This chapter examines certain ways that proportionality—either as a structured doctrine or as a concept or principle—may affect constitutional adjudication, based on an examination of Australian, Canadian, South African, and US constitutional cases. It explores differences between proportionality as a doctrine and proportionality as a principle and looks at whether proportionality as an approach is experienced by judges as a choice or a necessity. It also explores a potentially significant analytical difference that exists between the principle of proportionality and the doctrine of proportionality review, raising the possibility that the minimal impairment (or “necessity”) inquiry, if always read as a stringent, less restrictive means test, may be at odds with the more general principle of proportionality as applied to democratic self-governing decisions and, if so, asking whether this circumstance should affect application of the doctrine or, rather, should affect the nature of the remedy required.
Vicki C. Jackson
U.S. constitutional law concerning the relationship between executive and legislative power is surprisingly thin. There is little case law directly designed to preserve the authority of Congress as the pre-eminent place of democratic self-governance; there is almost no consistent case law constraining the processes of legislation or requiring its generality. There is only somewhat more case law constraining the executive power vis-à-vis Congress. With respect to Congress’s relation to the courts, there is some case law, but of quite limited scope, that prevents Congress from overstepping into the judicial arena. There is, however, much constitutional law concerning the appointment and removal of government officers, and many cases elaborating the presumption of judicial review. The absence of case law on delegation of powers, or requiring legislative generality, or defining areas where enacted legislation is required for lawful government action, or constraining independent presidential action, may seem inconsistent with basic premises of the separation of legislative and executive power. But intense political party competition at the national level produces a degree of self-checking capacity. Moreover, the constitutionally protected presence of various organized economic and social interests may also serve as a check on undue institutional aggrandizement. Yet these doctrinal silences may matter, especially to the extent that they contribute to democratic malfunctions, such as the acceptance of gridlock, brinksmanship and executive law-making on major issues as normal. Epistemic uncertainty, however, abounds, in trying to determine whether changes in separation of powers doctrines will improve or worsen these problems. Understanding the actual functioning of the political system cannot be accomplished through the disciplinary tools of law alone. Formalist approaches reasoning from purportedly clear meanings of text are often justly criticized for ignoring broader questions of purposes and context. Yet critiques of formalism, and arguments for more flexible approaches based on concern for an overall balance of legislative and executive powers, may assume that the effects of differing allocations of powers on well-functioning democracies can be known, an assumption that may be more heroic than correct. Judicial modesty and interpretive rather than constitutional approaches may therefore be appropriate presumptive starting points.
Vicki C. Jackson
How do commitments to gender equality intersect with approaches to constitutional interpretation? An important element of feminist approaches to law is an emphasis on understanding contexts. When one considers the wide range of contexts in which questions of constitutional interpretation arise, it follows that there is no single answer to what ‘feminist interpretation’ would be. The answer depends on the context, including the particular constitution at issue. Section 8.2 of this chapter argues that there are at least four general principles, which most feminists can share, that should inform the choice of interpretive theory. Section 8.3 evaluates several major approaches to constitutional interpretation. Finally, Section 8.4 suggests that multi-valenced practice-based forms of interpretation, which include a focus on relationships (among people and institutions), will often be a way of pulling together strands of interpretive approaches that enable advancement of gender equality in the context of the broader demands of interpretation in constitutional democracies.