This chapter describes the connection between state constitutions and the essential aims of regulatory governance in the American states, providing an overview of state constitutionalism and of the elements of state constitutional history as it relates to governmental structure and purpose. The basic theme of the chapter is that to understand the police power requires a fundamental understanding of the objectives of state constitutionalism. At a high level, state constitutions look to distribute effectively political power and balance democracy with the protection of individual rights. Even as fundamentally political documents, they are designed to succeed (although they occasionally fail). Likewise, the powers assigned to institutions of government are intended to facilitate constitutional success.

This chapter examines the origins of the police power in the American constitutional system. In the beginning, the framers of the early state constitutions were engaged in two struggles: how to create effective frameworks of government, and how to define the relationship between national and state government. The police power was one the key reserved powers the states possessed viz. the Tenth Amendment. This chapter illuminates how the state police power emerged and developed in the nineteenth century and, in particular, how it evolved from a notion of sic utere (righting specific wrongs) to salus populi (promoting the public good). It ends at the end of Reconstruction, with key cases illuminating the scope of state regulatory discretion under the police power.

This chapter lays out the perplexing neglect of the police power in contemporary discussions of constitutional governance and public law. It explains some of the reasons for this neglect, and turns to a set of reasons why a richer understanding of modern constitutional governance requires more scrupulous attention to the police power as a tool of regulatory policymaking.

This chapter argues that, first, the adoption, application, and adaptation of proportionality in Taiwan mirror the nation’s political development from an authoritarian regime to a stable democracy. Second, the TCC has developed its own variant of Proportionality Analysis by concurrently using the tiered-standard of review, applied by the United States Supreme Court, in equal protection cases. In the words of a sitting TCC Justice, proportionality in Taiwan is like a restaurant with a German menu that also serves American dishes. Third, the application of proportionality in Taiwan, particularly the four subtests, is similar to that applied in many other jurisdictions: While the Taiwan Constitutional Court occasionally strikes down legislation for failing the legitimacy, suitability, or balancing sub-tests, most laws are invalidated for failing the necessity subtest. In practice, the Constitutional Court invokes proportionality mostly in the domain of civil and political rights, which is similar to many other apex courts in the world, and it has less frequently used PA to rule against the government in cases concerning socioeconomic rights.

This Chapter questions whether there is a “doctrine” of proportionality. By “doctrine,” a way of dealing with problems across a range of problems. Using the country studies presented in this book, the chapter identifies a number of reasons for thinking that there is – and perhaps cannot be – such a doctrine. First, the components of proportionality are elements in any reasoned explanation for an outcome in a constitutional case; as a result, “hints” of proportionality analysis in cases not using its structured version may not in fact illustrate proportionality analysis at all. Second, courts allocate different analytic methods to different domains; as a result, proportionality analysis and categorical analysis co-exist in the system as a whole. Third, something like a categorical analysis is likely to appear at the “less restrictive alternatives” stage of proportionality analysis. Finally, even systems committed to proportionality analysis might find themselves eventually adopting some categorical rules as a means of achieving better results overall than proportionality would produce directly. The Chapter concludes with some observations about the role that structural, educational, and political contexts play in the choice between categorical and proportionality analysis.

Philippine courts do not use a multi-step proportionality test in their constitutional rights analyses. Instead, they use a combination of balancing and tiers-of-rights analyses. We offer two reasons why Philippine courts do not use the proportionality test. First, Philippine courts regard US constitutional law as more persuasive authority than other foreign jurisprudence, and the proportionality test is also absent from the U.S. Reports. Second, Philippine constitutionalism is originalist, and proportionality is not part of the original meaning of the Philippine Constitution. The Philippine Data Privacy Act of 2012 can be interpreted as the legislative empowerment of courts to use the proportionality test for the adjudication of data privacy rights. We argue that Philippine Congress has the power to mandate the use of the test with respect to constitutional rights that are subject to Legislative Delimitation Provisos, which give Congress the power to determine, by statute, the limits or boundaries of certain constitutional rights, including the right to informational privacy. We propose a two-step process in adjudicating informational privacy cases which would retain the judicial use of legal categories while concurrently introducing proportionality stricto sensu. This will offer a structured, transparent approach to the constitutional adjudication of data privacy rights.