AMBIVALENT RESISTANCE AND COMPARATIVE CONSTITUTIONALISM:
OPENING UP THE
CONVERSATION ON "PROPORTIONALITY," RIGHTS AND FEDERALISM
Vicki C. Jackson
- Ambivalent
Resistance
- Ambivalent
Resistance: Why and Why Not
- Why
such ambivalence?
- Why
we should abandon ambivalence as to the study of comparative constitutional
materials
- Proportionality
and Comparative Constitutional Law
- Canada's
Constitution and the Oakes Test: Proportionality as a Principle In
Protecting Individual Rights
- Hate
Speech Cases: Keegstra and RAV.
- Transplanting
Proportionality?
- City
of Boerne v. Flores: Proportionality and Federalism
- Flores,
Comparative Sources and The Constitutional Conversation
Ambivalent Resistance and Comparative
Constitutionalism:
Opening Up the Conversation on "Proportionality," Rights
and Federalism
Vicki C. Jackson*
This article concerns what I will call the ambivalent resistance of U.S.
constitutional law to explicit learning and borrowing from other nations'
constitutional decisions and traditions. It begins in Part I by identifying this
resistance and explaining in what respects it is ambivalent, and goes on in Part
II to suggest reasons for the resistance and for why it may diminish in the
future. To explore the attractions and dilemmas of comparative constitutional
law, Part III examines how a particular doctrine found in Canadian
constitutional law, the so-called "proportionality" test of R. v.
Oakes,[1] might bear on recent constitutional issues of federalism and
individual rights in the United States. This section argues for the value of
studying foreign constitutional law, while at the same time urging caution about
the possibility of direct "transplants." Finally, the article explores the
relationship between the U.S. Supreme Court's resistance to considering foreign
constitutional law and its resistance to input from other domestic institutions,
notably Congress, on the meaning of the U.S. Constitution. It argues for a
broader understanding of what is relevant to U.S. constitutional interpretation,
embracing both congressional judgments and judgments reached by the
constitutional courts of other nations considering similar problems.
Members of the current U.S. Supreme Court have on more than one occasion
rejected the utility of considering constitutional practice in other countries.
In 1997, Justice Scalia, writing for the Court in Printz v. United
States,[2] explained why, in his view, "comparative analysis
[is] inappropriate to the task of interpreting a constitution, though it was of
course quite relevant to the task of writing one."[3] Justice Scalia also made a narrower argument, that "our
federalism is not Europe's," [4] suggesting that European practice in federal
systems was not relevant to the question before the Court - whether Congress had
the power to compel local government officials to perform background checks
under a federal gun law.
Justice Scalia was writing in response to an argument made in dissent by
Justice Breyer. Writing for himself and for Justice Stevens, Justice Breyer
argued that the experiences of the federal systems of Switzerland, Germany and
the European Union indicate that a system in which local governments carry out
directives of the central government may "interfere[] less, not more, with the
independent authority of the . . . subsidiary
government . . . ."[5] Breyer suggested that this comparative experience shows that
"there is no need to interpret the Constitution as containing an absolute
principle forbidding the assignment of virtually any federal duty to a state
official" in order to reconcile "central authority with the need to preserve the
liberty-enhancing autonomy of smaller constituent governmental entit[ies]."[6] (Justices Breyer, Stevens, Souter and Ginsberg would have
upheld the relatively small burden imposed on local sheriffs to implement the
background checks.)[7]
Resistance and ambivalence: Justice Breyer argued for the relevance of
comparative experience in resolving an open question of constitutional
interpretation, one to be informed by understanding the empirical consequences
of different interpretations.[8] Justice Scalia, in contrast, acknowledged the
contributions of comparative study to the formation of the Constitution but
resisted its appropriateness to the task of interpretation.[9] But did he resist comparative study in Printz
because it can never be appropriate? Or, did he resist such study because
the issues of federal structure somehow were unique to the United States? And
does Justice Scalia really speak for even the five-justice majority of the
Printz Court?[10]
Chief Justice Rehnquist, who joined Scalia's opinion in Printz, has
taken a more receptive view of the benefits of comparative constitutional law to
courts in the United States, both in his opinions [11] and in his other writings. In a speech given in 1989 at a
symposium in connection with the 40th anniversary of the German Basic Law, Chief
Justice Rehnquist stated:
For nearly a century and a half, courts in the United States exercising the
power of judicial review had no precedents to look to save their own, because
our courts alone exercised this sort of authority. When many new constitutional
courts were created after the Second World War, these courts naturally looked to
decisions of the Supreme Court of the United States, among other sources, for
developing their own law. But now that constitutional law is solidly grounded in
so many countries, it is time that the United States courts begin looking to the
decisions of other constitutional courts to aid in their own deliberative
process. The United States courts, and legal scholarship in our country
generally, have been somewhat laggard in relying on comparative law and
decisions of other countries. But I predict that with so many thriving
constitutional courts in the world today . . . that approach will
be changed in the near future. [12]
But the same year as Rehnquist's 1989 speech, Justice Scalia, writing for the
Court, rejected the relevance of the practice in other nations, while the
dissent argued to the contrary, in Stanford v. Kentucky,[13] a case addressing the constitutionality of the death penalty
for juveniles convicted of murder. No question of government structure was
presented, to which the claim of a uniquely American federalism might apply;
rather, the question was one of pure individual right. In Stanford, the
Court rejected a claim that the imposition of capital punishment for crimes
committed when the defendant was age 16 or 17 was cruel and unusual punishment
under the Eighth Amendment. In the first footnote in the opinion, the Court
wrote:
We emphasize that it is American conceptions of decency that are
dispositive, rejecting the contentions of petitioners and their various
amici . . . that the sentencing practices of other
countries are relevant. While "[t]he practices of other nations, particularly
other democracies, can be relevant to determining whether a practice uniform
among our people is not merely an historical accident, but rather `so implicit
in the concept of ordered liberty' that it occupies a place not merely in our
mores, but, text permitting, in our Constitution as well," Thompson v.
Oklahoma, 487 U.S. 815, 868-869 n.4 (1988) (Scalia, J.,
dissenting) . . . they cannot serve to establish the first Eighth
Amendment prerequisite that the practice is accepted among our people.[14]
Other voices on the Court, however, argued that foreign constitutional
practices were relevant. In his Stanford dissent, Justice Brennan, joined
by Justices Marshall, Blackmun and Stevens, wrote that "choices of governments
elsewhere in the world also merit our attention as indicators whether a
punishment is acceptable in a civilized society."[15] He went on to note specifically that over fifty
countries, including nearly all of Western Europe, had formally abolished the
death penalty, twenty-seven other countries did not in practice impose the death
penalty, and of those countries that retained it, a majority did not permit the
execution of juveniles.[16] Justice Brennan and the other dissenters believed that the
legal practice of other countries was relevant, though not dispositive, on the
constitutional question of "cruel and unusual punishment."[17]
As cases cited by both Justice Scalia and Justice Brennan illustrate, at
least for purposes of Eighth Amendment doctrine, standards of punishment in
other countries have on occasion been viewed as relevant to the constitutional
question whether a particular punishment is "cruel and unusual."[18] Earlier, in Trop v. Dulles,[19] the plurality opinion of the Chief Justice relied on the
practice of other nations to conclude that loss of citizenship for desertion was
unconstitutional, noting that "banishment [is] a fate universally decried by
civilized people." [20] The Court noted further that the "international
community of democracies" deplores statelessness and that a United Nations
survey "reveal[ed] only two countries . . . [that] impose
denationalization as a penalty for desertion."[21]
Opposing stances towards the relevance of practice and experience in other
countries in resolving constitutional questions occur even earlier in our
constitutional history as well. In Fong Yue Ting v. United States,[22] for example, the Court upheld a statute authorizing the
deportation of Chinese laborers who did not possess a required residency
certificate unless, on the testimony of at least one "white witness," they met
the conditions to excuse them from the certificate requirement. In so ruling,
the majority began by noting the universal practice of sovereigns to retain the
right to expel aliens, a right it found unconstrained by the Constitution.[23] While the majority invoked foreign practices, it was the
dissenting justices who invoked American exceptionalism. According to Justice
Brewer:
The governments of other nations have elastic powers - ours is fixed and
bounded by a written constitution. The expulsion of a race may be within the
inherent powers of a despotism. History, before the adoption of this
Constitution, was not destitute of examples of the exercise of such a power; and
its framers were familiar with history, and wisely, as it seems to me, they gave
to this government no general power to banish.[24]
Justice Field also dissented. After disagreeing that English practice had
been correctly described, he wrote:
[E]ven if that power [of deportation of resident aliens] were exercised by
every government of Europe, it would have no bearing in these
cases. . . . Spain expelled the Moors; England, in the reign of
Edward I, banished fifteen thousand Jews; and Louis XIV, in 1685, by revoking
the Edict of Nantes, which gave religious liberty to Protestants in France,
drove out the Huguenots . . . . Within [the last] three
years Russia has banished many thousands of Jews, and apparently intends the
expulsion of the whole race - an act of barbarity which has aroused the
indignation of all Christendom. . . . [A]ll the instances
mentioned have been condemned for their barbarity and cruelty, and no power to
perpetrate such barbarity is to be implied from the nature of our government,
and certainly is not found in any delegated powers under the Constitution. The
government of the United States is one of limited and delegated powers. It
takes nothing from the usages or the former action of European governments, nor
does it take any power by any supposed inherent sovereignty.[25]
Perhaps just as noteworthy as the cases in which justices of the U.S. Supreme
Court discuss the relevance of foreign constitutional practice or reasoning are
the cases in which they do not, but easily could have. For example, in 1992 the
Court held, in R.A.V. v. St. Paul,[26] that a local ordinance prescribing "fighting words" based on
racial bias violated the First Amendment because it amounted to a content-based
regulation. Neither the majority nor the dissent in this closely-divided case
alluded to how other constitutional governments have addressed this problem,
notwithstanding Justice Scalia's acknowledgment in the opinion for the Court
that "[f]rom 1791 to the present . . . our society, like other
free but civilized societies, has permitted restrictions upon the content of
speech in a few limited areas . . . ."[27] Readily available were the opinions of the Canadian Supreme
Court in R. v. Keegstra,[28] in which that Court addressed at length its reasons for
upholding the constitutionality of a statute prohibiting the "wilful promotion
of hatred, other than in private conversation, towards any section of the public
distinguished by colour, race, religion or ethnic origin."[29] While the several lengthy opinions in the
Keegstra case extensively discussed U.S. First Amendment cases,[30] the U.S. Supreme Court two years later was silent on this
potentially valuable comparative resource.[31]
As these examples illustrate, the U.S. Supreme Court is resistant to
considering foreign constitutional law, even in areas where there are materials
close at hand that address similar problems within the context of a western,
liberal democratic republic (and that discuss the U.S. Court's prior
precedents). But the resistance is often seen in silence. And it is ambivalent -
sometimes silently, sometimes expressly.
In what respects is U.S. constitutional law ambivalent about borrowing from
or considering foreign constitutional decisions? First, it is evident that the
different justices are receptive in differing degrees to the possible bearing of
comparative constitutional law, with several current members of the Court open
at least to thinking about foreign decisions. [32] Justice Scalia's rejection of the relevance of foreign
constitutional practices in Printz may be an outlier, notwithstanding its
appearance in his opinion for the Printz Court.[33] Further, his view is that comparative experience
is relevant to making a constitution but not to interpreting
one.[34] On this view, to the extent that the process of
interpretation resembles the making of a constitution, comparative experience
could still be relevant.[35] Finally, the view that comparative experience is irrelevant
(or less relevant) on structural issues such as federalism, even if accepted, [36] would not necessarily rule out its relevance on issues of
individual right.[37]
Moreover, courts can use comparative experience for different reasons and in
different ways. A constitution might be read to require consideration of
foreign practice or decisions, for example, as evidence of a practice that bears
on a criterion like "usualness" in the Eighth Amendment arena.[38] Alternatively, constitutional adjudication might be informed
by knowledge of what institutional experiences under different regimes suggest,
negatively or positively, about how the U.S. regime ought to be construed in
order to work at a structural level.[39] Further, constitutional adjudication might
consider the weight or force of the reasoning of constitutional courts or
jurists elsewhere, as Justice Rehnquist's 1989 comments seem to suggest.[40] It is the latter point in particular that I think meets the
most resistance in the U.S. cases.
In this section, I describe some possible reasons for the Court's
ambivalence, including the shape and demands of legal education. I go on to
argue that U.S. law schools, lawyers and jurists must abandon their ambivalence
about learning from comparative constitutional law, even if they conclude that
"borrowings" are not helpful. Comparison, I suggest, has become almost
inevitable in the increasingly globalized world of law and information, and only
deliberate study can yield the knowledge on which to base informed analysis of
the implicit comparisons that are entailed in assertions about the uniqueness of
the U.S. Constitution.
First, the broader history and culture of "American exceptionalism," with
its twin manifestations of idealism and naivete, of expansionism and
isolationism, may affect those who serve on the Supreme Court and in the federal
courts no less than those in other government service.[41] The belief that the U.S. experience is unique can be
deployed to serve both "liberal" and "conservative" views of constitutional
issues, as a comparison of Justice Scalia's stance in Printz v. United States
with that of the dissenting justices in Fong Yue Ting v. United
States suggests.[42]
Second, for some period of time until fairly recently, many U.S. law school
curriculums have had a decidedly parochial emphasis. [43] Even today, few if any require study of
international or comparative law, and while rates of enrollment in such courses
appear to be on the rise, they remain at some law schools a marginalized area of
study.[44]
In his speech discussed earlier, Chief Justice Rehnquist suggested that until
after World War II, the only materials available to consult in judicial
constitutional decision-making were domestic;[45] thus in the area of constitutional law, there were no other
games in town. Perhaps it is more accurate to say, however, that of
foreign decisions that might have been viewed as constitutional, few were seen
as relevant to topics addressed by U.S. courts. [46] Indeed what judges viewed as available and
relevant may itself reflect "exceptionalist" understandings of the U.S.
Constitution.
Since World War II, a number of constitutional courts, perhaps most
prominently the German Federal Constitutional Court, have developed important
bodies of jurisprudence addressing constitutional issues similar to those
presented in the United States; of these, only a small number are routinely
available in English. Furthermore, in those countries that have developed
constitutions and constitutional court decisions, the constitutions themselves
are typically the product of the latter part of the century. These constitutions
are often longer than, and include provisions different from those of U. S.
Constitution. Understanding the constitutional context of foreign
decision-making is a daunting task, made no less so by the length and, in some
respects, unfamiliarity of the basic constitutional texts. Finally, important
differences exist between the U.S. constitutional system and those of other
leading producers of English-accessible opinions (for example, the rules against
"abstract" review under the "case or controversy" regime), as well as in the
style and accessibility of opinions written in other constitutional systems.[47]
Some of the reasons for resistance to comparative constitutional learning,
however, are in the process of changing. Interest in international and
comparative courses is on the rise, as law practice becomes more globalized.
Availability of foreign decisions is increasing. Likewise, the rate of U.S.
research in and publication on issues of comparative constitutionalism is
increasing, as this symposium illustrates.[48] And U.S. judges are participating in a variety of
international organizations and educational programs which promote exposure to
other constitutional systems.[49]
Yet, accessibility and interest alone do not fully explain the ambivalence
about looking to other constitutional systems for illumination of shared
constitutional problems. Other divides, and reasons for caution in borrowing
constitutional ideas from one system to another, are likely to remain. The
differences between the U.S. Constitution and the constitutions of other western
democracies are substantial, not only in the organization of the court systems
that resolve constitutional questions, but also in the relatively unusual nature
of the U.S. "presidential" system of allocating executive and legislative power.
The interplay between these allocations of power and the system of federalism in
the United States makes analogies to any of the other major constitutional
systems complex and difficult. And differences in history, culture, population
composition and distribution, political parties and voting systems, further and
substantially complicate the process even of understanding the operation of
other constitutional systems, let alone "borrowing" from them.
One difficulty in using comparative constitutional study to identify areas
for potential "borrowing" is in determining when foreign constitutional law
reflects alternative ways of understanding familiar concepts and problems, such
as due process of law, or enumerated and limited powers, that give rise to
interpretive questions. Comparative study can yield insights into the sense of
"false necessity" internal to one legal system. As Justice Breyer argued in
Printz v. United States,[50] given that some countries find it important to safeguard the
right of sub-national units to administer national law, it is hard to conclude
that, in order to have a successful and continuing federal division of powers, a
national government must be prohibited from requiring sub-national units to do
so. At these moments of possible insight, however, one is faced with the harder
problem of distinguishing false necessities for a given constitutional
system from aspects of the system that may be true necessities in light
of the (some would say inevitable) interdependencies of the parts of the
whole.[51] For example, had Justice Scalia responded on the
merits to Justice Breyer's reference to the structure of other federal systems,
he might have argued that other differences between German and U.S. federalisms
preclude reliance on Germany's emphasis on the l鋘der administration of federal
law in determining what the U.S. rule should be. The symbolic meaning of
sub-national administration of federal law in Germany differs substantially from
that in the United States. [52] So, too, do the mechanisms for l鋘der influence in the
national legislative process: members of the l鋘der governments sit in the
Bundesrat to exercise constitutionally-secured and judicially-enforceable
political powers over legislation that the l鋘der will then have to administer;
[53] this power differs substantially from the less direct
influences state governments have upon the U.S. Congress and may be a structural
protection against undue burdens of administration in Germany that is lacking in
the U.S constitutional system. [54]
A final obstacle to constitutional borrowing may be worth noting, one that is
reflected in the self-consciously normative mode of analysis found in many
Canadian and German decisions. Perhaps because they are far more recently
adopted, decisions about these constitutions are often less concerned with
original intentions than some of the current decisions of the U.S. Supreme
Court.[55] German constitutional court decisions often begin their
reasoning with a basic, fundamental norm, not particularly tied to a specific
constitutional text, and proceed in their reasoning from the abstract principle
to the decision at hand.[56] U.S. constitutional decisions are more likely to begin with
a precedent, or a statement of facts.[57]
We in the United States are in a long-continuing period of unease over the
Court's authority as an institution to assert bold principles or normative
values. Those constitutional courts that speak and interpret on behalf of
younger constitutional orders, however, may feel themselves to be speaking to a
different generation of constitutional problems than the U.S. Court faces. For
one thing, the judicial review functions of newer constitutional courts are
often expressly provided for in their constitutional documents. The interpretive
difficulties for a court faced with an old and seldom-amended document differ
from those of constitutional courts populated by persons for whom the drafting
of the basic law is within their personal memories, or those of their immediate
teachers. [58] In societies with newer constitutions, there may be broader
areas of consensus, born of knowledge of the process of constitution-making,
that function to constrain, or to legitimize decisions in ways not available to
the U.S. Court. Nonetheless, as the Canadian experience demonstrates, issues of
the legitimacy and the scope of judicial activism and of deference to
legislative judgments can emerge early even in new constitutional systems. [59] These controversies illuminate, if nothing else,
the tensions between democratic self-government, on the one hand, and
judicially-enforced adherence to constitutional norms, on the other, that have
concerned U.S. constitutionalists.[60]
Having said all this, let me suggest one reason, among many others,[61] that we should not be ambivalent about learning more about
constitutional decisions and practices outside the United States - whatever use
we may or may not make of this knowledge.[62]
Comparison is inevitable. We cannot help but draw on comparisons with other
systems in understanding and giving meaning to our own. At least in the late
twentieth century, news and communication media, as well as professional
journals, bombard those who hold power or authority in the United States legal
community with information about what is happening not only in the United
States, but in many countries around the world and in international legal
regimes. When Justice Scalia asserts that U.S. federalism is uniquely American,
he is making an implicit comparison to other systems and asserting that there is
no other system like that of the United States. When the majority in Fong Yue
Ting v. United States invoked the universal practice of sovereigns, as well
as when the dissenters invoked the irrelevance of foreign practice to U.S.
constitutional law, each was making an implicit comparison.[63] We cannot wholly prevent ourselves from being influenced by
what we think we know about other countries - in thinking about how rigorous are
the standards for impeachment, whether racial distinctions by the government are
ever permitted, or whether hate speech should be criminally punished or
judicially protected[64] - what we think we know about the world forms part of the
lattice work of assumptions and beliefs that constitute, "our traditions,"
"common sense," or "contemporary understandings". [65]
My point in referring to "what we think we know" is that we implicitly think
we know many things about what is "necessary" to make the U.S. Constitution work
the way we think it "should" or "was supposed to" and some of the
assumptions on which this knowledge rests have to do with what we are and are
not supposed to be. A basic and still valuable lesson from Freud is that
becoming aware of our own experiences, assumptions and beliefs - making what is
obscure visible and what is latent manifest - enables us to use our rational,
analytical skills to make better sense out of what we should do in the future.[66] Whether or not we conclude on reasoned reflection
that practices elsewhere suggest answers for U.S. constitutional questions, we
are more likely to be able to monitor and control how much our assumptions about
foreign views and practices influence our thinking if we become aware of those
assumptions - and this is a benefit of actually studying comparative
constitutional law.
In sum, comparison is inevitable. In formulating answers to U.S.
constitutional questions, an implicit part of our arguing about and deciding
these questions has to do with assumptions of what U.S. constitutionalism is
about and what it requires; and this analysis involves an implicit comparison
with other forms of constitutionalism. If comparison is (or is becoming)
inevitable, then comparison should be conscious, knowing, well-informed, and
reasoned.[67]
A brief look at the concept of "proportionality" in constitutional
law, both outside the United States and in recent U.S. Supreme Court opinions,
will illuminate some of the benefits (and limitations) of comparative
constitutional learning. Since 1994, the U.S. Supreme Court has articulated a
"proportionality" test in two different constitutional fields.[68] Most recently, in Flores, the Court invoked
proportionality to measure the constitutionality of exercises of Congress's
Section 5 powers under the Fourteenth Amendment.[69] Specifically, the Court there held that Congress's use of
its remedial powers under Section 5 must be proportional to or congruent with
the constitutional harm sought to be remedied, and held that a recently-enacted
federal statute was unconstitutional because it failed the test of
proportionality. While no reference is made to support the Court's invocation of
considerations of proportionality, no Justice explicitly dissented from the
majority's use of the concept.[70] Yet, the most immediate scholarly responses to the
Flores proportionality test were negative, treating Flores'
invocation of "proportionality" as a novel, indeterminate and unwise
innovation. [71] This response, from a perspective internal to U.S.
constitutional decisions, is perhaps not surprising.[72] U.S. constitutional law does not ordinarily and explicitly
resort to the idea of proportionality as a measure of constitutionality - even
in the Eighth Amendment area,[73] where the constitutional text seems to call for application
of the idea of proportionality, [74] an idea that was developed in early legal writings about
criminal punishments. [75] Professor Stuntz has recently suggested that the failure to
develop proportionality analysis in constitutional review of criminal law issues
is due to the fact that such review involves decisions of inherently political,
rather than legal issues:
There is no nonarbitrary way to arrive at the proper legal rules, no way to
get to sensible bottom lines by something that looks and feels like legal
analysis. Whether proportionality review [of criminal sentences] is lodged in
appellate or trial courts, the only way to do it is to do it, to decide that
this sentence is too great but not that one. There is no metric for determining
right answers, no set of analytical tools that defines what a given sentence
ought to be . . . . Similarly, [with respect to the
definition of substantive crimes] heightened mens rea requirements for overbroad
crimes beg the question of which crimes are overbroad. Special culpability rules
for, say, mail fraud would inevitably rest on a judicial judgment that mail
fraud is badly defined, that Congress criminalized more than it should have.[76]
Thus, Professor Stuntz suggests, review for proportionality would "amount[]
not just to open-ended judicial regulation . . . but also to
arbitrary judicial regulation, regulation that produces outcomes
untethered to any definable legal principle."[77]
What is striking here is the degree to which, in the United States,
proportionality itself is not seen as a "definable legal principle." [78] Yet, in Canada, whose court decisions are readily available
in English,[79] proportionality is a basic tool for analyzing the
constitutionality of measures claimed to violate individual rights.[80] Likewise, proportionality is a widespread concept in
European law.[81] The idea of proportionality is one that inheres in many
conceptions of justice and just lawmaking,[82] and is embodied in some of the articulated "means-ends"
tests deployed in U.S. constitutional law.[83]
Proportionality tests offer both advantages and risks that can be analyzed,
in part, on the basis of comparative experience, which has largely been in the
arena of individual rights. In Section A below, I briefly describe Canada's
development of the concept of proportionality in its constitutional law and
compare a Canadian and a U.S. case on "hate speech" to illuminate salient
differences between the Canadian "proportionality" test and the more categorical
form of constitutional analysis employed here. Although there is much that is
attractive about the Canadian analyses, thoughtful reflection suggests that the
prospect of a successful "transplant" of the Canadian approach to the United
States is uncertain at best.
Section B then sets forth in more detail Flores' use of
proportionality, and suggests that proportionality as a tool for resolving
federalism-based challenges to federal power should be understood somewhat
differently than "proportionality" analysis where individual constitutional
rights are at stake. In the federalism arena, "proportionality" tests may have
the more limited role of being a surrogate for identifying the validity of
congressional purpose and containing an otherwise uncontainable federal power to
obliterate state governments' abilities to function as independent sources of
power. Comparative experience also suggest, however, that in the United States
such federalism-based forms of review of national action should be conducted
only with a high degree of deference to legislative findings and power. Whether
readers agree with this conclusion or not, I hope also to show that the U.S.
Supreme Court's constitutional decisions, and analyses of them, would be
improved if judges, lawyers and scholars were more widely aware of the tools and
techniques of other constitutional courts.
Canada adopted a rights-protecting constitution in 1982, The Canadian
Charter of Rights and Freedoms.[84] The Charter begins with a section that is both
declaratory and limiting of the enforceability of its subsequent provisions:
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society." [85] The Canadian Supreme Court has construed this
provision to mean that even if a law is found to violate some particular
right set forth in the Charter, the law can nonetheless be upheld if it is
"demonstrably justified in a free and democratic society." [86] Thus Charter claims typically are analyzed with a
generous interpretation of what the rights-protecting provisions cover; [87] if an infringement of one of those provisions is found, then
the more important analysis often occurs under the rubric of this Section 1
standard.
In analyzing this standard, the Canadian Supreme Court ("Canadian Court") has
held that two inquiries must be made: first, whether the purpose of the
governmental intrusion on the freedom or right is legitimate and of sufficient
importance to justifying limiting a right; [88] second, whether the means chosen are proportional to the
purpose - (i) are they rationally connected to the objective, (ii) do they
impair the protected rights as little as possible, [89] and (iii) are the effects of the measure generally
proportional to the objective.[90] These are the inquiries of the so-called Oakes
test.
This test of proportionality is used in a wide range of Canadian
constitutional adjudications that take place under a constitutional delegation
to the courts essentially to strike a balance between the protection of
Charter-identified rights and freedoms, on the one hand, and the "demonstrably
justified" claims of the government consistent with a "free" and
"democratic" society, on the other.[91] Section 1's provisions were fairly widely understood to
invite the Court to make "moral and political" inquiries and judgments in
resolving constitutional questions. [92]
A significant number of cases in Canada apply the Oakes test of
proportionality to determine whether to uphold a law even though it trenches in
some way on basic rights and freedoms. The test does not seem to be particularly
associated with outcomes in favor of or against the government position, unlike
the "compelling interest" test of U.S. equal protection jurisprudence.
Some famous cases, like Oakes itself (dealing with the presumption of
innocence), the Canadian abortion decision,[93] and a recent decision concerning a national ban on tobacco
advertising,[94] have struck down laws that the government argued were
sustainable under the proportionality test. In other areas, the Canadian Court
has sustained challenged statutes under the Oakes test, including the
hate speech statute challenged in Keegstra,[95] a mandatory retirement age,[96] a ban on advertising directed at children,[97] and a "secular" one-day-a-week closing law.[98]
The Oakes test has been both praised and deplored by Canadian
constitutional scholars. [99] Most scholars agree that the test has not been deployed with
the stringency suggested by its earliest emergence in Oakes.[100] Notably, the "minimal impairment" test has not been
applied as a "least restrictive means" standard, but rather, as a more flexible
analysis of whether the degree of impairment of protected rights is justifiable,
considering the importance of the right, the degree of intrusion, and the nature
of the asserted government interest.[101] Yet, Canadian scholars are divided on whether to view this
development as the court's "fundamentally sound . . .
moderation,"[102] "prudential revisionism,"[103] or "stunning inconsistency"[104] - in short, whether it is a good or a bad thing. [105]
Under Oakes' proportionality test, inquiry begins with the Court=s
deciding what the purpose of challenged legislation is and whether that purpose
is legitimate and sufficiently important.[106] This is not a non-legal decision; indeed, it is
similar to ones that U.S. constitutional cases frequently address.[107] Some of the greatest arenas of controversy
concern the definition and evaluation of legislative objectives. [108] U.S. constitutional law requires, in some areas,
definition of a statute's purpose, its legitimacy, and importance.[109] In this respect, both the U.S. and Canadian constitutional
systems already address similar questions.
Moreover, both the U.S. and Canadian legal systems sometimes require their
constitutional courts to examine the nature of the connection between the
government purpose and the means chosen; likewise, both systems are open to the
charge that the definition of purpose can be used to assure greater or lesser
fit with the means chosen. [110] While the language of "proportionality" is not generally
used in the United States, the underlying questions - involving the degree of
fit between the claimed objective and the means chosen, and a concern for
whether the intrusion on rights or interests is excessive in relation to the
purpose - are already an important part of some fields of U.S. constitutional
law, especially equal protection,[111] and free speech.[112] The simplicity of the underlying idea of proportionality
in U.S. constitutional law may be obscured by the several doctrinal forms of
multi-factored tests in which it is embodied.[113]
These basic similarities between U.S. and Canadian approaches suggest that
differences in how analyses are conducted might usefully be examined - for what
lawyers and judges may be able to "borrow" or "transplant"[114] or for a better understanding of how the systems differ
and of their possible need to differ. The Canadian proportionality cases
differ interestingly from some current U.S. constitutional approaches in several
respects. First, the Canadian Supreme Court provides more contextualized
attention to the circumstances of the challenged enactment.[115] Second, the Canadian Court's analyses
acknowledge a broader range of relevant, competing constitutional values. Third,
the Canadian justices explicitly consider comparative sources.[116] Finally, Canadian cases seem to reflect a
greater connection between the articulated test and the decision-making process
of the judges, possibly with a corresponding increase in the accessibility of
the decision to outside observers.[117] These differences are briefly elaborated below.
As an example of these differences between Canadian proportionality
analysis and the more "categorical" approach of some U.S. cases, consider
R.A.V. v. St. Paul[118]and R. v. Keegstra.[119] In R.A.V., the U.S. Supreme Court struck down a St.
Paul ordinance on the grounds that the law - which punished hate speech
amounting to "fighting words" based on race, color, creed, religion, or gender -
was an impermissible content-based and viewpoint-based regulation because it
excluded hateful "fighting words" not based on race, color, creed, religion, or
gender.[120] In Keegstra, a closely divided Canadian
Court upheld the conviction of a high school teacher who used vividly
anti-Semitic language in his classes, under a criminal statute prohibiting the
"willful" promotion (other than in private conversation) of "hatred against any
identifiable group . . . distinguished by colour, race, religion
or ethnic origin."[121]
In Keegstra, all of the justices agreed that, while the prohibition
infringed free expression guarantees of Charter Section 2(b),[122] the purpose of the statute was to prevent the promotion of
group hatred and that this was a sufficiently legitimate and important interest,
in theory, to justify the infringement of rights under the first prong of the
Oakes' Section 1 test.[123] Where the justices disagreed was in whether the statute
was proportional to this objective. The majority found that the statute was
rational, and that, in light of the peripheral nature of the free expression
interests implicated by hate speech, it minimally impaired those interests.[124] In contrast, the dissent questioned the rationality of
using criminal prosecutions to prevent hate speech, arguing that such
prosecutions may increase the appeal of the purveyors of prejudice by
"martyring" them.[125] Moreover, the dissenters argued, the statute
did not minimally impair free expression, in light of the breadth of the statute
and the track record of enforcement threats under it.[126]
Both the majority and the dissent in Keegstra, as in other Canadian
cases applying the Oakes proportionality test, demonstrate the influence
of a context-specific approach. For example, the majority describes the work of
an extrajudicial commission established in the 1960's to investigate hate crime
in Canada in order to establish the importance of the government's interest and
the nature of the harms caused by hate speech. [127] Both the majority and the dissent reviewed
factual material to conclude that the problem of hate speech in Canada was
substantial, although not of emergency dimensions.[128] In explaining its disagreement with the majority on
proportionality, the dissent did not hesitate to elaborate on the experience in
pre-Nazi Germany, which, it argued, suggests that the result of the prosecution
for hate crimes may be to increase, rather than decrease, such crimes.[129] The majority responded by explaining why, as an
empirical matter, it did not agree with the dissent's assessment of the
evidence.[130] In R.A.V. v. St. Paul, by contrast, both majority
and dissenting opinions rely almost entirely on past U.S. case precedents in
resolving the difficult constitutional questions presented.[131]
Another interesting feature of Canadian cases is the degree to which the
justices explicitly identify competing constitutional values and make
comparative normative assessments about those values, and in so doing consider
the relevance of comparative materials. In R. v. Keegstra, another
area of disagreement concerned the relative weight of the constitutional values
that, all of the Justices agreed, were important under the Canadian
constitution. For the majority, the constitutional value of promoting Charter
commitments to equality and to a multicultural society by giving equal respect
to different linguistic, racial and religious groups provided strong reason to
uphold the hate statute.[132] For the dissent, however, it was doubtful whether the
constitutional commitment to multiculturalism could ever outweigh the
constitutional value of free expression, given the role of free expression in
protecting the democratic order.[133] In discussing these issues, both the majority
and the dissent seemed to acknowledge the importance of the values held by their
fellow Justices in opposition to their own expressed opinion.[134] By contrast, in R.A.V., the majority opinion says
little about the possible value of governmental opposition to hate speech and
what it does say comes late in its opinion. [135] And in Keegstra, both the majority and the dissent
discuss international and comparative materials,[136] while the opinions in R.A.V. mention neither.[137]
Finally, the Canadian Section 1 opinions seem to lend themselves to a candid
discussion of constitutional conflict. In the Keegstra opinions discussed
above, one has the sense that the Canadian Justices identified the baseline
constitutional values and empirical judgments that divide them, providing
differing assessments of the weight to be given to competing values and of the
likely effects of enforcing the particular law. By contrast, in R.A.V.,
one wonders whether the majority really is worried about the law's failure to
make it a crime to say "Racists are misbegotten"[138] - that is, whether the failure of the hate
crimes statute to meet the "viewpoint neutrality" standard extended to "fighting
words" is sufficiently plausible to shed light on what the justices were most in
disagreement about. [139] In R.A.V., identifying the legitimacy
and importance of the statute's goals, and then analyzing whether the law was a
rational way to achieve the legitimate goals, whether the law's adverse effects
on important First Amendment interests were sufficiently limited, and whether
the law's effects were, on the whole, proportional to the legitimate government
interests, might have yielded more convincing opinions in R.A.V. -
although, as Justice McLachlin's powerful Keegstra dissent suggests, not
necessarily a different result.
The Canadian course of decisions may also suggest, however, that the effort
to doctrinalize the idea of "proportionality"[140] extends law beyond the limits of what it can realistically
achieve, and may obscure the coherence that could otherwise emerge from an
inquiry into legitimacy of purpose and proportionality or reasonableness of
means.[141] The test more recently applied is not the one implied in
Oakes - that the measure must always be the method of achieving the
objective that minimally impairs protected rights[142] - but rather, is a more fluid, sliding-scale standard
measuring the nature of the intrusion on the protected right against the
importance of the objective.[143] In Keegstra, Justice Dickson, author of
Oakes, explicitly disavows a strong "least restrictive alternative
reading" of this part of the test, explaining:
In assessing the proportionality of a legislative enactment to a valid
government objective, [section] 1 should not operate in every instance so as to
force the government to rely upon only the mode of intervention least intrusive
of a Charter right or freedom. It may be that a number of courses of action are
available in the furtherance of a pressing and substantial objective, each
imposing a varying degree of restriction on a right or freedom. In such
circumstances, the government may legitimately employ a more restrictive
measure, either alone or as part of a larger program of action, if that measure
is not redundant, furthering the objectives in ways an alternative response
could not, and is in all other respects proportionate to a valid [section] 1
aim. [144]
In summarizing his conclusion on "minimal impairment" and in
addressing the third "proportionality" criteria, Dickson explicitly links
the finding of "proportionality" to the importance under the Charter of the
interest in combating racial hatred, as well as the low (albeit still protected
by Section 2) value of the expression being prohibited. [145] Likewise, the dissent in Keegstra, while
reaching a different conclusion on minimal impairment, did not insist on a
strict "least restrictive alternative" reading of the proportionality test.[146]
One Canadian judge has argued that the biting edge of the Oakes test
has, over time, turned on the Court's assessment of how significantly the
challenged law impacts the rights protected by the Charter, [147] with minor intrusions more likely to be upheld than more
substantial ones. The test also seems to turn on assessment of the relative
value of the aspect of the right being infringed. One could, for example, read
Keegstra and RJR MacDonald[148] to suggest that advertising about lawful, although
injurious, products is more important to protect than hate speech. Thus, the
Oakes proportionality standard, with its frankly normative[149] and contextualized approaches,[150] may have endured in part because of its flexibility in
accommodating both more, and less, deferential approaches to judicial review. [151]
Returning to the question of what, if anything, the United States could
learn, or borrow, from Canada, on the one hand the "rough justice" of the idea
of proportionality has much to commend it.[152] "Proportionality" to "sufficiently
important" purposes is no less definable a legal principle than some of the more
elaborated tests of U.S. law on, for example, free speech[153] (although I do not suggest it is equivalent to some of the
more stringent categorical rules in the United States, such as the rule against
prior restraints of speech). Moreover, as developed in the Canadian case law,
the proportionality test does appear to have certain advantages in its
transparency of reasoning [154] and in its openness to the actual context of decision.
These qualities offer hope that, under a proportionality regime, the Canadian
court will distinguish between the "camel's nose" in the tent - the dreaded
slippery slope of the U.S. law school classroom leading to judicial
second-guessing of legislative policy judgments[155] - and a benign cat's paw, providing a useful tool for
making hard judgments in distinguishing those restrictions that are
"demonstrably justified in a free and democratic society" and those that
threaten the continuance of that "free and democratic society."[156]
On the other hand, there are a number of reasons for caution in embracing use
by U.S. courts of the Canadian proportionality test. First, the contextual,
accessible form of reasoning in the Canadian opinions enhances the risk that the
decisions will be viewed as less the product of "law" than of particularized
judgments. It is plausible that the framers of the Charter intended the courts
to engage in normative balancing of constitutional values. [157] Thus, in Canada perhaps a greater concern than
countermajoritarianism (that is, the legitimacy of the Court's displacement of
legislative decisions) is with the predictability of contextualized judgments
and the substantive weighting of constitutional values. The United States, by
contrast, has not so recently been through a process of self-conscious
constitution formation, and participants in its legal system may accordingly be
more uneasy about justifying the exercise of judicial judgment in the face of
legislative will. [158]
Moreover, the problem of distinguishing false and true necessities is an
enduring and difficult one: Is U.S. legal culture likely to do with a
proportionality test what Canadian legal culture does? Is the use of more formal
rules and tests more important in the United States, given the size of the
country, heterogeneity of population, and the diversity of lower court systems
that are controlled by Supreme Court decisions? [159] Is U.S. legal culture likely to view a less
formal, more open-ended approach examining the "proportionality" of legislative
means to legitimate legislative goals as an illegitimate expression of judicial
preferences as an opportunity for invidious biases to affect decision-making?[160] Or will the courts be able to explain with
enough consistency what makes a scheme proportionate, and why the measure of
proportionality will vary depending on the importance of the right infringed by
the law, the degree of intrusion on the protected right, and the government
interests being served? Do other features of Canadian constitutional law
mitigate the difficulties of its Court having authority under Section 1 to
decide whether or not particular statutes that infringe on rights are
nonetheless valid under the Oakes test?[161]
A "comparativist" challenge to consideration of "proportionality" analyses
might invoke earlier periods in U.S. constitutional history, when, for example,
First Amendment cases employed "balancing" analyses, to demonstrate the
jurisprudential evils of an approach like "proportionality" analysis that relies
in part on balancing. [162] In Dennis v. United States,[163] convictions for violations of the conspiracy provisions of
the Smith Act were upheld based on evidence that the defendants "organize[d]
people to teach and themselves [taught] Marxist-Leninist doctrine contained
chiefly in four books . . . ."[164] Both the plurality opinion and the Frankfurter concurrence
relied on balancing tests that sought to measure the gravity of the evil the
government sought to contain by its passage of the Smith Act against the
accompanying intrusion on free speech.[165] Many First Amendment scholars now view the Court's
decision in Dennis, and perhaps especially the Frankfurter concurrence,
as wrongly reasoned and decided.[166] The approach of the Court in Dennis was essentially
abandoned in Brandenburg v. Ohio,[167] currently the leading case on speech advocating unlawful
conduct.[168]
But it is not at all clear that it was the use of a balancing test used in
Dennis that led to what is now seen as an erroneous decision,
underprotective of free speech. Rather, the plurality - applying the more
definitional "clear and present danger" test, - and Frankfurter - applying a
more overt balancing analysis - gave greater weight to the danger of violent
overthrow of the government and less weight to the value of free expression of
communist teachings than would be the case under contemporary approaches.
Frankfurter=s concurrence addressed head on those values and interests that both
the majority, and the dissent, agreed were relevant.[169] Frankfurter=s key analytical move in conducting his
balancing was to announce a principle of strong deference to the legislature,[170] a principle at odds with countermajoritarian purposes of
protecting freedom of speech and far more problematic than his candid expression
of both free speech values and his interest in what was then viewed as
government survival.[171] Dennis might be taken to indicate that the stance
of deference that a judge or court takes towards a problem matters at least as
much as whether the doctrinal test is formulated as one of balancing or one of
definition. [172]
One might also challenge the claim that analysis under a proportionality or
other "balancing" test will be more transparent than analysis relying on more
formal categories as rules for decision. Both logical and empirical reasons
exist, however, to think this might be so. Logically, as Schauer and Tushnet
demonstrate, the characteristic of a formal rule, and of formalism in applying a
rule, is to ignore features of the case, or context, that might argue for a
different result. [173] The salient characteristic of formalist analysis is the
constraining force of the rule against the felt necessities of particular cases.
And if the rule of decision does not permit some factors to be of relevance, it
would not be illogical to ignore or discount those factors; doing so might avoid
or minimize professional discomfort.[174] Apart from logic, I rely on widely held (but not
quantitatively verified) impressions that "standards" as opposed to "rules," or
multi-factored balancing tests as opposed to categorical rules, are likely to
provide a larger range of arguably relevant constitutional factors than
application of a more formal rule (e.g. "no content based" regulation or "no
prior restraint" of speech). [175]
Note, however, that either formalist or "balancing" reasoning might
produce a formal rule. [176] Compare, for instance, the opinion of the U.S. Supreme
Court in R.A.V., which relies on reasoning that is formalist in character
to insist on a formal rule that invalidates the hate speech ordinance at
issue,[177] with Justice McLachlin's concern, in her R. v.
Keegstra dissent, over the potential misuse of hate speech statutes against
oppressed groups themselves, and her further concern that prosecutions under
hate speech statutes may be counterproductive towards equality and
anti-discrimination goals because they tend to make martyrs of the defendants.[178] Arguments in favor of a categorical rule, then, can be
formally analytical, as in R.A.V. v. St. Paul, or may reflect contextual
judgments about a range of factors, as in the McLachlin dissent in R. v.
Keegstra. Even under a "proportionality" analysis, moreover, rules could
emerge that would prohibit content-based restrictions on an analysis similar to
MacLachlin's. Transparency values in defining the legal rule can thus be served,
at least in part, by the reasoning that produces a formal rule, although as
lower courts apply the rule some of this value may be lost.
Finally, advocates of more categorical, formal rules argue that such rules
will yield greater predictability in results than more open-ended judgments
under multi-factored standards. Much of the answer to the question whether
"proportionality" analyses will be too unpredictable will lie in the
"doing." Balancing standards bear some risk of too much fluidity, permitting
constitutional values to yield too readily to the perceived expediences and
conveniences of the given time; Alex Aleinikoff has rightly pointed to the risk
of reducing "rights" to simply an item of cost and benefit that balancing
metaphors may entail.[179] Yet proportionality analysis, in its emphasis on
judgment, may be less likely to have this effect than "balancing" tests
articulated in the language of a scientific scale. Categorical rules, moreover,
may obscure more than prevent the exercise of judgment about matters of context
and degree.[180] Free speech values under proportionality analysis should
be given great weight in a free and democratic society, and proportionality
analysis could yield presumptive protection for speech falling into categories
that a court views as highly protected.[181] Finally, how important predictability is as a value may
vary with the constitutional context, and the hardest cases at any point in time
may be least likely to be constrained by preexisting "formal" rules and the most
difficult to predict under "balancing" analyses.
Whether in the lower courts some constitutional values may be better
protected through categorical rules rather than multi-factored analyses, seems
open to debate. (As noted earlier, the size and diversity of lower courts that
will be called on to enforce and apply the rule may be relevant to this
inquiry.[182]) What Keegstra illustrates is that
constitutional reasoning in difficult cases can be illuminatingly carried out
under the "proportionality" test and that this approach has some advantages over
alternative styles of reasoning.
Keegstra raises, but cannot answer the question whether U.S.
constitutional reasoning and law would be improved by use of such alternative
approaches, or, more generally, by considering how other constitutional systems
have responded to similar problems. As discussed below, awareness of the uses of
"proportionality" analyses in the constitutional law of other nations may help
in understanding the implications and possibilities of the U.S. Supreme Court's
recent embrace of the idea of proportionality in City of Boerne v.
Flores.[183]
In Flores, the Court held unconstitutional the Religious Freedom
Restoration Act [RFRA]. RFRA was enacted in direct response to the Court's 1990
decision in Smith v. Employment Division, [184] which changed prior law to hold that neutral
generally-applicable laws may constitutionally be applied even to those who
claim that the law imposes a burden on a religious practice. Under Smith,
generally-applicable laws, such as those prohibiting the use of peyote,[185] prescribing the diet for state prisoners,[186] or requiring autopsies in cases of sudden death, [187] are immune from attack on the grounds that for some
persons (typically members of minority religious groups) the practice proscribed
by law is required by their religion or that the practice required by law is
prohibited by their religion.
Under RFRA, by contrast, neutral, generally-applicable laws could be
challenged as burdening religious practice. Under RFRA, a state, local, or
federal government may not impose a substantial burden on a religious practice
unless the government can establish that the burden it is imposing is the least
restrictive means of serving a compelling government interest. [188]
Flores held that this statute exceeded Congress's power under Section
5 of the Fourteenth Amendment.[189] The Section 5 power, the Court concluded, was limited to
remedying or preventing violations of Section 1 and did not permit
Congress to change or to alter the substantive meaning of the rights secured by
Section 1 of the Fourteenth Amdendment.[190] While recognizing that the distinction between remedial
and substantive laws was a fine one, the Court nonetheless found that RFRA was
an impermissible attempt to alter the meaning of the Free Exercise Clause as it
had been interpreted by the Court in Smith.[191] In light of the Smith decision concerning what
constitutes a free exercise violation, the Flores Court held RFRA to be
an impermissible exercise of the Section 5 power because RFRA could not be
regarded as proportional to its assertedly remedial or preventive
objective.[192]
Viewing the statute as a claimed remedial or preventative measure, the Court
held that RFRA could not be regarded as "as a reasonable means of protecting the
free exercise of religion as defined by Smith;" instead, the statute
lacked "congruence between the means used and the ends to be achieved."[193] Flores thus invoked the norm of proportionality as
an important test of whether a measure enacted pursuant to Section 5 of the
Fourteenth Amendment would be regarded as a valid measure to remedy or to
prevent a violation of Section 1 of the Fourteenth Amendment, or as an invalid
attempt by Congress to define the substantive meaning of Section 1.
In explaining its conclusion of nonproportionality, the Court first noted
that the legislative record was virtually bereft of contemporaneous examples of
generally-applicable laws passed as a result of religious bigotry - the type of
laws that would violate the free exercise clause as defined in Smith.
Instead, the focus of the legislative hearings was on "laws of general
applicability which place incidental burdens on religion," that, under
Smith, were constitutionally valid.[194] Apart from the legislative record, however, and more
important for the Court, was the fact that "RFRA is so out of proportion to a
supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior."[195] In reaching this conclusion the Court relied on (1) the
broad sweep of RFRA; (2) RFRA's lack of temporal or geographic limits; and (3)
the rigor of the test it imposed on any government practice alleged to burden
religion and the ensuing burdens this placed on the defending governments,[196] a "considerable congressional intrusion into the States'
traditional prerogatives and general authority to regulate for the health and
welfare of their citizens . . . imposing a heavy litigation
burden . . . [and] curtailing their traditional general
regulatory power . . . ." [197]
However novel this proportionality test may sound to U.S. constitutional
ears, as described above the idea of proportionality as a measure of the
constitutionality of laws is highly developed in Canadian constitutional law. It
is also a marked feature of German constitutional law.[198] Yet in both Canada and Germany, courts appear to invoke
the concept of proportionality primarily in decisions relating to individual
rights and not in cases involving the distribution of federal powers.[199] Awareness of this feature of Canadian case law prompts the
question whether a proportionality test serves (or should serve) the same
function in addressing federalism issue, like that in Flores, as it does
in a free speech case like Keegstra.
If one conceives of the division of powers between the federal and state
governments as similar to the arena of individual freedom, that is, as according
rights to each level of government to regulate within their sphere, then
the concept of proportionality can be regarded as doing much the same work. A
proportionality analysis of a government regulation claimed to violate an
individual right asks whether the regulation itself is proportional to the
government's asserted legitimate goal, and whether the harm caused to individual
rights is proportional to the possible benefits of the regulation. Such a test
can be applied in more or less deferential ways, and with greater or lesser
degrees of ex ante categorization. Likewise, if one conceives of states as
having "rights" to regulate some substantive areas (e.g., family law,
inheritance laws, "local" commerce), then a proportionality analysis of federal
regulation could ask whether the regulation is proportional to the federal
government's asserted legitimate objective, and whether the harm caused to the
states' right to regulate is proportional to the benefits of federal
regulation.[200]
Critical to such an application of proportionality analysis to federalism
issues is the premise that there exists a definable allocation of "rights" to
regulate in certain areas assigned to the sub-national level(s) of government.
But if states do not have "rights," analogous to individual rights, to regulate
in particular areas,[201] then the constitutional judgment being sought should
differ.[202] If one conceives of the arena of state government power to
regulate private activities as an area that is defined in large part by the
exercise of federal power, flexible, and changing over time, then
proportionality analysis should have a smaller role to play in federalism-based
challenges to the constitutionality of national action. If states have no
"right" to retain exclusive legislative authority over particular areas, what is
the baseline against which to measure the proportionality of harm to something
analogous to a constitutional right?[203] One could still inquire whether the measure is
proportional to the asserted legitimate purpose of the federal governmental
activity and to the harms caused to state interests.[204] But this inquiry could be either very diffuse, very
intrusive, or both. Without a baseline measure of a "right" to regulate, or a
rule constraining the level of detail of federal enactments (which exists in
some constitutional systems but not in the United States),[205] application of proportionality review to federalism-based
challenges to national power should be highly deferential to legislative
judgments in order to minimize risks of judicial invalidation based on
disagreement over "policy" issues concerning the scope of federal
regulation.
One could still ask, though, whether the federal law is plausibly related to
a subject over which the federal government has power to act - a basic requisite
of constitutional government being that governments act only as they are
authorized by law.[206] Understood in this sense, the proportionality test of
Flores could function as a more respectful version of a "purpose"
or "legitimate ends" test[207] (similar in some ways to the Canadian "pith and substance"
test[208] for evaluating whether the federal government, or the
provinces, have authority to legislate on particular issues). A disproportional
law may be a law not really designed for one asserted purpose but to sweep more
broadly or in other directions.[209] In this sense, Flores=s proportionality test may be
a reinvigoration of the "legitimate end" test of McCulloch v. Maryland,[210] through a mechanism perhaps less difficult to administer,
in light of the challenges of identifying a collective legislative intent and
the reluctance of courts to attribute improper motives to a coordinate branch of
government.[211] But, using "proportionality" as a surrogate for "purpose"
in the federalism context requires a highly deferential stance towards
Congress's use of its powers, to be overcome only in the presence of a very
clear disproportionality between legitimate end and chosen means.[212]
Assume for the moment that one agreed with Smith's view on the scope
of the Free Exercise Clause and further agreed with Flores' view that
Congress's only role in Section 5 was to remedy or prevent Section 1 violations
as the Court defined them.[213] On these large assumptions, the conclusion that followed -
that this statute could not be upheld as an effort to prevent or remedy those
kinds of violations - seems quite plausible. Notwithstanding early critique of
the proportionality standard that it offers "little if any principled guidance
as to where the line will be drawn in any particular case,"[214] the Court=s conclusion that RFRA sweeps more broadly than
a law designed to prevent what the Court would find to be invidiously
motivated interferences with religious freedom seems reasonable, in light of the
legislative record's suggestion that the principal problem to which RFRA was
directed was the adverse effect on minority religious practices of neutral,
generally-applicable statutes.[215] Application of a proportionality test might reasonably
lead the Court to conclude that the purported remedial justification - that the
statute was needed to prevent invidiously-intended, bad treatment of minority
religious groups - was a fictive fig leaf or an after-the-fact justification
designed to paper over the real contest - a disagreement between Congress and
the Court on the meaning of religious liberty.[216]
Having said this, one might still be troubled about whether the
"proportionality and congruence" standard of Flores contemplates a more
activist role for judicial review than has developed under McCulloch's
standard for reviewing whether federal legislation is within federal power.[217] One might be particularly concerned in light of the U.S.
history of review of the "appropriateness" of civil rights legislation so
rigorous as to undermine the egalitarian goals of the Reconstruction
Amendments.[218] Canadian (and European) proportionality analyses in
individual rights cases suggest that it might be rational, if not wise, to take
an action that could not meet the more rigorous formulations of proportionality
testing.[219] But a look at the constitutional jurisprudence of
Australia offers a way of thinking about the proportionality standard that may
be useful, cabining proportionality analysis to a highly deferential inquiry in
which only gross disproportionality would be a basis for invalidation,
essentially as a surrogate for purpose analysis.
In Australia, the idea of proportionality has been applied to review
challenges to federal action as outside the scope of federal power. Australian
writers describe the concept as inspired by the European Court of Justice and
European Court of Human Rights' jurisprudence.[220] Jeremy Kirk, an Australian scholar, has suggested that the
concept of proportionality has different roles to play in federalism as compared
to individual rights cases. He argues that in assessing whether an act of the
federal government "can be characterized as having a sufficient link" to a head
of federal power "to be valid," proportionality can serve as "an objective test
of purpos [221] In assessing the validity of a "purposive" federal power,
he suggests, elements of the proportionality test must be employed more
narrowly: "[t]he court would have to ask whether availability of less
restrictive means, or the imbalance [of benefits and harms], was of such an
overwhelming nature as to make it clear that the law could not reasonably be
characterized as having been made with respect to the claimed legitimate
purpose."[222]
In other words, the argument is that courts should - in order to avoid
inappropriate second-guessing of legislative decision-making - invalidate laws
as outside federal power only where the law is so grossly disproportionate to
the asserted goal as to cast doubt on the validity of the purported purpose. In
order to avoid a quagmire of constitutional uncertainty in the U.S.
constitutional setting, given both the lack of discrete areas reserved to the
states as matters of regulatory jurisdiction and the constitutionally-protected
participation of states in constituting the federal government,[223] a judicial policy of highly deferential review of
exercises of federal power (not claimed to violate individual rights) makes
sense. While Congress's institutional attention to the needs and interests of
the different states is not a reason for refraining from judicial review
altogether, it is a reason for highly deferential judicial review. [224] With this important caveat - that the proportionality of
congressional means to the claimed purpose is reviewed with considerable
deference[225] - the introduction of the concept of proportionality in
Flores could be relatively benign.[226] It certainly provides an occasion for further comparative
reflection on the use of this concept elsewhere and its (some might say) strange
absence from U.S. constitutional law.
I recognize the strength of David Cole=s point that a proportionality test
does not tell where the line will be drawn.[227] But, such a test does permit one to say that some statutes
are a closer fit, are more proportional, to a constitutional wrong, than are
others. And ultimately, isn't what is enough of a fit a question of judgment
under many of the tests? How rigorously proportionality will be applied may
depend on the degree of deference given to Congress's determinations - whether
Congress behaved rationally in concluding that the statute was proportional, or
whether some more rigorous standard will be applied (which I would not favor).[228] In Flores, however, Congress's main motivation in
some sense was a disagreement with the Smith Court on what counts as a
substantive violation. [229] Thus, the standard of deference was arguably irrelevant:
proportionality in Flores was being used as an alternative to screening
for impermissible legislative purpose.
Does this discussion mean that the U.S. Supreme Court was either right or
wrong in adopting a proportionality test in Flores? Perhaps neither.
Ultimately, courts and commentators cannot avoid coming to grips with the
historical reverberations of particular approaches within their own polities. In
this light, the nineteenth century U.S. Court's hobbling of enforcement of the
Reconstruction Amendments stands as an important caution in embracing
"proportionality analysis" of federalism-based challenges to national laws,
particularly outside the above-discussed inquiry into "gross
disproportionality." Knowledge of the strikingly comparable developments of
"proportionality" as a concept in other constitutional systems, however, and of
their more intricate articulations of the proportionality test (in both
individual rights and federalism issues) can inform decision of the range of
consequences for adoption of this approach in the United States.
Flores is relevant to this article not only in its use of
proportionality as a concept in constitutional law, but also in another way: it
suggests that the Court may, at times, be unecessarily close-minded in its
appreciation of congressional input on constitutional interpretation in ways not
unconnected to its resistance to comparative constitutional influences.
There is much room for disagreement with the Flores Court. Its
reliance on the drafting history of the Fourteenth Amendment for the proposition
that Congress was not intended to play a role in defining the substantive reach
of the Section 1 rights is based on a highly contestable reading of that
history.[230] And the scope of the free exercise clause itself is a
difficult question, the Smith decision, leaving many constitutional
scholars, as well as politicians, deeply troubled.[231]
But here I would like to consider arguments made by both David Cole and
Michael McConnell,[232] that the Court's assertion of judicial supremacy in
interpretation need not have been accompanied by the implicit claim of judicial
exclusivity in interpretation of constitutional provisions or by what appeared
as a studied refusal to reconsider the constitutional question of Smith
in light of Congress's findings and concerns.[233] Given Congress's explicit constitutional role in enforcing
the Fourteenth Amendment, the Court might have found congressional views
relevant, particularly since the Court itself was closely divided in
Smith. Instead, the Court suggested that Congress should have recognized
the stare decisis principles that would mandate judicial adherence to
Smith and implied that Congress should not have challenged the Court's
decision in Smith through enactment of a statute premised, in part, on
disagreement with Smith.[234]
But, was it inappropriate for Congress to test the limits of both the
Smith principle, and of stare decisis, by enacting legislation
that rested, in part, on a different constitutional theory?
This argument, while only implicit in Flores, is related to the
arguments made by the plurality in Planned Parenthood v. Casey,[235] that the Court should adhere to certain past
decisions particularly when confronted with political pressure to change an
existing interpretation.[236] Critics counter that, particularly because it
is a constitution being expounded, the Court should change its interpretation
when persuaded that it is wrong (and can make the change without unsettling
reliance interests on which law and political arrangements rest).[237] If this critique of the stare decisis argument in
Casey is correct, a fortiori it cannot be the case that the
political branches are bound by separation of powers principles not to legislate
on a plausible, competing constitutional theory.
It is not so much the assertion of judicial supremacy in interpretation with
which I am concerned,[238] but rather the suggestion that Congress violates the
separation of powers in enacting a statute premised on a different
constitutional theory and the implication that the Court should refuse to
consider Congress's views on substantive questions. The latter, at least, raises
echoes of the Printz Court's unwillingness to consider foreign
constitutional practices in resolving U.S. constitutional questions. In the one
case, foreign constitutional decisions might be worthy of consideration because
they reflect reasoned judgments of other judges faced with similar problems.[239] In the other, congressional views of the Constitution
might be worthy of note because they come from a coordinate branch carrying out
constitutional responsibilities of lawmaking and because they may reflect
substantial general understandings of constitutional meanings. Constitutional
adjudication probably cannot depart too far and too often from such
understandings.
Should the practices and views of foreign constitutional systems, of the
state courts, or of the Congress, be dispositive or controlling in
constitutional adjudication? Surely not. Although compelling arguments exist for
why Congress should have ample latitude to address what it sees as
constitutional violations under Section 1 in the exercise of its Section 5
power, to construe the provision as affording Congress unfettered and
unreviewable choice would probably yield too much power to maintain a
constitutional balance. Moreover, well-reasoned and explained Court decisions
can influence public and congressional understanding of the Constitution.
But are Congress's views on constitutional meaning irrelevant, and
impermissible, on the question of scope? I would think not. Even the Court=s
view recognizes that the purported dividing line between substance and remedy is
an uncertain one, and yields substantial deference to Congress on preventive and
remedial issues. Being aware of Congress's considered views on the meaning of a
substantive provision might well be relevant to sound constitutional
adjudication, which, at least in reference to federalism issues, is an exercise
of governance that must be both principled and pragmatic.[240]
Why, then, the Court's tone of rebuke to Congress in Flores, and of
parochialism in Printz? Maybe just happenstance, but perhaps they are
symptoms of current anxieties about the role of the Court, and of U.S. judicial
review,[241] to which I alluded earlier. Congress has challenged the
Court=s interpretations, both statutory and constitutional, repeatedly in recent
years.[242] The very titles of the statutes constitute a visible
confrontation with the Court - the Religious Freedom Restoration Act, the Civil
Rights Restoration Act - implying that Congress is restoring what the Court took
away. This is in contrast to other periods in the Court=s history when its most
contentious rulings were those imposing limitations on states and were supported
(or at least not challenged) at the national level. The justices may also
perceive themselves under greater scrutiny and attack by Congress at an
administrative level.[243] Finally, members of the Court cannot help but be aware of
the increased interest in, and familiarity with, other systems of constitutional
adjudication whose courts function well even though structured quite differently
from those of the United States. All of these factors may contribute to the
Court's defensiveness and assertiveness in excluding interpretive sources not
more within the Court=s control. Yet in the constitutional conversation of which
adjudication is a major part, open-mindedness and a willingness to be humble
about the correctness of one=s views may actually go farther in preserving the
rightful legitimacy of the Court.
I am guardedly optimistic that U.S. courts will be more open to foreign
constitutional learning in the future. In 1996, for instance, Justice Sandra Day
O=Connor, addressing the American College of Trial Lawyers, had this to say:
I think that I, and the other Justices of the U.S. Supreme Court, will find
ourselves looking more frequently to the decisions of other constitutional
courts. Some, like the German and Italian courts, have been working since the
last world war. They have struggled with the same basic constitutional questions
that we have: equal protection, due process, the rule of law in constitutional
democracies. Others, like the South African court, are relative newcomers on the
scene but have already entrenched themselves as guarantors of civil rights. All
these courts have something to teach us about the civilizing functions of
constitutional law.[244]
In 1989, Chief Justice Rehnquist made a similar call for learning from other
constitutional courts.[245] Perhaps, then, the United States is beginning to be ready
to open up the constitutional conversation, if not across institutional borders
between the branches of government, then across national borders with other
courts.
[*]
John Carroll Research Professor of Law (1998-99), Georgetown
University Law Center. My thanks to the University of Pennsylvania Law School
and the student editors of the Journal of Constitutional Law for sponsoring the
Symposium on Comparative Constitutional Law at which this paper was delivered. I
am particularly indebted to Mark Tushnet for many conversations about
comparative constitutional law as well as for his helpful comments on drafts of
this paper, and to Dan Ernst for his unfailingly generous, and rigorous,
guidance on research in legal history. My thanks also to James Feinerman, Leslie
Griffen, Seth Kreimer, Judith Resnik, Mike Seidman, Alexander Somek, Robert
Taylor and Robin West who were kind enough to read or discuss very rough drafts
of this paper and to provide helpful comments. Finally, I want to thank my
research assistants, Elaine Combs, John Cuddihy, Beth Heinold, and Heather
Walker, for their able assistance.
[1] See [1986] 1 S.C.R. 103, 108 (holding that a statutory
presumption that possession of narcotics implied trafficking violated the
presumption of innocence guaranteed by the Canadian Charter of Rights and
Freedoms and was unconstitutional because it was not "demonstrably justified in
a free and democratic society").
[2] 521 U.S. 898 (1997) (holding unconstitutional "Brady Act"
interim provisions requiring local law enforcement officers to conduct
background checks on prospective gun purchasers, based on ground that it is
inconsistent with the implicit rule of U.S. federalism that the federal
government cannot "commandeer" state officers into executing federal law).
[3] Id. at 921 n.11.
[4] Id. In contrast, consider Justice Frankfurter's attempts
earlier in this century to invoke similarities between the constitutional
federalism of the United States, of Canada and of Australia on issues of
intergovernmental tax immunity. See e.g., United States v. Allegheny
County, 322 U.S. 174, 198 (1944) (Frankfurter, J. dissenting) ("In respect to
the problem we are considering, the constitutional relation of the Dominion of
Canada to its constituent Provinces is the same as that of the United States to
the States. A recent decision of the Supreme Court of Canada is therefore
pertinent. In City of Vancouver v. Attorney-General of Canada [1944]
S.C.R. 23, that Court denied the Dominion's claim to immunity in a situation
precisely like this, as I believe we should deny the claim of the Government.");
Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491 (1939)
(Frankfurter, J., concurring) (intergovernmental tax immunity case raises the
"same legal issues" as in Australia and Canada under cited provisions of their
constitutional acts). For a critique of Frankfurter's assumption that the
constitutional relationships were the same, see infra note 46.
[5] Printz, 521 U.S. at 976.
[6] Id. at 977.
[7] The burden was not only relatively small (particularly in light
of the U.S. government interpretation of the "reasonable efforts" language of
the statute, see Respondent's Brief at 6, Printz (No. 95-1478)
citing ATF Guidances) but was also time-limited. The requirement that local law
enforcement officers perform background checks lasted for five years, at which
time, in November 1998, the obligation became that of the federal government,
using a computerized national data base developed during the interim
period.
[8] See Printz, 521 U.S. at 977.
[9] See id. at 921 n.11.
[10] Note that in Washington v. Glucksberg, 521 U.S. 702
(1997), Chief Justice Rehnquist, writing for a Court that included Justice
Scalia, cited and described decisions from other nations' constitutional courts
in identifying the relevant "background" to evaluate the claim that the State of
Washington's prohibition on assisted suicide violates the Due Process Clause.
See id. at 718 n.16 (citing, inter alia, a 1993 Canadian Supreme
Court decision, Rodriguez v. British Columbia (Attorney-General), 107
D.L.R. (4th) 342 (1993), which construed the 1982 Canadian Charter of Rights and
Freedoms not to include a right to assisted suicide).
[11] See Glucksberg, 521 U.S. at 718 n.16; Planned
Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 945 n.1 (1992) (Rehnquist, C.J.,
concurring in the judgment in part and dissenting in part) (citing abortion
decisions by the West German Constitutional Court and the Canadian Supreme
Court).
[12] William Rehnquist, Constitutional Courts-Comparative
Remarks (1989), reprinted in GERMANY AND ITS BASIC LAW: PAST,
PRESENT AND FUTURE-A GERMAN-AMERICAN SYMPOSIUM 411, 412 (Paul Kirchhof &
Donald P. Kommers eds., 1993).
[13] 492 U.S. 361 (1989).
[14] Id. at 369 n.1 (emphasis in original).
[15] Id. at 384 (Brennan, J., dissenting).
[16] See id. at 389 (referring to amicus brief submitted by
Amnesty International).
[17] See id. ("Our cases recognize that objective indicators of
contemporary standards of decency in the form of legislation in other countries
is also of relevance to Eighth Amendment analysis.").
[18] See Thompson v. Oklahoma, 487 U.S. 815, 830 (1988)
(Stevens, J., for the plurality) (looking to "other nations that share our
Anglo-American heritage," and "leading members of the Western European
community" to confirm that it would "offend civilized standards of decency" to
execute juvenile for crimes committed before age 16); Enmund v. Florida, 458
U.S. 782, 796 n.22 (1982) (noting developments in European and Commonwealth
countries for support in holding the death penalty unconstitutional for robber
who did not kill or intend to kill); Coker v. Georgia, 433 U.S. 584, 596 n.10
(1977) (White, J., plurality opinion) ("It is . . . not
irrelevant here that out of 60 major nations in the world surveyed in 1965, only
3 retained the death penalty for rape where death did not ensue.") (White, J.,
for the plurality).
[19] 356 U.S. 86 (1958).
[20] Id. at 102 (Warren, C.J., announcing judgment of Court
and opinion joined by Black, Douglas, and Whittaker, JJ.).
[21] Id. at 102-03.
[22] 149 U.S. 698, 728 (1893) (upholding federal statute providing
for exclusion and removal of Chinese persons and for punishment at hard labor
prior to removal, and further providing registration system for Chinese laborers
requiring either special certificate of residence or proof on testimony of "one
credible white witness" of their entitlement to reside).
[23] See id. at 711 (referring to "an inherent and
inalienable right of every sovereign and independent nation").
[24] Id. at 737 (Brewer, J. dissenting).
[25] Id. at 757 (Field, J. dissenting) (citations omitted)
(emphasis added). Brewer's and Field's claims here might be compared with the
debate, in Loving v. United States, 517 U.S. 748 (1996), over the
relevance of English constitutional history to the relative scope of
congressional and presidential power in determining the punishment for courts
martials. The Loving majority relied on one (somewhat contested) view of
what was permitted under English law at the time of the framing. Justice Scalia
argued that this view was "irrelevant" since the framers deliberately adopted a
model of governance quite distinct from the Westminster model. See
Loving, 517 U.S. at 775-76 (Scalia, J. concurring in part). In either event,
both the majority and Justice Scalia treated the foreign practice as relevant,
if at all, only as it bore on the original understanding of the clauses in
question, a significant but not exclusive mode of constitutional decision-making
in the United States.
[26] 505 U.S. 377 (1992).
[27] Id. at 382-83.
[28] [1990] 3 S.C.R. 697. Although Canadian Supreme Court
decisions are available, in English, in major law libraries (and were accessible
on-line through QUICKLAW beginning in 1989), Keegstra was apparently
mentioned in only one of the many briefs filed in R.A.V. (based on an
examination of the Table of Authorities of those briefs available on LEXIS).
See Brief Amicus of the National Black Women's Health Project in Support
of Respondent, R.A.V. v. St. Paul, 505 U.S. 377 (1992) (No. 90-7675); see
also Brief Amicus Curiae of the Asian-American Legal Defense and Education
Fund et. al., R.A.V. v. St. Paul, 505 U.S. 377 (1992) (No. 90-7675) (listing a
1989 law review article comparing U.S. and Canadian approaches to hate speech).
If lawyers are not aware of and do not refer to constitutional decisions of
other courts, it is less likely that the Court will do so.
[29] Keegstra [1990] 3 S.C.R. at 713.
[30] See id. at 739-42 (Dickson, C.J.); id. at
812-22 (McLachlin, J., dissenting).
[31] Similarly, with the exception of Justice Frankfurter's
reliance on Australian and Canadian decisions on intergovernmental tax issues,
U.S. Supreme Court decisions earlier in this century on federalism issues tended
not to refer to cases from Canadian or Australian courts on analogous issues.
Compare Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (invalidating
federal tax designed, through exemptions, to require limits on child labor)
with Rex v. Barger, (1908) 6 C.L.R. 41 (High Court of Australia) (holding
that "implied prohibitions" of the constitution - to protect state authority and
to regulate labor conditions - invalidated federal tax on manufactured goods
designed, through exemptions, to impose minimal working condition
requirements).
[32] Some justices, present and past, resort to comparative
experience in constitutional decision-making with relative degrees of comfort,
sometimes to support claims of the distinctiveness of the U.S. experience, while
at other times as if they were relevant and helpful to the resolution of
domestic constitutional questions. Compare Printz v. United States, 521
U.S. 898, 921 n.11 (1997) (asserting irrelevance of other nations, experience to
U.S. constitutional interpretation), Loving v. United States, 517 U.S. 748,
775-76 (1996) (Scalia, J., concurring in part) (asserting that the framers of
the U.S. Constitution put it in writing to make clear that it was different from
the English government it replaced) and Fong Yue Ting v. United States,
149 U.S. 698, 737, 757 (1893) (Brewer & Field, J.J., dissenting) (rejecting
the applicability of the foreign doctrine of inherent sovereignty and
emphasizing the irrelevance of foreign government practices to U.S.
constitutional law), with United States v. Allegheny County, 322 U.S.
174, 198 (1944) (Frankfurter, J. dissenting) (relying on a decision of the
Supreme Court of Canada on the ground that the relation of Canada to its
Provinces resembles that of the United States to its States) and Printz
v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting) (observing
that despite structural differences between legal systems, foreign legal
experience "may nonetheless cast an empirical light on the consequences of
different solutions to a common legal problem").
[33] And even Justice Scalia has on occasion acknowledged a
(quite) limited role for foreign practice. See Thompson v. Oklahoma, 487
U.S. 815, 868-69 n.4 (1988) (Scalia, J., dissenting) (stating that the practices
of other democracies may be relevant to determining whether a practice uniformly
adopted by the American people is merely a historical accident or is instead
"implicit in the concept of ordered liberty").
[34] See Printz, 521 U.S. at 921 n.11.
[35] In a strict jurisprudence of original intent, foreign
experience may be irrelevant (except insofar as it relates to the understandings
of the original group whose intentions count). Justice Scalia, for
instance, implies that judges can only interpret, and never make,
the constitution and has worked to develop a jurisprudence that appropriately
constrains judicial choices by rooting them, wherever possible, in original
decisions reflected in authoritative texts. See Antonin Scalia,
Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989). Few
justices, however, are rigidly committed to originalism as the sole method of
interpretation, particularly on structural issues of federalism and separation
of powers, and it is a method whose drawbacks are legion. For illustrative
discussions, see H. Jefferson Powell, The Original Understanding of Original
Intent, 98 HARV. L. REV. 885 (1985); Mark V. Tushnet, Following the Rules
Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L.
REV. 781, 786-804 (1983); Ronald Dworkin, The Forum of Principle, 56
N.Y.U. L. REV. 469, 472-500 (1981).
[36] That interpretation of federalism-related provisions in other
constitutions may be of less relevance than comparative decisions in other areas
has some plausibility because of the deeply and necessarily pragmatic,
contextual and dynamic nature of successful constitutional federalism. See
generally Vicki C. Jackson, Federalism and the Uses and Limits of Law:
Printz and Principle?, 111 HARV. L. REV. 2180, 2228-29 (1998) [hereinafter
Jackson, Federalism]. By contrast, the individual rights claims of the
Declaration of Independence, which served as the basis for provisions in the
U.S. Bill of Rights, were designed to be appealing to an international audience
and drew on traditions of what today might be called international human rights;
the international appeal of human rights to be free from torture,
discrimination, religious oppression are embodied in several international
conventions today. See, e.g., International Covenant on Civil and
Political Rights, art. 18, 999 U.N.T.S. 171; The International Convention on the
Elimination of All Forms of Racial Discrimination, opened for signature
Mar. 7, 1966, S. EXEC. DOC. C, 95-2, at 1 (1978), 660 U.N.T.S. 195; The
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature Feb. 4, 1985, S. TREATY DOC. NO. 100-20
(1988), 23 I.L.M. 1027, as modified, 24 I.L.M. 535; see also
Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., art.
18, at 71, 74, U.N. Doc. A/810 (1948); cf. Robin West, Is the Rule of
Law Cosmopolitan, - QUINNIPIAC L. REV. - (forthcoming 1999) (arguing that
commitment to the rule of law should encourage egalitarian understandings of
justice embodied in law that are universal and that extend to people regardless
of their nationalities or locations).
[37] See, e.g., Washington v. Glucksberg, 521 U.S. 702, 718
n.16 (1997), (where Court, in an opinion written by Rehnquist and joined by
Scalia, relied in part on foreign constitutional decisions denying that their
constitutional bill of rights provisions protected a right to assisted
suicide).
[38] Compare Stanford v. Kentucky, 492 U.S. 361, 364 n.1
(1989) (rejecting contention that sentencing guidelines of other countries are
relevant to determination of "evolving standards of decency") with Trop
v. Dulles, 356 U.S. 86, 126 (1958) (Frankfurter, J., dissenting) (arguing that
loss of citizenship is not cruel and unusual punishment because civilized
nations use this punishment). Constitutions can explicitly require resort to
foreign constitutional law. See S. AFR. CONST. ?39(1)(b), (c) (1996)
(requiring courts, when interpreting the Bill of Rights, to consider
international law, and authorizing courts to consider foreign
law).
[39] Thus, Justice Breyer argued unsuccessfully in Printz v.
United States, the successful experience in other constitutional, democratic
federations suggested that it was not necessary to construe our Constitution to
include a non-commandeering principle. See 521 U.S. 898, 976-78 (1997)
(Breyer, J., dissenting); see also Adkins v. Children's Hosp., 261 U.S.
525, 570-71 (1923) (Holmes, J., dissenting) (arguing that experience in other
nations, including Great Britain and Australia, supported the reasonableness,
and hence the constitutionality, of a minimum wage law for women that the Court
held unconstitutional). In contrast, other Justices have referred to experience
in other countries as bearing, negatively, on how the Constitution should be
construed. See, e.g., Youngstown Sheet & Tube v. Sawyer, 343 U.S.
579, 593-94 (1952) (Frankfurter, J., concurring) (referring implicitly to
fascist dictatorships in Europe as a reason to constrain presidential power even
though it "is absurd to see a dictator in a representative product of the sturdy
democratic traditions of the Mississippi Valley"); id. at 641 (Jackson,
J., concurring) (noting negative example of George III and "instruction from our
own times" of executive powers in "totalitarian" governments).
[40] Comparative constitutional experience may also bear on issues
of constitutional design or amendment that occur outside of adjudicatory
process, but the balance of this article will focus on adjudication.
[41] See Michael Kammen, The United States Constitution,
Public Opinion, and the Problem of American Exceptionalism, in THE
UNITED STATES CONSTITUTION: ROOTS, RIGHTS AND RESPONSIBILITIES (A.E. Dick
Howard, et. al. 1992) (noting the continued importance of exceptionalism in
American history generally and describing the longstanding role of public
opinion in constitutional adjudication). On whether "exceptionalism" in national
histories is really "exceptional," see Carl Degler, In Pursuit of an American
History, 92 AM. HIST. REV. 1 (1987) (suggesting importance of understanding
"national character," and arguing benefits of comparative historical study so as
to better understand what is "exceptional" about a particular nation's history).
For an example of what might be regarded as nineteenth century British
constitutional exceptionalism, see Bank of Toronto v. Lambe [1887] 12
A.C. 575, 587 (Privy Council, reviewing Canadian Supreme Court decision, and
asserting that U.S. constitutional cases on federalism are irrelevant to the
interpretation of the British North America Act). For what may be implicit
responses of Canadian judges, see In re Prohibiting Liquor Laws [1894] 24
S.C.R. 170, 205, 231 (emphasizing intent of the Canadian framers to "devise a
scheme by which the best features of the Constitution of the United States of
America, rejecting the bad, should be engrafted upon the British
constitution . . . ." and asserting the fundamentally
Canadian character of the British North America Act).
[42] See supra note 32 (noting their denial of the
applicability of foreign practices to interpretation of U.S. constitutional
law).
[43] Legal training, to the extent it existed in law schools in
the late eighteenth and early nineteenth centuries, may have been more
"comparative" than those of the mid-twentieth century. Both Harvard and the
University of Virginia, for example, included arguably "comparative" offerings
as required courses in early days; at Virginia, international law (the "law of
nations") was required and at Harvard there appear to have been required
lectures or courses in the civil law, the history of the common law, natural law
and ecclesiastical law. See JOHN RITCHIE, THE FIRST HUNDRED YEARS: A
SHORT HISTORY OF THE SCHOOL OF LAW OF THE UNIVERSITY OF VIRGINIA FOR THE PERIOD
1826-1926, at 11, 27-28, 64, 76-78, 104 (1978) (also noting that first-year
curriculum included international law as recently as 1925-26); 1 CHARLES WARREN,
HISTORY OF THE HARVARD LAW SCHOOL 303, 339, 355, 436-37 (1970). When the first
U.S. law schools were founded, many of the available legal materials were from
the British courts and treatise writers, and inertia may have been responsible
for their presence in the curriculum for some time. See 2 Warren
supra at 344 (reporting that in 1846-47 the Harvard "Catalogue stated:
"The course of Instruction for the bar embraces the various branches of Public
and Constitutional Law, Admiralty, Maritime, Equity and Common Law which are
common to all the United States, with occasional illustrations of Foreign
Jurisprudence"). By the middle of the nineteenth century, however, U.S.
materials were increasingly available. See 1 WARREN, supra, at 410
(noting advances in the creation of American legal literature, including
Chancellor Kent's Commentaries by 1830); WILLIAM P. LAPIANA, LOGIC AND
EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 59-60, 111 (1994)
(noting publication in 1870's of texts relying less on English precedents and
more on cases from American jurisdictions and works exposing fallacies born of
reliance on Roman legal concepts).
Compared to other parts of the curriculum,
international and comparative offerings and requirements appeared to be in
relative decline in the late nineteenth and early twentieth century at Harvard
Law School. See 2 WARREN, supra, at 411-12, 448 (displaying
tables, indicating that the curriculum in 1879-80 did not include comparative or
foreign law nor did first year classes in 1891-92 include civil law). By 1900,
Harvard's curriculum was "essentially professionally oriented," and was widely
emulated, with only a few "national schools [that] tried to be less professional
than Harvard by offering courses in such areas as international law, comparative
law and jurisprudence . . . . " ROBERT STEVENS, LAW SCHOOL:
LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 1980s, at 39 (1983); see
id. at 48 n.39, n.41 (reporting also that after 1899, international law was
offered at Harvard only "sporadically"); see also LAPIANA, supra,
at 129-30 (describing Harvard Law faculty's unwillingness to support University
of Chicago's desire to offer such "nonlegal" subjects as comparative politics,
European political theory and administrative law); cf. Brainerd Currie,
The Materials of Law Study, 3 J. LEGAL EDUC. 331, 363-67, 374-83 (1951)
(describing Harvard's influence in professionalizing study of law despite
efforts at, for instance, Columbia and Yale to revitalize connections between
law and other disciplines). According to Stevens, Harvard had the greatest
influence on other university-affiliated law school curricula during this time,
see id. at 35-72, and the standard "core curriculum" of the 1920s,
developed under Harvard's influence, included neither comparative nor
international law. See STEVENS, supra, at 41 n.49; but cf.
id. at 49 n.43 (noting that Yale offered second-year lectures on
international law, comparative jurisprudence, Roman law, ecclesiastical law and
political economy). Intellectual changes in the law also may have played a role
in the decline of comparative and international course requirements and
offerings relative to other parts of the legal curriculum. With the decline of
natural law and its more universal approach to law's content and the rise of
positivism as a basic jurisprudential outlook, it would not be surprising for
legal educators who view law as the command of a legitimate sovereign to believe
that law students should concentrate on the decisions and laws of their own
jurisdiction. Cf. LAPIANA, supra, at 77 (linking Austin's
positivism to Langdell's development of the case method).
As one moves on in
the twentieth century, the tremendous developments in public law and the rise of
"functionalism" and of legal realism, bore a complex relationship to law school
curricula in international and comparative public law. Stevens quotes a
description of law school curricula in the late 1940s as being "fairly well
standardized . . . [with] curricula . . .
fashioned largely around the subjects in which the graduates of the school must
be examined for admission to practice . . . ." Id. at
210 (quoting ABA Survey of the Legal Profession in late 1940s). In 1948 only 35
percent of AALS member schools offered courses in international law, see JOHN
KING GAMBLE, TEACHING INTERNATIONAL LAW IN THE 1990S 121 (1992), and a smaller
number appear to have offered comparative law, see Joseph Dainow, Teaching
Methods for Comparative Law, 3 J. LEGAL EDUC. 388, 395 (1951) (stating that
"as many as 26" law schools were then offering comparative law out of the then
107 AALS members reported by Warren Seavey, The Ass'n of American Law
School in Retrospect, 3 J. LEGAL EDUC. 153, 168 (1950)). Yet, in the
immediate post-World War II era, many law schools showed renewed interest in
courses on global issues, and in comparative law. See STEVENS,
supra, at 222 n.42 (noting postwar pressure at the larger schools for
emphasis on international and comparative law); see also GAMBLE,
supra, at 123 (noting that by the 1950s about 60 percent of law schools
had some provision for international offerings); LAURA KALMAN, LEGAL REALISM AT
YALE 1927-1960, at 154 (1986) (noting increased offerings in late 1940s in
public and international law at Yale as reflecting the interest of Yale legal
realists in social policy). As early as the 1920s, some legal realists at
Columbia had urged a "broad conception of jurisprudence as encompassing legal
philosophy, ancient law, legal history and comparative law," and expanded
electives in comparative law. See KALMAN, supra, at 72. In
1949-50, Columbia University adopted a plan that required students to take
minimum numbers of hours in five subject groups, requirements that included at
least two hours from a group including international and comparative law and the
legal profession. See STEVENS, supra, at 224 n.52. Harvard, in the
1950s, expanded its offerings in international law and comparative law.
See ARTHUR E. SUTHERLAND, THE LAW AT HARVARD: A HISTORY OF IDEAS AND MEN,
1817-1967, at 332-36 (1967). In the postwar period, McDougal and Lasswell
offered a course at Yale on "The World Community and Law," investigating "the
conditions under which the peoples of the world can be brought to a fuller
consciousness and understanding of their interdependence so that they would
reshape their institutions accordingly." KALMAN, supra, at 181. Yet, the
McDougal-Lasswell approach to law as policy science had less influence elsewhere
than might have been expected. See id. at 184-85; STEVENS, supra,
at 265-66.
[44] For a survey of international law teaching in the United
Stated and Canada in the early 1990s, and a description of other surveys of
international law offerings, see GAMBLE, supra note 43, at 1-37, 118-25,
134-39 (demonstrating long concern by internationalist scholars about offerings
and enrollments in international law courses, and showing that by early 1990s,
more than 95% of law schools had such offerings but that there had been much
less growth in the percentage of students enrolling in such courses, from 25% in
1912 to 45% in 1991). I am aware of no U.S. law school that currently requires
students to complete a course in comparative or international law to earn a J.D.
degree. According to the on-line course catalogues of the University of
California at Berkeley, University of Chicago, Columbia, Cornell, Duke,
Georgetown, Harvard, Michigan, New York University, the University of
Pennsylvania, Stanford, Virginia, and Yale, for instance, the schools offer many
courses in international and comparative law, but do not require study in those
fields. (A list of citations to these on-line catalogues as of March 9, 1999 is
on file with U. PA. J. CONST. L.). See also GAMBLE, supra note 43,
at 4, 22, 123 (stating that the "survey course in public international
law . . . is never required," in contrast to the year 1912, when
25 percent of U.S. law schools required a course in international law).
[45] See Rehnquist, supra note 12, at 411-12.
[46] In evaluating Rehnquist's analysis, bear in mind that by the
1880's the Canadian Supreme Court and the Privy Council in London were issuing
decisions interpreting the power-allocating clauses of the British North America
Act [BNA], the first Canadian constitution, adopted in 1867. By 1949, Canada's
Supreme Court was exercising final jurisdiction over questions arising under the
BNA, an Act that largely addressed allocations of power between the national and
provincial governments, but which also addressed some minority religious and
linguistic issues. See DALE GIBSON, THE LAW OF THE CHARTER: GENERAL
PRINCIPLES 6-8 (1986); RICHARD E. JOHNSTON, THE EFFECT OF JUDICIAL REVIEW ON
FEDERAL-STATE RELATIONS IN AUSTRALIA, CANADA AND THE UNITED STATES (1969).
Moreover, Australia began generating constitutional decisions on federalism
issues in the early years of this century. For evidence of academic attention to
Australia's early constitutional developments, see Charles Grone Haines,
Judicial Interpretation of the Constitution Act of Australia, 30 HARV. L.
REV. 597 (1917). In the 1930s and 1940s, Justice Frankfurter referred to
Canadian and Australian decisions in cases involving intergovernmental
immunities. See supra note 4 (discussing Frankfurter's dissenting
and concurring opinions in U.S. v. Allegheny and Graves v. New
York ex rel. O'Keefe, respectively). It thus seems overly simple to
suggest that it has not been until recently that there was a sufficient body of
constitutional decisions from other courts that could have been helpful to U.S.
courts.
However, whether the federal systems of these three countries are so
analogous that decisions in one system bear directly on the correct
result in another, as Frankfurter suggested, see supra note 4,
is somewhat doubtful. While all three nations were designed to have federal
systems, Canada's federation was designed, in the heat of the U.S. Civil War, to
establish a stronger national government than that of the United States, an
intention clearly frustrated by decisions, led by the Privy Council,
substantially restricting the scope of national power. See generally,
PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 97-112 (3d ed. 1992) [hereinafter
HOGG, CONSTITUTIONAL LAW OF CANADA]. Although Australia's federalist
arrangements were more closely modeled on those of the United States, the
specific constitutional allocations of power to the federal and provincial
governments in both Canada and Australia differ from those of the U.S.
Constitution in some significant ways. Canada, for example, allocates criminal
law entirely to its national legislative competence. See CAN. CONST.
(Constitution Act 1867) pt. VI ?91(27). In Australia, the national government
has power to make laws for marriage, divorce and custody. See AUSTL.
CONST. ACT ?51 (xxi), (xxii). Yet, in Canada, Australia, and the United States
there are more general issues of federalism in constitutional adjudication, on
which wisdom is not likely to be localized exclusively in one country's
jurisprudence. For instance, on whether enumerated federal powers should be
construed broadly in favor of strong central power, or more narrowly in order to
preserve realms of provincial or state power, compare Attorney Gen. for Ont.
v. Attorney Gen. for Can. [1896] A.C. 348 (Privy Council reverses Canadian
Supreme Court to hold that federal power to "regulate" trade did not include
power to "prohibit" trade) and Rex v. Barger (1908) 6 C.L.R. 41, 78
(implied prohibition doctrine in Australia) with United States v. Darby,
312 U.S. 100 (1941) (holding that power to regulate commerce includes power to
prohibit) and Missouri v. Holland, 252 U.S. 416, 433-34 (1920)
(dismissing "invisible radiations" from powers reserved to states as constraints
on federal treaty power). Having said all this, Chief Justice Rehnquist's point
about the rapid development of constitutional law since World War II in other
nations is widely shared. See MAURO CAPPELLETTI & WILLIAM COHEN,
COMPARATIVE CONSTITUTIONAL LAW 13-16 (1979) (noting the explosive growth of
constitutions and judicial review since World War II).
[47] Thus, for example, decisions of the French Conseil
Constitutionnel, even when translated, are sometimes difficult for those
accustomed to U.S. opinions to understand, with terse paragraphs succeeding each
other in a not always easy to follow narrative. For discussion of French
judicial discourse, see Mitchel de S.-O.- l'E. Lasser, `Lit Theory' Put to
the Test: A Comparative Literary Analysis of American Judicial Tests and French
Judicial Discourse, 111 HARV. L. REV. 689 (1998); Mitchel de S.-O.-l'E.
Lasser, Judicial (Self-) Portraits: Judicial Discourse in the French Legal
System, 104 YALE L. J. 1325 (1995). Reliance on treatises by legal scholars
is far more common in European systems and thus the materials of comparison and
discussion themselves appear unfamiliar. For a recent example of the attitude of
some U.S. judges to treatises and law review articles, see Dolan v. City of
Tigard, 512 U.S. 374, 392 (1994) (noting in a tone of implicit criticism
that "Justice Stevens' dissent relies upon a law review article for" a certain
proposition).
[48] A LEXIS search for law review articles referring to the key
language in Section 1 of the Canadian Charter ("demonstrably justified in a free
and democratic society") from 1990 through 1997 yielded 69 articles in U.S. law
journals. A LEXIS search of U.S. Supreme Court opinions for references to the
Canadian Supreme Court yielded 21 cases (not counting one disbarment petition),
of which seven were decided after 1980; only one of these, Washington v.
Glucksberg, 521 U.S. 702 (1997), involved reference to the Canadian
Supreme Court's decisions in a majority opinion on a constitutional issue.
[49] My sense is that in the last ten years, there has been an
increase in U.S. judges' travel abroad to meet with their counterparts, and
likewise a substantial influx in the other direction, fueled in some measure by
the emergence of new regimes in Eastern and Central Europe and the
constitutional revolution in South Africa. Review by the author of financial
disclosure statements of the U.S. Supreme Court justices between 1992-97
(available on request through the Administrative Office of the U.S. courts)
reveals that most of the justices reported reimbursement for some international
travel for educational purposes during this time period, and several justices
report regular international trips for educational purposes in the summer. As
further evidence of increasing opportunities for judicial interchange, consider
the following examples. In October, 1994, the U.S. Judicial Conference
established a permanent Committee on International Judicial Relations, designed
to review and assist exchange programs offered to representative foreign legal
systems and their counterparts in the United States. See Reports of the
Proceedings of the Judicial Conference of the United States, Judicial Conference
Comm. on Int'l Judicial Relations 36, 60 (Sept. 20, 1993); see also
Report of the Ad Hoc Comm. on Int'l Judicial Relations 4-5 (Sept. 1993) (in
recommending that committee become permanent, notes interest in international
judicial relations and judicial interest in "education on civil law systems of
justice and on the interaction between federal jurisprudence and international
treaties and conventions"). In June, 1995, the First Worldwide Common Law
Judiciary Conference was held in Williamsburg, Virginia and Washington D.C.
See Justices, Judges from Common Law Countries Meet in Williamsburg and
Washington, INT'L JUDICIAL OBSERVER, September, 1995, at 1. The second such
conference was held in May, 1997, in Washington, D.C., and included U.S. federal
judges and representatives from ten common law nations. See Judges from Ten
Common Law Countries Meet in Washington for Five Day Conference, INT'L
JUDICIAL OBSERVER, June, 1997, at 1. In October, 1995, the Organization of
Supreme Courts of the Americas was created as a permanent institutional link
between the judiciaries of the Americas, with a focus on judicial education.
See Justices, Judges from Across Western Hemisphere Assemble, Create
Charter for New Organization of Supreme Courts, INT'L JUDICIAL OBSERVER,
January, 1997, at 1. And the Fourth International Judicial Conferences for
Justices of Supreme Courts and Constitutional Courts was held in 1996 at the
Federal Judicial Center in Washington, D.C. See Major Int'l Jud. Conf.
to Meet in Washinton, INT'L JUD. OBSERVER, Sept. 1996, at 1.
[50] See 521 U.S. 898, 976-78 (1997) (Breyer, J.
dissenting).
[51] For a thoughtful theoretical elaboration, see Mark Tushnet,
Returning With Interest: Observations on Some Putative Benefits of Studying
Constitutional Law, 1 U. PA. J. CONST. L. 325 (1998).
[52] In Germany subnational administration of federal laws is
understood as one of the rights of the L鋘der and as part of a relationship of
trust among the federal and subnational governments; in the United States, it is
perceived as a federal imposition on the states. See sources cited
infra note 53.
[53] See generally DONALD KOMMERS, THE CONSTITUTIONAL
JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 69-75, 82-83, 96-102 (2d ed.
1997); DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY
61-66 (1994). Note that unlike members of the U.S. Senate, who are popularly
elected to that position, the members of the Bundesrat are representatives of
the l鋘der governments. The German Basic Law also contemplates "financial
equalization" laws (with the consent of the Bundesrat), designed to "ensure a
reasonable equalization of the financial disparity of the l鋘der, due account
being taken of the financial capacity and requirements of the
municipalities . . . ." BASIC LAW FOR THE FEDERAL REPUBLIC
OF GERMANY, Art. 107 (d) (Official translation revised March 1995). The Basic
Law specifies that eligible L鋘der are those "whose per capita revenue from Land
taxes and from income and corporation tax is below the average of all the L鋘der
combined." Id. at Art. 107(1). These features, as well, may affect
evaluation of the significance of the role of l鋘der administration of federal
law in Germany.
[54] In light of distinctive features of each system, similar
questions could be raised about the relevance of Canadian or Australian
federalism decisions. For example, in neither Australia nor Canada did the
states or provinces (at least through mid century) preserve as much autonomy and
power to raise their own taxes as did those of the United States, but rather
relied on negotiated payments from the federal government to provide the
subnational units with real budgets. See generally JOHNSTON, supra
note 46, at 119-57. There may be reciprocal relationships between greater
national power over taxes and more restrictive interpretations of regulatory
powers that ought to caution against ready borrowing of doctrine concerning the
latter in a system that has preserved more fiscal autonomy to its subnational
units.
[55] The obvious connection between chronology and originalist
interpretation is that the farther away from original drafting one is, the less
consensus, the less in the way of shared understandings will exist about what
was and was not meant, and the more there will be to argue about. For
elaboration of this, and other less obvious connections, see Eivind Smith,
Introduction to CONSTITUTIONAL JUSTICE UNDER OLD CONSTITUTIONS (Eivind
Smith, ed. 1995) and other essays in this collection, especially those by
Francis Delp閞閑, Frank Michelman, and Michel Troper.
[56] See, e.g., 1975 German Abortion Decision, translated
in DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC
OF GERMANY 349 (1989) (analyzing abortion issue in light of fundamental value of
protection of human life). Cf. Roe v. Wade, 410 U.S. 113 (1973)
(analyzing abortion in light of history, practice and precedent).
[57] In part this may be due to the common law feature of
constitutional adjudication so aptly described in David Strauss, Common Law
Constitutional Adjudication, 63 U. CHI. L. REV. 877 (1996).
[58] See JOHNSTON, supra note 46, at 239 (arguing
that earlier interpretations of the BNA by the Canadian Supreme Court were more
receptive to national power than those of the Privy Council because "members of
the early Court were judges for whom federation had been a personal experience,
and they knew well the purposes for which the union had been consummated").
See also Patrick J. Monahan, The Charter Then and Now, in
PROTECTING RIGHTS AND FREEDOMS 105 (Philip Bryden, et. al., eds., 1994)
(arguing that public debate and lobbying over the Canadian Charter in the period
1980-82 had effect of sending message to judges to take the document seriously
as a constraint on legislative action).
[59] Compare DON STUART, CHARTER JUSTICE IN CANADIAN
CRIMINAL LAW 18-19 (2d ed. 1996) (criticizing inconsistency and laxness of the
Canadian Court's recent decisions applying the proportionality test as a cause
for concern) and Jamie Cameron, The Past, Present, and Future of
Expressive Freedom Under the Charter, 35 OSGOODE HALL L. J. 1, 55, 67 (1997)
(criticizing subjectivity of Canadian Court's section 1 analysis in free
expression cases and arguing for a return to fundamental assumption of
Oakes that any infringement of Charter rights must be taken seriously
under Section 1) with Monahan, supra note 58, at 117 (praising the
Court's approach as deferential and "resist[ing] the temptation to install
itself as a kind of `super legislature'") and Pierre Blache, The
Criteria of Justification under Oakes: Too Much Severity Generated
Through Formalism, 20 MANITOBA L.J. 437, 438, 450 (1991) (arguing that the
Court has engaged in "prudent revisionism" of the Oakes test and is
better in moving towards more open balancing).
[60] See David Beatty, Law and Politics, 44 AM. J.
COMP. L. 131 (1996) (arguing that constitutional scholars in many countries
perceive a tension between popular sovereignty and judicial enforcement of
entrenched rights). Some qualified praise emerges in the Canadian literature for
the Court's steering a middle course between these two (at times) contradictory
values. See, e.g., Andr閑 LaJoie and Henry Quillinan, The Supreme Court
Judges' Views of the Role of the Courts in the Application of the Charter,
in PROTECTING RIGHTS AND FREEDOMS, supra note 58, at 101
(suggesting that the role of the Chief Judge in applying proportionality review
under section 1 of Charter is to maintain formal appearance of unified,
objective approach to Charter interpretation even in the face of different
interpretations of facts).
[61] See Mark Tushnet, The Possibility of Comparative
Constitutional Law, 108 YALE L.J. 1225 (1999) for a discussion of a number
of other possible benefits of comparative constitutional study.
[62] The "we" here refers to those who purport to speak with
authority or power on the character and content of U.S. constitutional law
(whether judges, legislators, lawyers, teachers, students or citizens.
[63] Compare Fong Yue Ting v. United States, 149 U.S. 698,
711 (1893) (implicitly comparing the powers of other nations by holding that it
is an "inherent and inalienable right of every sovereign and independent nation"
to exclude or expel aliens) with id. at 737 (Brewer, J.
dissenting) ("governments of other nations have elastic powers - ours is fixed
and bounded by a written constitution") and id. at 757-58 (Field, J.
dissenting) (arguing that the United States "takes nothing" from the cruel and
barbaric practices of Europe).
[64] To elaborate one of these examples: In the recent controversy
concerning the possible impeachment of President Clinton, some have advanced
arguments that part of the reason why the standard for impeachment needs to be
very high is because the U.S. system is not one of parliamentary governance. The
comparison may be illuminating, but it is also more complex than may at first
appear. The first level of analysis would note that in a parliamentary system,
if the Prime Minister does not survive a confidence vote, new elections are
required and the people then have the chance to express their will at the polls.
Under the U.S. presidential system, by contrast, elections are held at the end
of fixed 4 year terms, which the elected President serves out unless he is found
to have committed an impeachable offense. If the President is removed from
office by impeachment, there are no new elections held but the office is taken
over by someone elected or appointed to a different position. The
anti-democratic possibilities of impeachment, therefore, argue for a high
standard for defining impeachable offenses. Second, note that in a parliamentary
system with two or three strong political parties, the Prime Minister will have
the support of a majority party in the elected assembly, and thus may be less
likely to develop the kind of conflict with that body that is more common in a
presidential system, where a President may be from one party and the Congress
dominated by another. If a President has lost the confidence of a majority of
the Congress and the people, without some means to remove him from office, the
country could be hobbled in its governance. Some might argue, then, that the
standard of impeachment should not be set at so high a level as to make
impossible effective governance. Third, note the importance of understanding the
consequences of different structures of executive-legislative relations and the
number and nature of political parties active on the national scene. Within the
limits of a footnote the point is only that comparisons can be illuminating but
are very complex.
[65] For an introduction to the literature on constitutional
interpretation, see GEOFFREY R. STONE ET. AL., CONSTITUTIONAL LAW 37-46, 785-95
(3d ed., 1996).
[66] See ERNEST WALLWORK, PSYCHOANALYSIS AND ETHICS 64-65
(1991) ("Freud's therapeutic goal was to make . . . unconscious
hidden meanings `articulate'" to increase patient's freedom).
[67] Thus, as noted earlier, when Justice Frankfurter invoked the
similarity in federal structure of Canada and Australia to the United States, he
may well have been in error. See supra notes 4 and 46 discussing
Justice Frankfurter's reliance on Australian and Canadian decisions on
intergovernmental tax issues and the possible inaccuracy of his assumption of
similarity). Moreover, as I discuss below, the Breyer-Scalia interchange in
Printz v. United States, 521 U.S. 898 (1997) suggests the
importance of broad knowledge of other systems, as well as of their particular
structures, for evaluating the "transplantability" of practices from elsewhere;
it also suggests the importance of understanding the context of which such
practices are always only a part. See supra notes 52-54 and accompanying
text.
[68] See City of Boerne v. Flores, 521 U.S. 507 (1997)
(holding that exercises of Congress's power under Section 5 of the Fourteenth
Amendment must be proportional to constitutional violations sought to be
prevented or remedied); Dolan v. City of Tigard, 512 U.S. 374, 388-91 (1994)
(holding that, where the nature and costs of a condition for permission to make
changes to real property are not roughly proportional to the nature and impact
of the change proposed, an unconstitutional "taking" of property may be
found).
[69] See Flores, 521 U.S. at 518. Section 5
authorizes Congress by all appropriate measures to enforce the provisions of
Section 1 of the Fourteenth Amendment, including its guarantee of equal
protection and due process. Acting under Section 5, Congress has, for example,
enacted the Voting Rights Act of 1965, upheld in South Carolina v.
Katzenbach, 383 U.S. 301 (1966). For discussion of the statute at issue in
Flores, see infra text accompanying notes 184-88.
[70] See Flores, 521 U.S. at 544 (O'Connor, J.,
dissenting) (agreeing with the majority that scope of Congress's Section 5
powers turn on congruence and proportionality between injury to be prevented or
remedied and means adopted to that end, but arguing that Smith v.
Employment Division, 494 U.S. 872 (1990), was wrongly decided); see
id. at 565 (Souter, J., dissenting) (arguing that, in light of doubts about
the Smith, the case should be reargued). The closest any member of the
Court came to questioning the proportionality test, albeit implicitly, was a
short, cryptic dissenting opinion by Justice Breyer. See id. at 566
(Breyer, J., dissenting) (noting that he joined all but one paragraph of Justice
O'Connor's dissent -- the paragraph summarized in the parenthetical above -- and
reserving his own views on the proper method of Section 5 analysis).
[71] See David Cole, The Value of Seeing Things
Differently, 1997 SUP. CT. REV. 31, 47 (noting that proportionality
standards "provide little if any principled guidance"); John T. Noonan, Jr.,
Religious Liberty at Stake, 84 VA. L. REV. 459, 470-71 (1998)
(criticizing proportionality test as "extraordinary," unsupported by precedent
and inconsistent with McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 421
(1819), which should serve as a guide to Congress's general powers). For other
critiques of Flores' proportionality standard, see Douglas Laycock,
Conceptual Gulfs in City of Boerne v. Flores, 39 WM & MARY L. REV.
743, 770-71 (1998); Michael W. McConnell, Comment: Institutions and
Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV.
153, 166-67 (1997) [hereinafter McConnell, Institutions and
Interpretation]. For more favorable treatment of Flores'
proportionality analysis, see, e.g., David P. Currie, RFRA, 39
WM & MARY L. REV. 637, 640 (1998) ("In demanding a congruence and
proportionality between the injury to be prevented or remedied and the means
adopted to that end, the Court in Flores set forth an attractive test
that it would no longer blindly accept untenable congressional pretenses that a
particular measure was `appropriate' to enforce the Civil War amendments or
`necessary and proper' to protect interstate and foreign commerce") (internal
citation omitted); Marci Hamilton, City of Boerne v. Flores, A Landmark for
Structural Analysis, 39 WM & MARY L. REV. 699, 712-14 (1998).
[72] Nor is it surprising that scholars have noted the apparently
increased rigor of proportionality review of congressional action as compared
with earlier test of mere "rationality," and disagreed whether this is a good
thing. See, e.g., McConnell, Institutions and Interpretation,
supra note 71, at 166-67 (describing proportionality and congruence as
more stringent than approach epitomized in Katzenbach v. Morgan, 384 U.S.
641, 653 (1966)); Stephen Gardbaum, The Federalism Implications of
Flores, 39 WM & MARY L. REV. 665, 677 n.52 (1998) ("The Flores
majority . . . presumed . . . that Congress
enacted RFRA with the legitimate aim of enforcing the Free Exercise clause as
interpreted in Smith and employed the proportionality test to determine
whether the means - imposing the compelling interest standard on the states -
were properly related to it."); Hamilton, supra note 71, at 712-14
(approving proportionality test as one designed to make Congress perform its
duties reasonably well); Laycock, supra note 71, at 770-71 (criticizing
proportionality test for allowing judicial "second-guessing of [questions of]
degree in the interpretation of its delegated powers").
[73] See Harmelin v. Michigan, 501 U.S. 957 (1991) ("We
conclude [that] the Eighth Amendment contains no proportionality
guarantee.").
[74] See William Stuntz, Criminal Procedure and Criminal
Justice, 107 YALE L.J. 1, 72-73 (1997) ("The prohibition of cruel and
unusual punishments could plausibly be read to imply a proportionality principle
for sentencing . . . .").
[75] See, e.g., BECCARIA, OF CRIMES AND PUNISHMENTS SECTION
23 (1764), translated by Jane Grugson (1996) (asserting that punishments should
be graded to correspond with the gravity of the crime); see also H.L.A.
Hart, Prolegomenon to the Principles of Punishment, in PUNISHMENT
AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 1, 14-15 (1968) (arguing a
utilitarian view that punishment should be distributed, in part, in proportion
to the severity of the offense). Early U.S. state constitutions included
provisions requiring that penalties be "proportioned to the nature of the
offense." See, e.g., N.H. CONST. of 1783 (cited in ANDREW VON
HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 67 (1976)).
[76] See Stuntz, supra note 74, at 73.
[77] Id.; see also Noonan, supra note 71, at 470-71
("Proportion is not a criterion. It is hard to see how proportion would work as
a criterion for civil legislation. It is difficult to see how proportion worked
in Boerne."). But cf. Stone v. Powell, 428 U.S. 465, 490 (1976)
(arguing that disparity between Fourth Amendment errors of police and windfall
to guilty defendant of excluding evidence "is contrary to the idea of
proportionality that is essential to the concept of justice"). Note that
Flores is not the first use of "proportionality" as a measure of
legislative power in the 1990s. See, Dolan v. City of Tigard, 512 U.S.
374, 391 (1994) (holding that standard of "rough proportionality" between the
costs of the activity for which a permit is sought, and the benefits conferred
by the permit should be used to determine whether a regulatory condition
constitutes a governmental "taking" requiring just compensation).
[78] For a very different evaluation of proportionality principles
in the public law of Germany, France and the European Union, see NICHOLAS
EMILIOU, THE PRINCIPLE OF PROPORTIONALITY IN EUROPEAN LAW: A COMPARATIVE STUDY 1
(1996) ("Proportionality embodies a basic concept of fairness which has
strengthened the protection of individual rights at both the national and
supranational level." ); see also DAVID BEATTY, CONSTITUTIONAL LAW IN
THEORY AND PRACTICE (1995) (arguing that all constitutional principles,
transnationally, can be understood as elaboration of the core principles of
rationality and proportionality).
[79] Canadian cases can be accessed through LEXIS under the
library name "Canada."
[80] See infra text accompanying notes 88-105.
[81] See EMILIOU, supra note 78, at 134 (stating
that between 1955 and late 1994, "proportionality" had been argued by
litigants or invoked by the European Court of Justice in over 500 hundred
cases).
[82] See supra note 75. For state constitutions that
continue to require that penalties be proportional to the nature of the offense,
see IND. CONST. art. I, ?16 (Bill of Rights) (1998); ME. CONST. art. 1, ?9
(1998); NEB. CONST. art. I, ?15 (1997); N.H. CONST. pt I, art. 18 (1997); OREGON
CONST. art. I, ?16 (1997).
[83] Rigorous versions of proportionality tests bear some
resemblance to the requirement of "compelling state interest" tests in equal
protection analysis, see, e.g., United States v. Paradise, 480
U.S. 149 (1987) (upholding race-conscious remedial order that fifty percent of
promotions go to black officers, on grounds that the remedy was "narrowly
tailored" to serve a "compelling government purpose" in light of the
ineffectiveness of alternatives, flexibility and limited duration of the relief,
and its limited adverse impact on third parties), and the standard for upholding
discriminatory state regulation of commerce, see Maine v. Taylor, 477
U.S. 131 (1986) (upholding facially discriminatory ban on imported live baitfish
because danger to native fish populations was genuine and there was no less
discriminatory alternative for screening potentially diseased baitfish). See
also Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (invalidating as
unduly burdensome on First Amendment rights a state law requiring independent
candidates to file for November ballot in March and stating that court must
determine "legitimacy and strength" of state's asserted justifications and "must
also consider the extent to which those [state] interests make it necessary to
burden" plaintiffs' rights). The "narrow tailoring" requirement is at times
articulated as part of the Canadian proportionality test, embodying the idea
that when a fundamentally important right is at issue, intrusions on the
exercise of that right must be proportioned both to the end being served and the
harm being caused. See, e.g., Thomson Newspapers v. Canada, 1998 DLR
Lexis 399 (Supreme Court May 19, 1998) (finding unconstitutional a law requiring
a news blackout of reporting on any opinion polls within three days of
election as not narrowly tailored to achieve purpose of preventing reporting of
new polls without time for reflection and response).
[84] See CAN. CONST. (Constitution Act, 1982) pt. I
(Canadian Charter of Rights and Freedoms).
[85] Id. at ?1.
[86] See R. v. Oakes [1986] 1 S.C.R. 103, 114.
[87] See, e.g., Prostitution Reference Case [1990] 1 S.C.R.
1123 (holding that solicitation of prostitution is a form of freedom of
expression under Charter Section 2(b) infringed upon by a criminal prohibition
of soliciting, yet upholding the prohibition as reasonable and justified under
Section 1); R. v. Skinner [1990] 1 S.C.R. 1235 (same). For a critique of this
kind of approach, see Peter W. Hogg, Interpreting the Charter of Rights:
Generosity and Justification, 28 OSGOODE HALL L. J. 817 (1990) (arguing that
a broad interpretation of rights cannot coexist with stringent standards of
justification and favoring narrow rights interpretation) [hereinafter Hogg,
Interpreting the Charter of Rights].
[88] As Justice Dickson explained in Oakes, 1 S.C.R. at
138, this "standard must be high in order to ensure that objectives which are
trivial or discordant with the principles integral to a free and democratic
society do not gain section 1 protection. It is necessary, at a minimum, that an
objective relate to concerns which are pressing and substantial in a free
and democratic society before it can be characterized as sufficiently
important." (emphasis added).
[89] In Oakes, the Court used language that seemed to
invite a "least restrictive alternative" standard of great severity. Critics
noted how difficult it can be to meet that standard, given the creativity of
courts and lawyers in finding such alternatives. Within the year, however, the
apparent rigidity of the initial articulation was modulated in an opinion joined
by the author of Oakes. See R. v. Edward Books and Art, Ltd.
[1986] 2 S.C.R. 713, 772 (characterizing the inquiry as whether it impairs
freedoms as little as reasonably possible); Pamela A. Chapman, The Politics
of Judging: Section 1 of the Charter of Rights and Freedoms, 24 OSGOODE HALL
L. J. 867, 886, 889-90 (1987) (describing Edwards Books as a substantial
softening of the Oakes standard).
[90] See Oakes [1986] 1 S.C.R. at 139. The test was
foreshadowed in a brief paragraph in Justice Dickson's opinion in R. v. Big
M. Drug Mart [1985] 1 S.C.R. 295, but was fully articulated in Oakes.
Justice Dickson also noted that applying the proportionality test "will vary
depending on the circumstances," and that "in each case courts will be required
to balance the interests of society with those of individuals and groups."
Oakes, 1 S.C.R. at 138-39.
[91] See Oakes, 1 S.C.R. at 138-39.
[92] See William E. Conklin, Interpreting and Applying
the Limitations Clause: An Analysis of Section 1, 1982, 4 SUP. CT. L. REV.
75, 75, 87 (1982).
[93] See R. v. Morgentaler [1988] 1 S.C.R. 30.
[94] See RJR MacDonald, Inc. v. Canada [1995] 3 S.C.R.
199.
[95] See R. v. Keegstra [1990] 3 S.C.R. 697. See
also R. v. Butler [1992] 1 S.C.R. 452, 482, 494, 509 (sustaining pornography
ban on publication whose "dominant characteristic . . . is the
undue exploitation of sex").
[96] See McKinney v. University of Guelph [1990] 3 S.C.R.
229 (finding that mandatory retirement ages were discriminatory under Section 15
but justified under Section 1).
[97] See Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927
(upholding, under Section 1, a ban on advertising directed at children under 13,
despite its infringement upon Section 2 rights).
[98] See R. v. Edwards Books and Art [1986] 2 S.C.R. 573,
713 (upholding Sunday-closing law under Section 1, despite fact that it limited
freedom of religion).
[99] Compare STUART, supra note 59, at 18
(criticizing Court's inconsistency); Cameron, supra note 59, at 5
(criticizing Court's subjectivity); and Christopher M. Dassios
& Clifton P. Prophet, Charter Section 1: The Decline of Grand Unified
Theory and the Trend Towards Deference in the Supreme Court of Canada, 15
ADVOCS' Q. 289, 306 (1993) (arguing that review of proportionality of effects
and objectives "pushes at the margins of the judiciary's institutional role" and
calls into question legitimacy of constitutional review) with Martha
Jackman, Protecting Rights and Promoting Democracy: Judicial Review Under
Section 1 of the Charter, 34 OSGOODE HALL L. J. 661, 674 (1996) (praising
majority and dissenting opinions in RJR-MacDonald commercial speech case
for addressing democratic legitimacy of rights-infringing legislation); Monahan,
supra note 58, at 107, 114 (praising moderation of court and its
deference to legislative decisions); Andrew Lokan, The Rise and Fall of
Doctrine Under Section 1 of the Charter, 24 OTTAWA L. REV. 163, 190-92
(1992) (praising the Canadian Court's abandonment of formal doctrine in favor of
a more categorical U.S.-style approach producing a more coherent approach that
exposes the role of normative judgments in judicial decision making) and
Blache, supra note 59, at 450 (praising court for move toward more
open balancing).
[100] See, e.g., STUART, supra note 59, at
18; Monahan, supra note 58, at 107-114.
[101] See, e.g., R. v. Keegstra [1990] 3 S.C.R. 697
discussed infra text accompanying notes 118-51.
[102] Monahan, supra note 58, at 107, 118.
[103] Blache, supra note 59, at 438.
[104] STUART, supra note 59, at 18.
[105] Some argue that the third criteria (proportionality of
effects) itself never matters under the Oakes test, because prior
criteria (sufficiently important purpose, rational connection and minimal
impairments) preclude it from having independent force. See, e.g., HOGG,
CONSTITUTIONAL LAW OF CANADA, supra note 46, at 882-83; Lokan,
supra note 99, at 172. The Canadian cases suggest, however, that the
overarching concept of proportionality between the means used to achieve a
legislative purpose, and both their positive effects in achieving that purpose
and their negative effects on protected rights, has become an important part of
the overall application of the Oakes test. This is well-illustrated in
Dickson's opinion in Keegstra, discussed infra text accompanying
notes 127-51.
[106] See Oakes, at 138 (objective must be
"pressing and substantial in a free and democratic society").
[107] Compare, for instance, General Motors Corp. v.
Tracy, 519 U.S. 278, 312 (1997) (holding that a state has a legitimate
interest in safety served by differential scheme for taxing natural gas
products) with Romer v. Evans, 517 U.S. 620 (1996) (noting that the
"desire to harm a politically unpopular group" cannot constitute a legitimate
governmental interest). This is not to say that the Court finds these judgments
easy, or always agrees on the methodology for identifying the purpose of a
challenged law. See, e.g., Washington v. Davis, 426 U.S. 229, 240-41
(1976) (in holding that the Equal Protection Clause does not condemn
neutrally-motivated action that has a disproportionate impact on racial
minorities, Court notes that such disproportionate impact may be evidence of
invidious purpose). Compare Justice Powell's opinion in Kassel v.
Consolidated Freightways Corp., 450 U.S. 662, 670-74 (1981), concluding that
a purported safety regulation was unconstitutionally burdensome on interstate
commerce, with Justice Brennan's concurring opinion, rejecting the purported
safety justification as an after the fact rationalization. See id. at
679-87.
[108] Compare, for instance, Justice LaForest's view of the
purpose of the law in RJR MacDonald v. Canada [1995] 3
S.C.R. 199, 272-73 (diminish tobacco consumption) with the prevailing justices'
view (discourage new smokers from starting to smoke by "reducing
advertising-related consumption"). See id. at 335-36 (McLachlin, J.). The
narrower definition of the purpose led to a finding that a ban on all
advertising was disproportional, since a ban on the type of advertising targeted
at new smokers would suffice, and advertising directed at existing smokers and
encouraging them to change brands would not rationally and proportionally relate
to that more narrowly-defined goal. See id.
[109] See Elena Kagan, Private Speech, Public Purpose:
The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L.
REV 415, 447-53 (1996) (characterizing First Amendment cases disfavoring
content-based regulation as concerned with improper government purpose). See
also United States v. O'Brien, 391 U.S. 367, 376 (1968) (when speech and
nonspeech elements combine in single course of conduct, "a sufficiently
important governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms"); Hunt v. Washington State
Apple Advertising Comm'n, 432 U.S. 333, 352-53 (1977) (discussing evidence of
state's impermissibly protectionist motive in dormant Commerce Clause
constitutional challenge to apple-labeling law).
[110] See generally, Note, Invidious Legislative
Purpose, Rationality, and Equal Protection, 82 YALE L. J. 123, 137-38 (1972)
(arguing that "it is always possible for a court to define the evil or the good
at which legislation is aimed so as to make the statutory classification too
broad or too narrow for achieving the purpose thus defined").
[111] See, e.g., Craig v. Boren, 429 U.S. 190, 202 (1976)
(finding that the minor statistical difference between drunk driving by young
men and young women was too "tenuous [a] fit" to justify a different drinking
age). See generally STONE ET. AL., supra note 65, at 567-68
(discussing means/ends nexus in equal protection analysis). On procedural due
process, consider Mathews v. Eldridge, 424 U.S. 319, 332-50 (1976), which
offered a balancing test to determine what procedures are required in
administrative contexts, including the nature of the private interest to be
affected, the risks of error and benefit of added procedures in reducing error,
and the government interests in proceeding as it has been. One could conceive of
Mathews as involving a decision that the procedures required by the
Constitution are no more than are proportional to the interests at stake in
light of the risks of error.
[112] See, e.g., Ward v. Rock Against Racism, 491 U.S.
781, 796-802 (1989) (upholding requirement that performers use city-owned
equipment in light of city's interest in noise control and availability of other
means of communication; regulation of time, place and manner of protected speech
must be narrowly tailored but need not be least intrusive means; protected
speech may not be burdened more than necessary to further legitimate government
interest); Central Hudson Gas and Electric Corp. v. Public Service Comm'n, 447
U.S. 557, 565 (1980) (requiring that restrictions on commercial speech be no
broader than necessary to accomplish state's interest); O'Brien, 391 U.S.
at 377 (upholding ban on draft card burning because government interest in
maintaining effective draft was sufficiently important to justify incidental
restrictions on First Amendment freedom of expressive conduct). See also
44 Liquormart Inc. v. Rhode Island, 517 U.S. 484, 529-30 (1996) (O'Connor, J.
concurring) (arguing that ban on advertising beer prices failed the "final
prong" of Central Hudson because the ban "is more extensive than
necessary to serve the State's interest" and the "fit between Rhode Island's
method and [its] goal is not reasonable"). For one Canadian writer's suggestion
that the Oakes test is similar to O'Brien, see Lokan, supra
note 99, at 174.
[113] See also BEATTY, supra note 78, at 107
(arguing that all important doctrines of U.S. constitutional law concerning
individual rights rely on standards of rationality and proportionality to
conduct means-end and equaling analyses). Unlike Beatty, I do not claim that
proportionality is a basic source of all constitutional doctrine, only that,
even if the word itself is unfamiliar, the concept as it is used in the Canadian
cases is not. For a critique of Beatty's universalistic and approving approach
to judicial enforcement of constitutional rights, see Richard F. Devlin, Some
Recent Developments in Canadian Constitutional Theory With Particular Reference
to Beatty and Hutchinson, 22 QUEEN'S L. J. 81 (1996); see also ALLAN
HUTCHINSON, WAITING FOR CORAF: A CRITIQUE OF LAW AND RIGHTS 66-75 (1995)
(criticizing Beatty's faith in his own account of the Charter).
[114] See Alan Watson, Legal Change: Sources of Law and
Legal Culture, 131 U. PA. L. REV. 1121, 1124 (1983) (describing the extent
of "legal transplants" and arguing that "[b]orrowing from another system is the
most common form of legal change").
[115] The so-called "contextual approach" is anticipated in R.
v. Oakes [1986] 1 S.C.R. 103, 139 (Dickson, C.J.) ("the nature of the
proportionality test will vary depending on the circumstances") and was more
fully developed by Justice Wilson in her concurrence Edmonton Journal v.
Alberta [A.G.] [1989] 2 S.C.R. 1326, 1353, 1355-56 and by Justice McLachlin
in Rocket v. Royal College of Dental Surgeons of Onterio [1990] 2 S.C.R.
232, 246-47. It was adopted by the Canadian Court in R. v. Keegstra
[1990] 3 S.C.R. 697, 737, 760-61 (concluding, inter alia, that the
Section 1 analysis of a limit on Section 2(b) protected freedom of expression
"cannot ignore the nature of the expressive activity which the state seeks to
restrict" and noting the "importance of context in evaluating expressive
activity under" Section 1).
[116] See, e.g., R. v. Keegstra [1990] 3 S.C.R. 377, 738-44
(Dickson, C.J.) (discussing U.S. First Amendment case law); id. at 811-23
(McLachlin, J., dissenting) (reviewing U.S. case law and international
experience).
[117] For further discussion see infra text accompanying
notes 144-45, 173-75.
[118] 505 U.S. 377 (1992).
[119] [1990] 3 S.C.R. 697.
[120] See R.A.V., 505 U.S. at 391.
[121] Keegstra [1990] 3 S.C.R. at 715-16, 795 (Dickson,
C.J.).
[122] See id. at 725-34 (Dickson, C.J.); id. at
826-42 (McLachlin, J., dissenting).
[123] See id. at 744-58 (Dickson, C.J.) (characterizing
statute's objective as preventing harm caused by hate propaganda and as pressing
and substantial in a free and democratic society); id. at 846-48
(McLachlin, J., dissenting) (agreeing that the law's objective is to prevent
promotion of hatred toward identifiable groups, thereby advancing social harmony
and individual dignity, and that these objectives are
"clearly . . . substantial" and, given world history of racial
and religious conflict, "pressing").
[124] See id. at 759-86 (Dickson, C.J.) (applying the
three-part proportionality analysis of Oakes to the challenged
statute).
[125] See id. at 852-53 (McLachlin, J., dissenting)
(asserting that the statute was not rationally connected to the goal of
preventing promotion of group hate because prosecutions provide publicity to
racists and generate sympathy for them).
[126] See id. at 859-62 (McLachlin, J., dissenting)
(noting inter alia that Salman Rushdie's book SATANIC VERSES was stopped
at the border for violating the standard).
[127] See R. v. Keegstra [1990] 3 S.C.R. at 745-46
(Dickson, C.J.).
[128] See id. at 744-58 (Dickson, J.); id. at
846-48 (McLachlin, J., dissenting).
[129] See id. at 854 (McLachlin, J., dissenting)
(discussing hate propaganda regulation in pre-Hitler Germany).
[130] See id. at 768-71 (rejecting the assertion that
barring hate speech would increase its occurrence).
[131] See 505 U.S. at 382-390; id. at 397-408
(White, J., concurring in the judgment); id. at 417-25 (Stevens, J.,
concurring in the judgment).
[132] See R. v. Keegstra [1990] 3 S.C.R. 697, 755-58
(Dickson, C.J.) (emphasizing Canada's constitutional commitment in Charter ?15
to equality and in Charter ?27 to multi-culturalism).
[133] See id. at 833-37, 849-50, 865 (McLachlin, J.,
dissenting) (rejecting claims that Charter Ё 15 and 27 should limit protection
afforded to free speech under ?2).
[134] For example, Justice McLachlin's dissent includes a lengthy
discussion of the harms caused by hate speech. See Keegstra, 3 S.C.R. at
847-48 (stating, inter alia, that the "continued existence of hateful
communication [undermines] a tolerant and welcoming society, [creating harm]
both to the individuals and groups who are the targets of prejudice, and to
society as a whole" including loss of talent of all its people).
[135] The Court's strongest statement is in the last paragraph of
the opinion before the "reversed, and . . . remanded" sentence.
See R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) ("Let there be
no mistake about our belief that burning a cross in someone's front yard is
reprehensible."); see also id. at 392 (agreeing with the Minnesota state
court that it is the responsibility of communities to confront messages of
hate); id. at 395 (agreeing that interests in ensuring basic human rights
are compelling, but suggesting adequate content neutral alternatives casts doubt
on whether the asserted justification is in fact the statute's purpose). The
disagreeing justices devoted more attention to the values that might support
such an ordinance. See id. at 402 (White J., concurring in judgment)
(characterizing cross burning as an expression of violence, intimidation and
racial hatred); id. at 407 (arguing that the contested ordinance reflects
city's judgment that harms based on race, color, creed, religion or gender are
more pressing public concerns than harms caused by other fighting words, which,
in light of the Nation's long and painful experience with discrimination, is
plainly reasonable).
[136] See Keegstra [1990] 3 S.C.R. 697, 738-44
(Dickson, C.J.) (addressing "the relationship between Canadian and American
approaches to the constitutional protection of free speech," summarizing U.S.
cases, noting importance of being "explicit as to the reasons why or why not
American experience maybe useful in the ?1 analysis," and concluding, inter
alia, that the First Amendment's "strong aversion to content-based
regulation of expression" is incompatible with laws prohibiting hate speech but
that "even in the United States" expression, e.g. child pornography, can be
regulated based on its content, and that the "special role given equality and
multiculturalism in the Canadian Constitution necessitate a departure from the
view . . . that the suppression of hate propaganda is
incompatible with guarantees of free expression"); id. at 811-23
(McLachlin, J. dissenting) (arguing that problem of hate literature and free
expression "is not peculiarly Canadian; it is universal;" futher arguing that
U.S. experience is most relevant to Canada's since both constitutions place high
value on speech; reviewing U.S. cases and emphasizing concerns to avoid chilling
effects on legitimate speech, and noting that U.S. approach requires "clear and
present danger" before free speech can be overrided, in contrast to
international approach which finds the objective of suppressing hatred
sufficient to override free expression).
[137] For one very oblique reference see R.A.V. v. City of St.
Paul, 505 U.S. at 382 (noting that "our society, like other free but
civilized societies has permitted" restrictions on speech in few, limited
areas).
[138] Id. at 391-92 (characterizing the ordinance's
practical operation as viewpoint discrimination because it does not prohibit
sign that "all `anti-Catholic bigots' are misbegotten," but does prohibit a sign
that all "papists" are misbegotten). Cf. id. at 434-35 (Stevens, J.,
concurring in judgement) (disagreeing with the Court's analysis of viewpoint
discrimination because response to sign that all anti-Catholic bigots are
misbegotten is one that all advocates of tolerance are, and both are treated the
same by the ordinance).
[139] See Morton Horwitz, Foreword, The Constitution of
Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30,
113-15 (1993) (criticizing R.A.V. for combining "content neutrality" and
"obliviousness to social consequences," and as a "flight into abstraction and
anti-consequentialism," which ignored reality and resulted in shielding concrete
terrorist acts of cross-burning); see also Akhil Reed Amar, The Case
of The Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV.
124, 161 (1992) (noting absence of the "power and passion" of storytelling in
R.A.V.). R.A.V.'s suggestion that the presence of
non-content-based alternatives - presumably, a broader prohibition on fighting
words - somehow casts doubt on whether the city really did have an interest in
protecting the rights of members of groups historically discriminated against to
live peacefully where they wish, see R.A.V., 505 U.S. at 395, leaves me
mystified at what nefarious purposes the majority suspects.
[140] By "doctrinalize," I mean to distinguish sharply, as
Oakes does, between the (i) rationality of the law, (ii) the extent to
which the law goes beyond the most limited intrusion on affected rights, and
(iii) the proportionality of the law's effects on protected rights.
[141] Some Canadian scholars conclude that the final element of
the Oakes test has played no independent role, and that most of the water
of the Oakes test is carried by the criteria of legitimate and
sufficiently important purpose, rational connection and minimal impairment.
See, e.g., HOGG, CONSTITUTIONAL LAW OF CANADA, supra note 46, at
882-83 (arguing that the final step has "never had any influence on the outcome
of any case" . . . because it is "redundant" with requirements of
a sufficiently important purpose to warrant limiting rights, and of minimal
impairment).
[142] See R. v. Oakes [1986] 1 S.C.R. 103, 139 (asserting
that speech restrictions must be minimally intrusive to survive constitutional
muster); Lokan, supra note 99, at 172.
[143] See Dassios & Prophet, supra note 99, at
302-03 (construing Irwin Toy Ltd. v. Quebec, and other
post-Oakes cases to use a more deferential test than "least
restrictive alternative" focusing on the basis for the government's choice);
Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927, 999 ("This Court will not, in the
name of minimal impairment, take a restrictive approach to social science
evidence and require legislatures to choose the least ambitious means to protect
vulnerable groups."); Chapman, supra note 89, at 889-90 (noting Canadian
Court's retreat from Oakes' least restrictive means test in Edwards
Books and Art).
[144] R. v. Keegstra [1990] 3 S.C.R. 697, 784-85.
[145] See id. at 782, 785, 787 (stressing the value of
combating racial hatred over the low value, "only tenuously connected with the
values underlying the guarantee of freedom of speech," of the hate speech being
banned). This aspect of Justice Dickson's opinion in Keegstra has been
criticized by some who argue that once expression is found to be protected by
Section 2 of Charter, its value should not be considered in analyzing the
proportionality of the means used to prohibit it. One benefit of the
transparency of Dickson's opinion, however, is that it directly addresses the
closeness of the relationship of hate speech to free expression values, arguing
that it does not lie at the core of what free expression protects. In treating
this issue at length in connection with proportionality, I take Judge Dickson to
be suggesting that less is required to justify intrusions on protected
expression that is less close to core expressive values - an elaboration of the
principle of proportionality that corresponds to the normative constitutional
values that seem to be motivating his analysis, and that, in its transparency,
permits clear disagreement.
[146] See id. at 854-62 (McLachlin, J., dissenting).
Interestingly, McLachlin suggests that use of a criminal sanction (rather than a
civil remedy) may itself be a constitutionally-disproportionate response to
intentionally hateful speech, given competing values of freedom of expression,
and alternative means of discouraging hate speech. Recent controversies in the
United States concerning prosecutorial discretion raise questions whether U.S.
free speech law might benefit from distinguishing between conduct that can be
made the basis of a criminal prosecution or investigation, on the one hand, and
civil remedies on the other.
[147] See Roger P. Kerans, The Future of Section One of
the Charter, 23 U.B.C. L. REV. 567, 576 (1989).
[148] RJR MacDonald v. Canada [1995] 3 S.C.R. 199.
[149] See RJR MacDonald, at 268-78 (LaForest, J.,
dissenting) (stating that Section 1 inquiry is frankly normative, requiring
courts to take into account both the nature of the infringed right and the
specific values and principles on which the state seeks to justify the
infringement).
[150] For example, in RJR MacDonald a substantial factor
in the majority's decision to find that the ban on tobacco advertising could not
be sustained under Section 1 was a weakness in the presentation of a form of
legislative history. The government refused to reveal a confidential report on
which it purportedly relied in deciding that the total ban on advertising of a
lawful product was warranted. See id. at 345 (McLachlin, J.). See
generally, Kerans, supra note 147, at 573 (noting the importance of
legislative history, and the degree to which the legislative history plausibly
supports the government's claim of legitimate purpose).
[151] In RJR MacDonald, the Canadian Court held
unconstitutional a federal ban on tobacco advertising. See [1995] 3
S.C.R. 199. This case illustrates the degree to which the definition of the
purpose of a law can determine whether the law will be found to meet the
"minimal impairment" test. See id. at 335-49 (McLachlin, J.). For
the majority, the purpose of the law was only to prevent new smokers from
starting; with so narrowly defined a purpose, the complete ban (which included
"brand switching" advertising purportedly designed to appeal only to existing
smokers to change their brands) could not be seen as "minimally impairing"
speech rights. See supra note 108. The mutability of the precise
definition of purpose to accord with the doctrinal "minimal impairment"
requirement suggests, in a sense, why the concept of proportionality as more
broadly understood may lead to more candid formulations. Cf. Note,
supra note 110, at 154 (urging outright weighing of competing public
policies without "diversionary discussion" of rationality of means-end
nexus).
[152] Canadian scholar Peter Hogg has argued that, rather than
having a generous interpretation of rights and a relaxed standard of
justification under section 1, it would be better to read the scope of the
protected rights in the Charter quite narrowly and then to have a very rigorous
standard of review under section 1, entailing a very strong presumption against
the validity of infringements. See HOGG, CONSTITUTIONAL LAW OF CANADA,
supra note 46, at 859-60; Hogg, Interpreting the Charter of
Rights, supra note 87, passim. Given the expansive rights
orientation of the movement behind the Charter, however, this alternative
approach might not fairly capture the values of both rights-development and of
inclusion and pluralism, so evident in the Charter and in Canada's evolving
self-conception.
[153] See, e.g., United States v. Grace, 461 U.S. 171
(1983) (striking down law prohibiting displays of banners on public sidewalks
around the Supreme Court building, because government may enforce reasonable
time, place and manner restrictions in public forums only if the restrictions
are content neutral, are narrowly tailored to serve a significant government
interest, and leave open ample alternative channels of communication; particular
types of expression may be prohibited only if the prohibition is narrowly drawn
to accomplish a compelling governmental interest); Frisby v. Schultz, 487 U.S.
474, 484 (1988) (upholding ordinance that prohibited residential picketing on a
public street that targeted a particular residence because "privacy of the home
is certainly of the highest order in a free and civilized society" and thus
warranted the complete prohibition of targeted residential picketing).
[154] See Jeremy Kirk, Constitutional Guarantees,
Characterisation and Proportionality, 21 MELB. U. L. REV. 1, 55-56, 64
(1997) (commenting that "proportionality" tests require more candor in
identifying competing values and interests).
[155] See Kerans, supra note 147, at 577. In
emphasizing the importance of a law's impact in evaluating its
constitutionality, Judge Roger Kerans distinguishes the Canadian approach from
what he describes as the American tendency to "worry a lot about the camel's
noise." Id. Canada, being more practical, can distinguish "between
innocuous publication bans today and major censorship tomorrow."
Id.
[156] See Can. Charter (1982), ?1. Interestingly, in
RJR MacDonald v. Canada [1995] 3 S.C.R. 199 and 44 Liquormart v. Rhode
Island, 517 U.S. 484 (1996), the Canadian and U.S. Supreme Courts reached
fairly similar results in striking down the constitutionality of complete bans
on advertising for legal products. In Canada, the ban applied to tobacco
advertising; in Rhode Island, the ban applied to advertising of liquor prices.
In both cases, the respective governments sought to justify their laws on
grounds the courts either accepted without comment or found "legitimate" - in
Canada, to reduce tobacco-associated health risks by reducing consumption
motivated by advertising, see RJR MacDonald [1995] 3 S.C.R. at 336
(McLachlin, J.); in the United States, to increase beer prices to promote
temperance, see 44 Liquormart, 517 U.S. at 504-08. Yet, in both cases,
the courts found that the purported purpose did not justify the means. In
addition, the question was raised whether withholding accurate information from
consumers is ever valid, either as a means or an end. The proportionality test
in RJR MacDonald may have been used to simultaneously approach and
evade the issue whether it is ever legitimate to withhold from consumers
information about lawful products on paternalistic grounds. See [1995] 3
S.C.R. at 343-45 (McLachlin, J.) (observing that the law deprives consumers of a
legal product of "important means of learning about product availability to suit
their preference, [and that] it will be more difficult to justify a complete ban
on a form of expression than a partial ban," and concluding that the ban was
more intrusive on free expression than necessary to accomplish its goals). The
majorities of both courts applied stringent evidentiary standards in addressing
the effect of the means on the government purpose, relied on an absence of
evidence directly showing that the ban would materially decrease consumption,
and discounted evidence that the product manufacturers or retailers thought
there was a connection between advertising and sales. See RJR
MacDonald [1995] 3 S.C.R. at 341-42 (McLachlin, J.); 44 Liquormart,
517 U.S. at 501, 505-06. Neither Court was willing wholeheartedly to adopt the
idea expressed by Justice Thomas in Liquormart that the suppression of
information about a lawful product is per se invalid. See 44
Liquormart, 517 U.S. at 518-528 (Thomas, J., concurring in part and
concurring in the judgment); id. at 504-14 (Stevens, J.); RJR
MacDonald [1995] 3 S.C.R. at 343-44. Yet, both results tend to support the
view of a Canadian commentator that application of free speech norms here
suggest a "consumer/consumption" oriented view of a "free and democratic
society," in which a defining freedom is consumption choices (rather than or in
addition to political ones). See David Schneiderman, A Comment on
RJR-MacDonald v. Canada, 30 U.B.C. L. REV. 165, 175-80 (1996).
[157] See e.g., PATRICK MONAHAN, THE CHARTER, FEDERALISM
AND THE SUPREME COURT OF CANADA 30, 53-60, 78-79 (1987) (arguing that under the
Charter courts are required to balance interests and exercise judicial
"originality" in interpretation).
[158] Although there are Canadian scholars who condemn the
flexibility of the evolving Oakes test of proportionality, there are
others who are more enthusiastic, for reasons that arguably correspond to
Canadian legal culture more than that of the United States. In contrast to
Professor Tribe's description of the universalistic, individual rights-based
U.S. legal culture, see LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES
73-84 (1992), compare the evident pride of some Canadian constitutionalists in
what they describe as Canada's claim to "the middle ground" in "the world of
ideas." See DALE GIBSON, THE LAW OF THE CHARTER: GENERAL PRINCIPLES iv-v
(1996) (describing Canadian Supreme Court decisions as evincing approach to
legal decision-making called "the Principled Middle"); see also MONAHAN,
supra note 157, at 12 (arguing that "Canadian politics has always placed
particular emphasis on the value of community, in contrast to the overriding
individualism of the American experiment").
[159] On the constraining effects of formal rules, see Frederick
Schauer, Formalism, 97 YALE L.J. 509 (1988).
[160] See, e.g., TRIBE, supra note 158, at
74-75.
[161] Canada's Charter, for example, also includes the
"notwithstanding clause" of Section 33, which authorizes both federal and
provincial parliaments to enact laws, for a five-year period, "notwithstanding"
many provisions of the Charter. One could argue that when the legislature
chooses not to invoke Section 33, it has by implication consented to the
Canadian courts' review under the criteria of Section 1. Cf. MONAHAN,
supra note 157, at 81, 115-20 (arguing that inclusion of the override
provision was a recognition by framers of Charter that courts might interpret
Charter in unforeseeable ways); Conklin, supra note 92, at 84 (arguing
that in the absence of an override, courts must exercise stringent review of
infringements of rights). One might also argue that, in the United States, the
absence of an analogous legislative power to either short circuit or overcome
the results of judicial review makes it more important for judicial review to be
conducted under more formalistic and restrained approaches.
[162] For a classic argument against balancing as a form of
constitutional reasoning, see generally, T. Alexander Aleinikoff,
Constitutional Law in the Age of Balancing, 96 YALE L. J. 943
(1987).
[163] 341 U.S. 494 (1951).
[164] Id. at 582 (Douglas, J., dissenting) (identifying
the four books as JOSEPH STALIN, FOUNDATIONS OF LENINISM (1824); KARL MARX &
FRIEDRICH ENGELS, MANIFESTO OF THE COMMUNIST PARTY (1848); V.I. LENIN, THE STATE
AND REVOLUTION (1917); and HISTORY OF THE COMMUNIST PARTY OF THE SOVIET UNION
(1939)).
[165] See id. at 503 (plurality opinion) ("societal value
of speech must, on occasion, be subordinated to other values and
considerations"); id. at 509 ("Overthrow of the Government by force and
violence is certainly a substantial enough interest for the Government to limit
speech"); id. at 510 (adopting Learned Hand's formulation of a balancing
test measuring discounted value and weight of the harm against the invasion on
free speech); id. at 519-25 (Frankfurter, J., concurring) (arguing that
government's inherent right to maintain its existence justifies some
restrictions on speech, and that courts should defer to legislative "balance" of
the relevant factors).
[166] See, e.g., Mark Tushnet, An Essay on Rights,
62 TEX. L. REV. 1363, 1372 (1984) (calling Frankfurter's Dennis
concurrence "one of the great scandals of balancing"); Laurent B. Frantz, The
First Amendment in the Balance, 71 YALE L.J. 1424 (1962) (criticizing
Dennis and arguing against "balancing" rules in free speech cases). For a
contrary view, see, e.g., Wallace Mendelson, On the Meaning of the
First Amendment: Absolutes in the Balance, 50 CAL. L. REV. 821 (1962).
[167] 395 U.S. 444 (1969).
[168] Brandenburg holds that "mere advocacy" of unlawful
conduct is protected by the First Amendment and that only if the advocacy
becomes "incitement" of "imminent unlawful conduct" can the speech be punished.
Id. at 449.
[169] Compare Frankfurter's concurrence in Dennis,
341 U.S. at 519-25 (recognizing individuals' First Amendment rights to think,
read, and teach what they please, as well as the right of the government to
preserve itself) with Douglas's Dennis dissent, id. at
588-89 (stating that "[t]he nature of Communism as a force on the world scene
would, of course, be relevant to the issue of clear and present danger of
petitioners' advocacy within the United States," but there was no record
evidence of communist power within the United States and the Court could take
judicial notice that as a political party it was politically impotent).
[170] See id at 525-26 (Frankfurter, J.,
concurring).
[171] On the purposes of protecting freedom of speech, even
theories that emphasize political speech and the needs of representative
democracies (as compared to broader theories more protective of speech that
emphasize human autonomy or identity expression, artistic expression or the
search for truth) recognize the need to protect expression by those in the
minority as well as in the majority. See ALEXANDER MEIKLEJOHN, FREE
SPEECH AND ITS RELATION TO SELF-GOVERNMENT 15-16, 24-27, 39 (1948) (arguing that
the First Amendment requires that "no suggestion of policy shall be denied a
hearing because it is on one side of the issue rather than the other").
Deference to legislative majorities is thus in some respects particularly
inappropriate in reviewing statutes aimed at minority political viewpoints.
See Martin H. Redish, Advocacy of Unlawful Conduct and the First
Amendment: In Defense of Clear and Present Danger, 70 CALIF. L. REV. 1159,
1198 (1982).
[172] See Vicki C. Jackson, Printz and Testa: The
Infrastructure of Federal Supremacy, 32 IND. L. REV. 111, 138-40 (1998)
[hereinafter Jackson, Printz and Testa].
[173] See Schauer, supra note 159, at 510; Mark
Tushnet, The Hardest Question in Constitutional Law, 81 MINN. L. REV. 1,
13-18 (1996).
[174] On what some regard as the inevitability of "role
discomfort" in being a "good judge," see Guido Calabresi, Foreword:
Anti-Discrimination and Constitutional Accountability: What the Bork-Brennan
Debate Ignores, 105 HARV. L. REV. 80, 132 n.169 (1991) ("A judge who does
not decide some cases, from time to time, differently from the way he would
wish, because the philosophy he has adopted requires it, is not a judge,"
although a judge who never strays from his judicial philosophy "no matter how
important the issue involved, is a fool").
[175] See, e.g., Kathleen Sullivan, The Justice of
Rules and Standards, 106 HARV. L. REV. 22 (1992); see also Kent
Greenawalt, Free Speech in the United States and Canada, 55 LAW &
CONTEMP. PROBS. 5 (1992) (discussing and contrasting "balancing" and
"conceptual" approaches to freedom of speech).
[176] See Richard H. Fallon, Jr., Foreword:
Implementing the Constitution, 111 HARV. L. REV. 54, 80-81 (1997)
(distinguishing between balancing of multiple factors in formulating a rule and
balancing as part of the required test formulated by the Court).
[177] The formalism of its reasoning is manifest, for example, in
the Court's analytical concern with a hypothetical example of anti-bigotry
"hate" speech being outside the reach of the statute, in order to demonstrate
that the statute is not content or viewpoint neutral, as if the logic of the "no
content based" rule would be convincingly self-evident in such a
decontextualized (some might say, counterfactual) setting.
[178] See [1990] 3 S.C.R. 697, 701.
[179] Aleinikoff, supra note 162, at 987.
[180] For example, the rule against prior restraints on speech
can fairly be understood as a categorical rule. However, defining what counts as
speech and as a prior restraint, and whether there are exceptions to the rule
(as in where there is a clear and present danger that the speech sought to be
restrained will lead to imminent violence), all involve questions of judgment
and context. Compare, e.g., Snepp v. United States, 444 U.S. 507, 509 n.3
(1980) (per curiam) (upholding enforcement of former CIA employee's
agreement not to publish information without prepublication clearance and
rejecting argument that the agreement was an unenforceable prior restraint on
speech) with New York Times Co. v. United States, 403 U.S. 713 (1971)
(reversing an injunction against newspaper publication of a secret Defense
Department study of Vietnam war, leaked by a former Pentagon official, because
the government had not met its heavy burden of overcoming the presumptive rule
against prior restraints); id. at 731 n.1 (White, J., concurring) (noting
that National Labor Relations Board and Federal Trade Commission
cease-and-desist orders often restrain what employers or businesses can say, and
that copyright laws also authorize injunctive relief).
[181] See Lokan, supra note 99, at 163 (predicting
development of categorical rules through applications of Section 1
proportionality analysis). Some Canadian scholars have argued that the Oakes
proportionality test ought to be applied with different levels of scrutiny
for different categories of conduct in the free expression area; for example,
political speech would be more highly protected than commercial speech.
See Cameron, supra note 59, at 68-72.
[182] See Lawrence Lessig, Translating Federalism:
United States v. Lopez, 1995 SUP. CT. REV 125, 172-73 (1995).
[183] 521 U.S. 507 (1997).
[184] 494 U.S. 872 (1990).
[185] See id.
[186] For pre-Smith cases involving such claims, see, for
example, McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987); Kahane v. Carlson,
527 F.2d 492 (2d Cir. 1975).
[187] See, e.g., Yang v. Sturner, 750 F. Supp. 558, 559
(D.R.I. 1990) (upholding constitutionality, under Smith, of requiring
autopsy notwithstanding Hmong religious beliefs). According to Flores,
much of the legislative discussion preceding RFRA focused on concern over
autopsies performed "on Jewish individuals and Hmong immigrants in violation of
their religious beliefs." 521 U.S. at 531 (citing Religious Freedom
Restoration Act of 1991, Hearing on H.R. 2797 before the Subcommittee on Civil
and Constitutional Rights of the House Committee on the Judiciary, 102d Cong.,
2d Sess. 81 (1993) [hereinafter "House Hearings"] (statement of Nadine
Strossen)); id. at 107-10 (statement of William Yang); id. at 118
(statement of Rep. Stephen J. Solarz); id. at 336 (statement of Douglas
Laycock); Religious Freedom Restoration Act, Hearing on S. 2969 before the
Senate Committee on the Judiciary , 102d Cong., 2d Sess. 5-6, 14-26 (1993)
[hereinafter "Senate Hearings"] (statement of William Yang); id. at 27-28
(statement of Hmong Lao Unity Ass'n., Inc.); id. at 50 (statement of
Baptist Joint Committee).
[188] See 42 U.S.C.A. ?2000bb-1 (1993). Flores's holding
that RFRA exceeds Congress's power under the Fourteenth Amendment does not
necessarily invalidate RFRA as applied to the federal government.
[189] See 521 U.S. at 529-36. Interestingly, the Court
held that Congress's Section 5 enforcement powers did extend to enforcing the
First Amendment protection of the free exercise of religion as extended to the
states by Section 1 of the Fourteenth Amendment. See id. at 519.
[190] See id. at 519-24. In so ruling, the Court relied on
the drafting history of the Fourteenth Amendment and reached a conclusion that
differs from those of some scholars. See, e.g., John P. Frank and Robert
F. Munro, The Original Understanding of Equal Protection of the Laws,
1972 WASH. U. L. Q. 421, 430 (arguing that framers of the Fourteenth Amendment
intended that Congress could extend the Bill of Rights under Section 5, not that
Section 1 would have self-executing effect, enforced by the courts, of doing
so); Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the
Civil War and Reconstruction, 61 N.Y. U. L. REV. 863, 867, 884-86, 912-14
(1986) (arguing that the drafters of Fourteenth Amendment were more concerned
with ensuring a constitutional basis for Congress's authority to protect
fundamental rights of national citizenship than with protecting individual
rights, and that the concern leading to the change in the wording of the
Amendment relied on by the Flores Court was that, without some
self-executing provisions, Congress might infringe or fail to protect the rights
of national citizenship).
[191] See Flores, 521 U.S. at 532-35.
[192] See id. at 532.
[193] Id. at 529-30.
[194] Id. (citing the legislative record found in House
Hearings, supra note 187, at 331-34 (statement of Douglas Laycock);
Religious Freedom Restoration Act of 1990, Hearing on H.R. 5377 before the
Subcommittee on Civil and Constitutional Rights of the House Committee on the
Judiciary, 101st Cong. 2d Sess. 49 (statement of John H. Buchanan, Jr.) Senate
Hearings, supra note 187, at 30-31 (statement of Dallin H. Oaks);
id. at 68-86 (statement of Douglas Laycock). The Court noted "[t]he
absence of more recent episodes [of intentional religious discrimination] stems
from the fact that, as one witness testified, `deliberate persecution is not the
usual problem in this country.'" Flores, 521 U.S. at 530 (citing
House Hearings at 334 (statement of Douglas Laycock)).
[195] Flores, 521 U.S. at 532.
[196] See id. at 532-36.
[197] Id. at 534.
[198] See Alexander Somek, The Deadweight of Formulae:
What Might Have Been the Second Germanization of American Equal Protection
Review, 1 PA. J. CONST. L. 284, 317-320 (1998) (discussing the German
Federal Constitutional Court's clear mandate under its "New Formula" that a
strict test of proportionality should be applied in specified cases); see
also KOMMERS, supra note 53, at 46 (describing proportionality as
"crucial to any understanding of German constitutional law," "play[ing] a role
similar to the American doctrine of due process of law," an
"approach . . . not so different from the methodology often
employed by the United States Supreme Court in fundamental rights cases,"
involving three steps: "determining the legitimacy of a state purpose;" deciding
under a flexible standard whether the means used "have the least restrictive
effect . . . on a constitutional value," and deciding whether
"the means used [are] proportionate to the end"); CURRIE, supra note 53,
at 307-10 (explaining that the proportionality principle dates back to Magna
Carta and was developed by German Enlightenment thinkers, including Svarez, who
"plainly stated two distinct proportionality requirements. First, the state was
justified in restricting the liberty of the individual `only to the extent
necessary for the liberty and security of others'; Second, the evil to be
prevented must be substantially greater than the attendant harm to individual
liberty . . . . [This] insiste[nce] on proportionality both
between ends and means and between costs and benefits [is] reflected in the
jurisprudence of the Constitutional Court.").
[199] See HOGG, CONSTITUTIONAL LAW OF CANADA, supra
note 46, at 805-06 (distinguishing "characterization" of a law's "pith and
substance" on federalism-based challenge, from characterization of a law
challenged under the Charter's individual rights provisions, with more focus on
the law's effects in Charter review); CURRIE, supra note 53, at 307-10
(linking proportionality in German law to individual rights issues). But see
BEATTY, supra note 78, at 36-39 (arguing that Canadian federalism
cases have developed concept of proportionality, although without using that
term itself, as a basic tool for measuring scope of federal government and
provincial powers). In Australia and the European Union, proportionality has
been invoked in cases dealing, respectively, with the characterization of
the powers of the federal and state governments, and with whether regulatory
action of the European Union organs is authorized by the relevant
treaties.
[200] For an argument that proportionality (and other) principles
in Canada have been used to increase the concurrent powers of both federal and
provincial governments, see BEATTY, supra note 78, at 25-29, and also see
HOGG, CONSTITUTIONAL LAW OF CANADA, supra note 46, at 377-85 (describing
the Court's techniques of characterisation and recognition of multiple purposes
to uphold areas that are, in effect, of concurrent federal-provincial
powers).
[201] For discussion, see Jackson, Federalism, supra
note 36, at 2231-33, 2252-53 (arguing that states do not have
constitutionally protected enclaves of power to regulate private activity free
from federal intervention but that states' maintenance of their own executive,
legislative, and judicial branches is constitutionally protected).
[202] Proportionality analysis could still, in theory, address
the underlying policy question by comparing the costs and benefits of
centralization (through national legislation) to those of decentralization. Yet,
absent some legal directive or standard to guide this determination, it is
difficult to see why on a pure cost benefit analysis one would prefer a court's
judgment to that of the legislature.
[203] In Australia, as in the United States, there are few, if
any, explicit powers reserved to the States. At least one Australian jurist has
criticized the use of proportionality to protect state jurisdiction as such,
while offering guarded support for its use to test the validity of the
"characterization" of federal laws as falling within federal powers (at least
when those powers are limited by a requirement of a particular purpose). See
Kirk, supra note 154, at 36-37, 41-42.
[204] Greater levels of application and detail may be seen as
more intrusive on states' regulatory authority, and thus as bearing on the
degree of injury to the states' interests. Yet, if states do not have
constitutionally protected rights to exercise regulatory authority free of
federal intervention, on what constitutional basis could courts interfere with
the national legislature's leeway to accomplish its goals provided there is a
sufficient connection to a national enumerated power? See generally
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
[205] In Germany, there are subjects on which the federal
government may enact "framework statutes" that must leave substantial room for
the subnational units (called l鋘der) to enact laws filling in the details.
See BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY, Art. 75 (Official
translation, revised edition, March 1995) (providing that "the Federation has
the right to enact framework legislation for legislation of the l鋘der on" a
number of subjects, including "general principles of higher education," "the
general legal status of the press," and "land distribution," and further
providing that "Framework legislation may only in exceptional cases contain
detailed or directly applicable provisions," and imposing duty on l鋘der to
introduce implementing legislation in timely fashion).
[206] See Jackson, Federalism, supra note
36, at 2224-25.
[207] For a discussion of surrogates for purpose tests in U.S.
constitutional law, see Fallon, supra note 176, at 94-95 (examining
content-based and effects-based tests as substitutes for purpose test). Cf.
Washington v. Davis, 426 U.S. 229, 241-42 (1976) (noting that a law's
disproportionate impact may bear on whether the law will be found to have an
impermissible purpose).
[208] See, e.g., Labatt Breweries v. Attorney Gen. [1980]
1 S.C.R. 914; HOGG, CONSTITUTIONAL LAW OF CANADA, supra note 46,
at 377 et seq. (discussing "pith and substance" test to
"characterize" the leading feature, or true nature and character, of the
challenged law). Hogg further states that the "pith and substance" test is not
used to evaluate claims that Charter rights have been infringed but rather to
evaluate whether federal and provincial laws are within their respective heads
of power. Id. at 377 n.21.
[209] Cf. Note, supra note 110, at 124-25
(analyzing Eisenstadt v. Baird).
[210] See 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end
be legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional.").
[211] See Fallon, supra note 176, at 131-32
(treating Flores' Section 5 analysis as resting on a "purpose" test).
Recall suggestions in early constitutional cases in the U.S. that different
"purposes" could authorize federal and state regulation of the same area,
see, e.g., Wilson v. Black-Bird Creek Marsh Co., 27 U.S. (2 Pet.)
245 (1829) (upholding state law draining creek for health purposes though action
might block federally-licensed interstate navigation) and Hogg's suggestion that
the "pith and substance" test serves a similar purpose in Canada. See
HOGG, CONSTITUTIONAL LAW OF CANADA, supra note 46, at 378.
[212] See also Kirk, supra note 154, at 41
(suggesting that courts in Australia use proportionality "as indicative of
purpose" by asking "whether the imbalance, or availability of alternative means,
was of such a clear, gross or overwhelming nature as to prevent the
measure reasonably being characterized as having been made with respect to the
claimed legitimate purpose") (emphasis in original); HOGG, CONSTITUTIONAL LAW OF
CANADA, supra note 46, at 390 (arguing for judicial restraint in
invalidating laws on federalism grounds where the choice between competing
characterizations is not clear). Cf. Dolan v. City of Tigard, 512 U.S.
374, 403 (1994) (Stevens, J., dissenting) (suggesting that the test of
proportionality of land use condition to costs created by landowner's proposed
change is appropriate "only if the developer establishes that a concededly
germane condition is so grossly disproportionate to the proposed development's
adverse effects that it manifests motives other than land use regulation on the
part of the city.").
[213] But see infra part IV below (questioning these
aspects of Flores especially in light of the Fourteenth Amendment's
explicit reliance on Congress to enforce its substantive provisions).
[214] See Cole, supra, note 71, at 229; see
also Noonan, supra note 71, at 470-71 (criticizing proportionality
test as unprecedented and without meaning). Interestingly, Noonan has elsewhere
described the role of proportionality in the principle of "double effect." JOHN
T. NOONAN, JR., THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE AND RELIGIOUS
FREEDOM 205 (1998) (describing principle of "double effect" which "supposes one
action, one good intention, and two simultaneous effects, one good and one bad;
and to be moral the bad effect must be unintended and not be greater than the
good effect. In other words, a judgment is required that the bad is not
disproportionate to the good"). Noonan's dialogue considers whether this
principle could guide public decisions about government accommodation of
religion, but ultimately the principal interrogator concludes not. See
id. at 205-06 (raising concerns about the workability and subjectivity of
the approach).
[215] Note that there are at least three kinds of constitutional
decisions involved in the Flores Court's federalism-based analysis of
RFRA: first, whether "disproportionate impact" practices are prohibited by the
Free Exercise Clause; second, whether one can draw an inference concerning what
the Court would recognize as discriminatory intent from the enactment of
statutes that are facially-neutral but have a disproportionate impact; and
finally, assuming a plausible basis for finding a violation of the substantive
provisions, what means can Congress design to combat it. On all three of these
issues, the Congress and the Court may have had different views. For an effort
to justify RFRA as preventing invidious treatment of minority religions, see
Laycock, supra note 71 at 771-79 (arguing that Smith, together
with Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520 (1993), should not be read to require proof of hostile motive if a statute
provided less favorable treatment to religiously motivated than to secularly
motivated conduct through statutory exemptions, and accordingly there exist a
larger number of laws that should not be regarded as "generally applicable" and
a more substantial number of constitutional violations than Flores
assumed).
[216] In Flores, Respondent Archbishop Flores argued in
favor of the constitutionality of the RFRA in part on the ground that the
legislation was designed to prevent difficult-to-prove invidious religious
discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment. See 521 U.S. 507, 529 (1997); Brief of Respondent Flores at 23-24,
Flores (No. 95-2074). Petitioner's Reply Brief argued that defending RFRA
as a statute that enforces the Equal Protection Clause was "a pretext," and
argued that the Court could invalidate the statute as having an improper
"purpose" without entailing a difficult inquiry into legislative "motive."
See Reply Brief of Petitioner at 4, Flores (No. 95-2074).
[217] For academic comment to the effect that the standard is
more rigorous, see, for example, McConnell, Institutions and
Interpretation, supra note 71, at 165; Laycock, supra note 71,
at 770; but cf. Ira C. Lupu, Why the Congress Was Wrong and the Court
Was Right - Reflections on City of Boerne v. Flores, 39 WM. &
MARY L. REV. 793, 815 (1998) (arguing that while a "rigorous requirement of
congruence" would be "revolutionary," "narrower readings of Flores exist
and involve less tension with" constitutional tradition).
[218] See, e.g., The Civil Rights Cases, 109 U.S. 3, 10-15
(1883) (holding unconstitutional federal law prohibiting race discrimination by
inns and other public places, and narrowly construing Fourteenth Amendment, in
light of Tenth Amendment, to reach only "state action of a praticular
character"); United States v. Cruikshank, 92 U.S. 542, 557 (1875) (construing
the Fourteenth Amendment narrowly and invalidating indictment for interfence
with the right to assemble).
[219] See, e.g., RJR MacDonald, Inc. v. Canada [1995] 3
S.C.R. 199, 342-48 (McLachlin, J.) (striking down prohibition on all tobacco
advertisements; while legislation was rational means toward legitimate goal of
reducing smoking, the complete bar could not be sustained under Charter section
1 because it did not minimally impair free expression rights, the government not
having explained why a partial bar on "lifestyle" advertising designed to
increase consumption, but not on "brand preference" advertising directed at
existing smokers to increase market share, would not have been as
effective).
[220] See Minister for Resources v. Dover Fisheries Pty
Ltd, 116 A.L.R. 54 (1993); see also Kirk, supra note 154, at 2.
For a detailed description of proportionality as a concept in the European
Union, see EMILIOU, supra note 78, at 115-265.
[221] See Kirk supra note 154, at 2, 6. In
Australia the process of determining whether a federal law is supported by one
of its enumerated powers is referred to as "characterization." For implied or
incidental powers, analogous to those contemplated by the U.S. Necessary and
Proper Clause, purpose is always relevant. See id. at 22 (citations
omitted). Other enumerated powers, although not all of them, are deemed to have
a purposiveness requirement, including the power over external affairs and
defense. Proportionality in Australia has been used to determine whether a law
can be "characterisable as in fact adapted to achieve" a legitimate purpose.
Id. at 22; see also H.P. Lee, Proportionality in Australian
Constitutional Adjudication, in FUTURE DIRECTIONS IN AUSTRALIAN
CONSTITUTIONAL LAW: ESSAYS IN HONOUR OF PROFESSOR LESLIE ZINES 126, 130-31
(Geoffrey Lindell, ed. 1994) (noting the similarity between established
"proportionality" test to determine validity of regulations in administrative
law, and its use to determine constitutionality of national legislation). While
acknowledging concern that a proportionality test could invite judges
impermissibly to intrude on legislative functions, Lee argues that some judicial
review of the "degree" of connection between legislative action and legislative
power is necessary to hold the legislature to rule of law standards. Lee,
supra, at 148.
[222] Kirk, supra note 154, at 24-25.
[223] For a classic statement, see Herbert Wechsler, The
Political Safeguards of Federalism: The Role of the States in the Composition
and Selection of the National Government, 54 COLUM. L. REV. 543, 559-60
(1954) (Court is on the weakest ground in opposing its view of Constitution to
that of Congress in the interests of the states); see also, JESSE R.
CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 171-259 (1980)
(arguing that federalism-based challenges to national power should be
nonjusticiable).
[224] See generally Jackson, Federalism,
supra note 36, at 2226-28 & n.206, 2230-55. A distinctive feature of
current U.S. constitutional law may also identify a particular function for the
Flores proportionality test: Federal regulation of state governments as
such under Article I powers, (e.g. commerce clause) may be permitted
(notwithstanding the anti-commandeering rule of Printz) if the federal
statute even-handedly applies to private entities as well. See New York
v. United States, 505 U.S. 144, 178 (1992). For purposes of the Commerce Clause,
the distinction between federal commands to states as such, and federal
regulations that fall even-handedly on states and private entities engaged in
the same behavior, can be defended on a number of grounds as providing adequate
protection to the states from federal regulation that interferes with their
ability to function as independent governments. See Jackson,
Federalism, supra note 36, at 2206-07. But federal regulation under the
Fourteenth Amendment, unlike most Commerce Clause regulations, is necessarily
directed at state power. See The Civil Rights Cases, 109 U.S. 3 (1883).
Given the very purpose of the Fourteenth Amendment to constrain the exercise of
governmental power, it would not make sense to extend the "regulate like private
entities" rationale, by which the Court has, provisionally, maintained the
possibility of congressional regulation of states when acting under Article I
powers, to congressional enforcement of the Fourteenth Amendment. If Congress's
Fourteenth Amendment power to define prohibited state action under Section 1
were unlimited, Congress would have unlimited power to eliminate state
governments' independence. To the extent that, even after enactment of the
Fourteenth Amendment, state governments retain a role as institutional
counterbalances to Congress, it would be inconsistent to allow Congress to
destroy the states. The Flores requirement of proportionality, properly
administered, might thus be a substitute for constraints on Congress's
regulation of the states in other areas, and justified by the need to assure
that the national government cannot destroy the state governments, while at the
same time allowing the federal government ample latitude to prohibit the states
from engaging in practices that arguably violate the provisions of Section
1.
[225] Cf. Lee, supra note 221, at 131, 148-49
(arguing for proportionality review of legislation "bolstered by a measure of
judicial deference").
[226] Flores also has the potential to be considerably
less than benign; a broad reading of its rationale could threaten the
constitutionality of, for example, applying to the states Title VII's "disparate
impact" approach, or the Pregnancy Discrimination Act, both of which provide for
relief on a showing that would not necessarily meet the Supreme Court's
standards for establishing violations of the Equal Protection Clause. See
generally Laycock, supra note 71, at 747-58. While both of these
statutes may be sustainable as even-handed regulations of states as employers,
see supra note 224 (discussing New York v. United States, 505 U.S.
144 (1992)) to the extent they are grounded in the Fourteenth Amendment
Flores poses some risk (though perhaps more from the Court's holding that
Congress cannot go beyond the Court's definition of what Section 1 prohibits
than its holding on proportionality).
[227] See Cole, supra note 71, at 47.
[228] For a discussion of the basis for judicial deference to
Congress in reviewing federalism-based challenges to congressional action, see
Jackson, Federalism, supra note 36, at 2227. (arguing that Herbert
Wechsler's argument that the structure of the national political process created
by the Constitution tended to assure that states' interests were considered by
Congress still has much merit, and that federal constitutional arrangements
require a certain pragmatic give in the joints to function effectively over
time).
[229] While it may be somewhat more rigorous than the "mere
rationality" standard, proportionality review in the Fourteenth Amendment
context, if limited to instances of gross disproportionality, may
do little seriously to impair Congress's power creatively to insist that states
provide equal protection and due process of law to all. Note that the
Flores Court refers with approval to its earlier decision in South
Carolina v. Katzenbach, 383 U.S. 301, 334 (1966) (upholding the Voting
Rights Act's suspension of literacy tests for five years in light of evidence
that such tests had been used to exclude blacks from voting, and a concern that
their use would freeze the effects of past intentional discrimination in the
voter rolls). Moreover, the Court in South Carolina v. Katzenbach upheld
a provision suspending any change in state voting rules or practices until
federal authorities had reviewed them, a novel and intrusive step justified, the
Court said, by the "extraordinary stratagem" states had in the past and might in
the future adopt to exclude citizens from voting because of their race. 329 U.S.
at 334, 329-31. While the Court did not explicitly refer to proportionality, its
suggestion that extraordinary resistance justifies unusual responses, is
consistent with the approach.
Other rationales that may sustain the
requirement of proportionality go to whether efforts to promote the free
exercise of religion by mandating accommodation would violate the prohibitions
on federal establishment of religion. See Flores, 521 U.S. at
536-37 (Stevens, J. concurring); cf. Jed Rubenfeld,
Antidisestablishmentarianism: Why RFRA Really Was Unconstitutional, 95
MICH. L. REV. 2347 (1997) (arguing that RFRA violates Establishment Clause). On
whether the inquiry itself might be incompatible with the judicial role, see
Mark Tushnet, Two Versions of Judicial Supremacy, 39 WM. & MARY L.
REV. 945, 947-48 (1998). See also Flores, 521 U.S. at 513 (discussing the
Court's evaluation and rejection, in Smith, of the Sherbert
standard which required courts to determine whether a particular practice was
central to an individual's religion - a determination that, according to the
Court, is "not within the judicial ken") (quoting Smith, 494 U.S.
at 887). This article does not address these arguments other than to note that
for those who believe that the two prongs of the religion clauses can come into
conflict with each other at points of accommodation, this may provide an
additional reason to identify some test for the validity of congressional power
apart from the rational basis test into which McCulloch v. Maryland,
17 U.S. (4 Wheat) 316 (1819), had developed.
[230] Compare City of Boerne v. Flores, 521 U.S. 507,
520-24 (arguing that redrafting of provisions of Section 1 was designed to allay
fears that Congress would have too much power) with McConnell,
Institutions and Interpretation, supra note 71, at 177-81 (arguing
that the redrafted provision does not as a matter of language reduce Congress's
power and was not understood by its drafters to do so). The Court's suggestion
that its interpretation of Sections 1 and 5 of the Fourteenth Amendment, as
limiting Congress to the design of remedial legislation, but not to a role in
defining the substantive scope of Section 1, is "significant also in maintaining
the traditional separation of powers between the Congress and the Judiciary,"
Flores, 521 U.S. at 523-24, is peculiarly circular. It could be argued
that the Fourteenth Amendment changed those relations, just as it changed
federal state-relations, to the extent contemplated by the Amendment. Indeed,
since the Fourteenth Amendment was designed in part to overturn Dred Scott v.
Sandford, 101 Howard 393 (1857) such a reading is hardly implausible.
[231] See, e.g., Michael W. McConnell, Free Exercise
Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109 (1990)
[hereinafter, McConnell, Free Exercise Revisionism]; see also
Christopher L. Eisgruber and Lawrence G. Sager, Why the Religious Freedom
Restoration Act is Unconstitutional, 69 N.Y.U. L. REV. 437, 442-45 (1994)
(criticizing the Court's decision in Employment Division v. Smith, but also
arguing against RFRA).
[232] See Cole, supra note 71, at 59-64 (arguing
that Congress has particular institutional competence in interpreting the
Constitution that should be given more deference than did the Flores
Court); McConnell, Institutions and Interpretation, supra note 71,
at 155-56, 171-74 (arguing that the independent judgment of Congress on a
constitutional question is relevant to judicial interpretation, especially in
areas, such as the Free Exercise Clause, where there is plausible support for
multiple interpretations).
[233] See Flores, 521 U.S. at 515 (describing floor
debates in which members of Congress discussed points of constitutional
interpretation and criticized the Court's reasoning in Smith); id.
at 536 (stating that once the Court has interpreted the Constitution, the
political branches "act against the background of [that] interpretation" and
that "RFRA contradicts vital principles necessary to maintain separation of
powers and the federal balance"). The Court indicated that once it had made a
constitutional decision, it "will treat its precedents with the respect due them
under settled principles, including stare decisis, and contrary
expectations must be disappointed." Id. Thus, the Court rather clearly
implies that the more expansive views of rights protected expressed by Congress
in subsequent legislation are irrelevant.
[234] Interestingly, Justice O'Connor's dissent, joined by
Justice Breyer, seems to agree. She wrote that if she did not disagree with
Smith, she would have joined the part of the Court's opinion in which
this discussion is found because "when [Congress] enacts legislation in
furtherance of its delegated powers, Congress must make its judgments consistent
with this Court's exposition of the Constitution and with the limits placed on
its legislative authority by provisions such as the Fourteenth Amendment."
Flores, 521 U.S. at 545-46. Justice O'Connor's position is surprising,
since she also argues that the case should be used as a vehicle to reconsider
Smith, and notes that stare decisis is not a barrier to
reconsideration because Smith is "demonstrably wrong" and "is a recent
decision [that] has not engendered the kind of reliance on its continued
application that would militate against overruling it." Id. at 548. Why,
if Justice O'Connor believes that the Court could appropriately overrule
Smith, would it be inappropriate for Congress to provide such an
opportunity to the Court through the enactment of RFRA?
[235] 505 U.S. 833 (1992).
[236] See id. at 867 ("[T]o overrule under fire in the
absence of the most compelling reason to reexamine a watershed decision would
subvert the Court's legitimacy beyond any serious question.").
[237] See Casey, 505 U.S. at 954-57 (Rehnqist, C.J.,
dissenting); see also Christopher J. Peters Foolish Consistency: On
Equality, Integrity, and Justice in Stare Decisis, 105 YALE L. J. 2031, 2046
n.71 (1996) (stating that as a ground for not overruling, controversiality of
prior decisions "becomes absurd if taken literally"). But cf. Larry
Alexander and Frederick Schauer, On Extrajudicial Constitutional
Interpretation, 110 HARV. L. REV. 1539 (1997) (arguing that what the Supreme
Court says must be treated as binding all other actors in order to serve the
"coordination" functions of having a final decision-maker that constitutionalism
requires). For a response see Tushnet, supra note 229, at 952-59
(challenging Alexander and Schauer's conclusion that courts rather than
legislature should play "settlement" function).
[238] One might believe that the Court's decision on
constitutional matters must have priority over the views of other branches of
government, and still believe that the system must be structured to allow
opportunities for the views and positions of the other branches in disagreement
with the Court to be considered by the Court through subsequent legal
challenges.
[239] Cf. Dolan v. City of Tigard, 512 U.S. 374, 389
(1994) (relying upon state court decisions about when a government regulation is
a taking as an appropriate guide to development of a distinctive federal rule
requiring "proportionality" between the conditions imposed and the benefits
sought when a property owner requests a land use variance). The Court's
occasional willingness to consider the views of the state courts on
constitutional questions typically litigated there provides one model for
considering the views of other constitutional courts. One might distinguish the
Court's consideration of state cases from consideration of foreign decisions on
the ground that state courts address identical issues under the identical
constitution, whereas foreign decisions necessarily address different
constitutions, even where the constitutional language is purportedly similar.
But see Dolan, 512 U.S. at 398 (Stevens, J., dissenting) (pointing
out that none of the state court cases announced anything akin to the Court's
"rough proportionality" rule and noting that most of the state court cases cited
by the majority relied on state law or other unspecified grounds, rather than on
the federal Constitution).
[240] See Jackson, Federalism, supra note
36, at 2228-31, 2257-58.
[241] See also Horwitz, supra note 139, at 38-40
(suggesting that the "turn to history" and explicit preoccupation with
legitimacy in the plurality opinion in Casey were symptoms of "a crisis
of legitimacy in constitutional thought in which the generally accepted
paradigms . . . are no longer felt capable of yielding convincing
solutions to constitutional questions"); cf. Louis Michael Seidman,
This Essay Is Brilliant/This Essay is Stupid: Positive and Negative
Self-Reference in Constitutional Practice and Theory, 46 U.C.L.A. L. REV.
501, 504-06 (1998) (finding pervasive foundational disagreement in modern
constitutional law, discussing how this phenomena is reflected in Supreme Court
opinions, and arguing that "loudly insisting on the truth of one's own
statements can . . . suggest an insecurity as to their truth"
reflecting this absence of fundamental agreement).
[242] Congress did so, for example, in enacting RFRA to provide
greater protection for religious practices than provided by Smith v.
Employment Division, 494 U.S. 872, 876-79 (1990), and by enacting a federal
flag burning statute, albeit with different language, after the Court struck
down a state flag burning statute, see U.S. v. Eichman, 496 U.S. 310
(1990) (holding that the Flag Protection Act of 1989, passed in response to the
Court's striking of a state flag-burning statute in Texas v. Johnson, 491
U.S. 397 (1989), was also unconstitutional). Moreover, in re-enacting the Gun
Free School Zones Law, albeit with an element of "affecting commerce" added,
see 18 U.S.C. ?922(q) (1998), Congress indirectly challenged the Court's
decision holding unconstitutional a gun ban in U.S. v. Lopez, 514 U.S.
549 (1995). Apart from these constitutional confrontations, Congress has
repeatedly overturned the Court's interpretations of federal statutes in several
areas, including, for example, (1) federal civil rights statutes, see,
e.g., Grove City College v. Bell, 465 U.S. 555 (1984) (leading to the Civil
Rights Restoration Act of 1987); Wards Cove Packing Co. v. Antonio, 490 U.S. 642
(1989) (leading to the Civil Rights Act of 1991); see also Landgraf v.
USI Film Prod., 511 U.S. 244, 251 (1994) (describing the 1991 law as a response
to several Court decisions); (2) federal laws relating to the sovereign immunity
of the United States, for example, U.S. Dept. of Energy v. Ohio, 503 U.S.
607 (1992) (holding that even though the United States was a "person" subject to
suit under certain environmental laws, it could not be sued for state-imposed
punitive damages) (leading to the Federal Facility Compliance Act of 1992, 106
Stat. 1505, amending laws to provide specifically that federal agencies were not
immune from such awards); and (3) the amenability of states to being sued for
liabilities under federal statutes such as the Fair Labor Standards Act and the
Federal Rehabilitation Act, discussed in Vicki C. Jackson, One Hundred Years
of Folly: The Eleventh Amendment and the 1988 Term, 64 S. CAL. L. REV. 51,
83 n.141, 89-90 nn.161-162 (1990). See generally William N. Eskridge,
Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101
YALE L. J. 331 (1991).
[243] Federal elected officials, including the President, the
Congress, and its members have challenged federal judges across an array of the
activities in recent years. For congressional challenges to federal courts'
sponsorship of studies of gender and race equality in their courts, see Todd
Peterson, Studying the Impact of Race and Ethnicity in the Federal
Courts, 64 GEO. WASH. L. REV. 173, 175, 186-88 (1996) (describing how
Senators Gramm, Grassley and Hatch denounced and tried to defund federal
court-sponsored studies of gender and race equality). For an example of unusual
congressional oversight of how federal judges spend their time, see U.S. Senate
Judiciary Comm. on Adm. Oversight and the Courts, Report on Judicial Survey (May
1996) (describing survey of federal judges concerning how much time they spent
on activities such as education and case management). For challenges to a
federal judge's individual adjudicatory decision by elected officials (outside
the ordinary course of U.S. Attorney's office litigation), see, for example,
Linda Greenhouse, Rehnquist Joins Fray in Rulings, Defending Judicial
Independce, N.Y. TIMES, Apr. 10, 1996, at A1 (describing attacks on Judge
Harold Baer for exclusion of evidence in drug cases). In 1996, Congress and the
President also passed the first major spate of jurisdiction-stripping
legislation to be enacted in many decades. See generally Symposium,
Congress and the Courts, 86 GEO. L. J. 2445 (1998) (discussing the
potential impact of federal laws restricting the jurisdiction and remedial
powers of the federal courts across a range of litigation brought by prisoners
and immigrants); Exordium, Suspension and Supremacy, Judicial Power and
Jurisdiction: The Availability and Scope of Habeas Corpus After AEDPA and
IIRIRA, 98 COLUM. L. REV. 695 (1998) (discussing effect of AEDDPA and IIRIRA
on federal courts' jurisdiction in habeas relief in the post-conviction and
executive detention contexts).
[244] Sandra Day O'Connor, Broadening Our Horizons: Why
American Judges and Lawyers Must Learn About Foreign Law, 1997 Spring
meeting, American College of Trial Lawyers, reprinted in 4 INT'L JUDICIAL
OBSERVER, June 1997 at 2 (publication jointly sponsored by the Federal Judicial
Center and the American Society of International Law).
[245] See discussion supra text accompanying notes
11-12.