1949 provided no textual basis for such a conclusion
124. The Constitutional Court derived the principle of proportionality from another constitutional principle, that of the Rechtsstaat (see above, at section 2.1.), but it did not elaborate on the connection between the two, possibly, as Dieter Grimm has suggested, because the Court could not have predicted the important role that the proportionality test would subsequently play in German constitutional law, and, once its importance became clear, it had already become a well-established legal principle and there was no occasion to explain its origins.
125. The German Constitutional Court has held, for instance, that despite the fact that the rights to artistic speech and freedom of religion are drafted in absolute terms in the 1949 Basic Law, they can be limited when the government wishes to promote a different constitutional value
126. See Michael Sachs, Grundgesetz: Kommentar 94, 96 (1996)
127. Haurst Dreier, Grundgesetz-kommentar 83 (1996)
128. See also the Court's decision in the Religious Oath case, 33 BverfGE 23 (1972)
129. (Parts of the decision are translated to English in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 453 (2nd ed., 1997).
130. (Noting that European constitutional courts, in particular the German Court, routinely engage in balancing)
131. This has been linked to the fundamental change in German constitutional law from a procedural to a substantive and highly activist model of democracy
132. Hence, contrary to the almost obsessive engagement of American constitutional law in the antimajoritarian problem of judicial review, few would argue in Germany that the Constitutional Court's engagement in balancing between competing values lacks legitimacy
133. For an ideological (libertarian) critique of the jurisprudence of the German Constitutional Court, see Ernst W. Böckenförde, Grundrechte als Grundsatznormen in des., Staat, Verfassung, Demokratie 167 (1991).
134. For a jurisprudential critique, see Erhard. Denninger, Freiheit - Wertordnung - Pflichtordung: Zur Entwicklung der Grundrechtjudicatur des Bundesverfassungsgericht, Juristenzeitung 30 545 (1975).
135. Helmut Goerlich, Wertordung und Grundgesetz 140 (1973)
136. Klaus Stern, Das Staatsrecht der Bundesrepublik Deutchland (1988), Band III/1, 913
137. Wolfgang Zeidler, Grundrechte und Grundenscheidungen der Verfassung im Widerstreit, 53 Deutschen Juristentages 133 (1980)
138. Carl Schmitt, Die Tyrannei der Werte, in Säkularisation and Utopie: Ernst Forsthoff zum 65. geburtstag 37, 45 (Deoring & Greve eds., 1967).
139. In recent years conservative justices in the Court relied on the categorical wording of the First Amendment in order to strike down progressive legislative policies as unconstitutional
140. See James M. Balkin, Some Realism about Pluralism, 1990 Duke L.J. 375, 384.
141. Fredrick Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L. Rev. 935, 942 (1993).