19 - Alternatives to proportionality

Summary

Proportionality is a legal tool designed to resolve conflicts between constitutional rights, or conflicts between constitutional rights and the public interest. It is not the only tool designed to provide such solutions. Other legal tools also seek to provide solutions to these conflicts. This chapter will review some of these alternatives, particularly the alternative referred to as “categorization,” which is frequently used by American courts. Before categorization is reviewed, however, several other alternatives are presented.

The nature of the alternative

Webber proposed an alternative to proportionality. According to his approach, the scope of constitutional rights is determined as per their interpretation. This scope is supplemented by limitations constructed by the legislator. Those limitations are a part of the constitutional right. They do not limit it. Rather, they determine its content in accordance with the community’s views at a given time. These views are expressed through legislation, which expresses the people’s will. The legislator operates in accordance with the limitation clause. According to this clause, the legislator must demonstrate the justification for the right as it exists in a free and democratic society. The legislator, in other words, is the one to determine the boundaries of the right. Once these boundaries are set (in accordance with the right’s proper interpretation and the limitations set by legislation), the right becomes absolute. Thus, neither proportionality nor the balancing at its core has a place. Indeed, the legislator is not bound by proportionality. Accordingly, the role of the judicial branch is to examine whether or not the use of legislative discretion was arbitrary.