Edited by Erin F. Delaney and Rosalind Dixon
Chapter 18: Pockets of proportionality: choice and necessity, doctrine and principle
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.
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