Three Essays on Proportionality Doctrine

Mark Tushnet 

Harvard Law School

August 4, 2016

Abstract:      

The following three essays deal with diverse aspects of the doctrine of proportionality. The first argues that rationality review in U.S. constitutional law, which deals with challenges to legislation on the ground that the legislation violates a general right to liberty rather than any specific enumerated right, could be improved by expressly incorporating several features of proportionality doctrine. The second addresses the often made claim that proportionality analysis leads to “rights inflation,” and offers a doctrinal account and a politico-cultural account of that phenomenon. The third, to appear in a collection co-edited by Vicki C. Jackson and Mark Tushnet, tentatively titled New Frontiers in Proportionality Analysis (Cambridge University Press, 2017), argues that some cases treated as “easy’ under proportionality doctrine, are actually more difficult, and that recognizing their difficulty supports, to some degree, the adoption of the kind of categorical analysis that proportionality doctrine is thought to reject.

Keywords: Comparative constitutional law, proportionality, rationality review

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