Authority and Intent in U.S. Constitutional Culture

Abstract

On the last page of Proportionality and Constitutional Culture, Moshe Cohen-Eliya and Iddo Porat invite their readers to weigh the advantages and disadvantages of adopting proportionality, and they express the hope that their book will have provided a starting-point for such work.1 In the following two sections of this article, I will take up this invitation by assessing the moral appeal of what Cohen-Eliya and Porat identify as proportionality’s rival, namely the U.S. model, and more specifically, the intent-based conception of rights and the culture of authority which, according to Cohen-Eliya and Porat, lie at its heart. My argument will be that both the intent-based conception of rights and the idea of a culture of authority are morally deficient and that if one fixes their problems, one will end up with the proportionality-based model (which I will refer to as the ‘global model’). In the final section, I will argue that this result throws doubts upon Cohen-Eliya’s and Porat’s claim that the intent-based conception and the culture of authority are at the heart of U.S. constitutional culture. I will claim that the lack of moral appeal of their account provides a prima facie reason against its validity as a culturally reconstructive theory, and I tentatively suggest that the global model should be considered as a candidate explaining U.S. constitutional culture as well.