Method and Culture in American Constitutional Law: A Critique of Proportionality and Constitutional Culture

Abstract

This is a review of Moshe Cohen-Eliya’s and Iddo Porat’s book, “Proportionality and Constitutional Culture”. The authors’ project is to explain proportionality’s origins, especially as embedded in political culture and jurisprudential development. They aim to understand why proportionality has successfully spread from Germany to the rest of Europe, Canada, South Africa, India, Israel, and international legal instruments, but has not caught on in American constitutional law, which employs balancing as a mode of constitutional analysis. The authors argue that proportionality and balancing are paradigmatic of two distinct legal cultures. Proportionality is best understood as the centerpiece of a “culture of justification,” that is a demand that government offer justifications for its actions. Balancing, however, is a doctrine whose role is relatively marginal in the United States, part of a legal culture that the authors define as a “culture of authority,” that is a focus on whether the state acted within the scope of its legal authority without examining the substantive merits of the action. These cultural differences also explain American skepticism about human rationality and its preference for markets, the common law, popular democracy, and suspicion of government generally, which, in turn, generate a preference for markets over regulation, separation of powers over unified government, and federalism and decentralization over centralized control. The Book’s argument is compelling as it is elegant. But elegance has its price. As it reveals, it also obscures. By distilling centuries of cultural evolution to a single distinction (authority/justification), the authors necessarily downplay past and present contestations in American constitutional law. Contrary to the authors’ claims, American constitutional law has, at different points in time, embraced and rejected balancing and proportionality; it has embraced and rejected a culture of authority; it has embraced and rejected a culture of justification; it has embraced and rejected regulation, centralization and decentralization. Although the Book highlights important features in American constitutional law, linking them to the development of balancing, doubts remain whether its thesis delivers the explanatory punch it promises. After laying out the contested terrain of American constitutional law, I offer two reasons why proportionality has not been embraced in the U.S. First, proportionality was incorporated into post World War Two legal thinking at a time when the U.S. was already locked into a different constitutional trajectory. Second, given the similarities between proportionality and balancing, there are few incentives, and serious legitimacy costs, for importing proportionality as a central doctrine of American constitutional law.