Proportionality and the Relevance of Rights
Jud Mathews, I•CON Debate Review: Proportionality and the Relevance of Rights, Int’l J. Const. L. Blog, Feb. 6, 2015
4 Pages Posted: 8 Feb 2015
Date Written: February 6, 2015
It is now well known that proportionality-based balancing has become the dominant approach to the judicial review of legislation that limits constitutional rights. But has proportionality outgrown rights? In other words, are specific constitutional rights — as opposed to, say, a general right to proportional treatment — necessary, or desirable, once courts have adopted proportionality analysis? This issue animates the debate between Professors Luc Tremblay and Matthias Klatt in the International Journal of Constitutional Law. In this comment, I weigh in on the Tremblay/Klatt debate, and make a case for the continued relevance of rights in proportionality balancing.
Keywords: constitutional rights, judicial review, proportionality, balancing analysis
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