KENDE.EDITOR.

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ARTICLE

THE UNMASKING OF BALANCING AND

PROPORTIONALITY REVIEW IN U.S.
CONSTITUTIONAL LAW

By Mark S. Kende*
I. INTRODUCTION ........................................................................... 417
II. PRAGMATIC V. FORMALIST TENDENCIES .................................... 420
A. Pragmatism Evident ........................................................... 420
B. Formalism Evident ............................................................. 421
III. THE SHIFT TO BALANCING AND PROPORTIONALITY REVIEW ...... 424
A. Level 1 European Type Proportionality in the U.S.
Supreme Court.................................................................... 426
B. Level 2 Proportionality: The More American Approach ... 427
1. Eighth Amendment ....................................................... 428
2. Punitive Damages ......................................................... 428
3. Section 5 of the 14th Amendment ................................. 429
C. Level 1 Open Balancing ..................................................... 429
1. Dormant Commerce Clause .......................................... 429
2. Abortion ........................................................................ 429
3. The Fourth Amendment ................................................ 430
4. Procedural Due Process ................................................ 430
5. Freedom of Speech ....................................................... 430
6. Campaign Finance ........................................................ 431
D. Level 2 Masked Balancing ................................................. 431
IV. CONCLUSION .............................................................................. 433

I. INTRODUCTION
U.S. constitutional law is frequently described as formalistic.1 For

*
James Madison Chair Professor in Constitutional
Constitutional Law Center. The author wishes to
opportunity to participate in this conference.
1 Allison H. Eid, Federalism and Formalism, 11
(“Many commentators have critiqued the Supreme
Law, Director of the Drake University
thank Professor Michael Herz for the
WM. & MARY BILL RTS. J. 1191 (2003)
Court’s New Federalism Decisions as

417
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418 CARDOZO J. OF INT’L & COMP. LAW [Vol. 25:417

example, the U.S. is one of the few nations where originalism is taken
seriously as an interpretive method.2 This method involves searching
through 18th Century American dictionaries to see how key words in
the Constitution were defined to answer questions today. 3 Moreover,
conservative politicians constantly beat the drum against “judicial
activism,” supposedly seeking a strictly construed constitution.4
Conservative scholars can be part of this chorus (though sometimes they
are the activists). Alexander Bickel highlighted the “passive virtues.”5
Herbert Wechsler actually doubted the correctness of Brown v. Board of
Education6 because it was not based on “neutral principles.”7 Free
speech case law is supposedly categorical,8 and equality law purportedly
depends on three scrutiny levels. Foreign law’s influence is frowned
upon by several Justices.9 And the U.S. Constitution supports
individualistic liberty with no affirmative socio-economic rights, only
negative civil and political rights,10 as well as strong principles of state
sovereignty. This paper, however, seeks to unmask the flexibility,
functionalism and other factors that lie behind this pretense of
formalism.
Specifically, this paper insists that American constitutional law

‘excessively formalistic.’”). American constitutional law is not nearly as formalistic as the code-
based French approach to constitutionalism. But this paper is addressing democracies where
courts have something akin to judicial supremacy on constitutional matters.
2 Jack Balkin, Why Are Americans Originalist, in LAW, SOCIETY AND COMMUNITY 309
(Richard Nobles & David Schiff ed., 2014); Jamal Greene, On the Origins of Originalism, 88
TEX L. REV. 1, 19 (2009). But see Ozan Varol, The Origins and Limits of Originalism: A
Comparative Study, 44 VAND. J. TRANSNAT’L L. 1239 (2011) (discussing originalism in Turkish
cases).
3 District of Columbia v. Heller, 554 U.S. 570 (2008) (Justice Scalia frequently references
old dictionaries to help define constitutional terms in his opinion, for example, he discusses
Samuel Johnson’s 1773 dictionary). It is especially difficult to apply these definitions to
technologies that did not exist in the 18th century such as freedom of expression on the Internet.
But originalists “construct” suitable meanings there (emphasis added).
4 Greene, supra note 2, at 17.
5 Alexander M. Bickel, The Supreme Court, 1960 Term — Foreword: The Passive Virtues,
75 HARV.. L. REV. 40 (1961).
6 Brown v. Bd. of Edu. of Topeka, 347 U.S. 483 (1954).
7 Herbert Wechsler, Toward Neutral Principles in Constitutional Law, 73 HARV. L. REV. 1,
22 (1959).
8 Alexander Tsesis, The Categorical Free Speech Doctrine and Contextualization, 65
EMORY L.J. 495 (2015) (emphasizing the categorical nature of American First Amendment
doctrine, but also pointing out that balancing still occurs).
9 Roper v. Simmons, 543 U.S. 551, 624-26 (2005) (Scalia J., dissenting) (Justice Sotomayor
had to promise at her confirmation hearing in the Senate Judiciary Committee that she would not
resort to foreign law).
10 Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Posner, J.) (“The Constitution is a
charter of negative liberties[.]”).
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often is, and should be pragmatic, purpose oriented, and contextual.

Facts and evidence should matter, not out of date abstractions. Indeed,
many of those who defend the formalist conservative view are actually
masking flexible balancing analysis and proportionality review.
Moreover, the paper argues that unmasking and openly balancing would
make U.S. constitutional law more coherent and enhance the U.S.
Supreme Court’s fading reputation.11 For example, the Court would be
more candid and concrete about what it’s doing. In addition, the
Constitution’s age and vagueness has left open a more flexible and
functional approach, as used in some of the Court’s earliest cases.
Justice Breyer supports such balancing in his recent book The Court and
the World,12 as does Prof. Vicki Jackson in her recent Yale Law Journal
article on Constitutional Law in the Age of Proportionality.13 Jackson’s
title is a veiled critique of a 1980’s skeptical article by Alex Aleinikoff
titled Constitutional Law in The Age of Balancing.14
What this paper further suggests is that the U.S. Supreme Court’s
method of interpretation are actually not that different from the open
proportionality review in nations like Canada, South Africa, Germany,
and Israel. Stephen Gardbaum has already written about this to some
extent.15 Yet this paper seeks to describe in more detail the kind of
balancing used in American constitutional law. The paper has several
sections. Part II discusses Marbury v. Madison16 and McCulloch v.
Maryland17 as examples of pragmatic functional rulings. But it then
shows the Supreme Court’s use of formalist criteria in later noteworthy
cases. Part III, however, discusses four types of balancing that occur in
American constitutionalism: European style proportionality analysis,
American proportionality analysis, explicit balancing, and masked
balancing. Opposing arguments will also briefly be addressed.

11 Adam Liptak, “We the People” Loses Appeal With People Around the World, N.Y. TIMES
(Feb. 6, 2012), http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-
around-the-world.html?_r=0.
12 STEPHEN BREYER, THE COURT AND THE WORLD, AMERICAN LAW AND THE NEW
GLOBAL REALITIES 292 (2016).
13 Vicki V. Jackson, Constitutional Law in an Age of Proportionality, 124 YALE L.J. 3094
(2015).
14 Alexander T. Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943
(1987).
15 Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism,
107 MICH. L. REV. 391 (2008).
16 Marbury v. Madison, 5 U.S. 137 (1803).
17 McCulloch v. Maryland, 17 U.S. 316 (1819).
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II. PRAGMATIC V. FORMALIST TENDENCIES

This section shows how some of the Court’s earliest decisions
were pragmatic. But it then demonstrates how the Court evolved into
issued more formalist decisions.

A. Pragmatism Evident
The Supreme Court’s seminal Marbury decision has received
much criticism. The Court ruled for the political opposition (President
Jefferson), denied delivery of a judicial commission to Mr. Marbury,
and yet developed judicial review in a way that has influenced the rest
of the world – hardly a formalist role. As William Van Alstyne, has
shown, the Court could have avoided the constitutional question and
determined that it lacked statutory jurisdiction. Or the Court could have
read Article III as not limiting the mandamus authority of the Supreme
Court’s original jurisdiction.18 But no one can doubt the Court’s
pragmatism. One can question Chief Justice Marshall’s role and
motives since the “the context of [the] statute is acrid with the smell of
threatened impeachment.”19 But Marshall guaranteed separation of
powers and checks and balances, and the Federalist Papers indicated
the founders wanted that.20 Marshall was no formalist. This is further
confirmed by his structural and policy arguments in McCulloch
regarding the dangers of the other branches.
In McCulloch, the Court ruled that the Necessary & Proper Clause
should be interpreted flexibly to give Congress the power to create a
national bank. State sovereignty could not stand in the way. Interstate
commerce could not function otherwise. Federal power was supreme in
terms of balancing interests. He made clear it was a “Constitution we
are expounding”21 not a formalist code. The Bank would benefit the

18 William Van Alstyne, A Critical Guide to Marbury v. Madison, 18 DUKE L.J. 1 (1969).
The issue was whether Marbury was still entitled to receive personal delivery of his commission
to become a Justice of the Peace, even though the Federalists in power did not deliver the
document in time. Id. He brought suit for mandamus invoking the Supreme Court’s original
jurisdiction, which created numerous legal questions mentioned above. Id. Chief Justice Marshall,
a Federalist, ruled that the new President Thomas Jefferson, a Republican, did not have to carry
out the complete the delivery. Id.
19 Morrison v. Olson, 487 U.S. 654, 697, 702 (1988) (Scalia, J., dissenting). See generally
Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy, 30 LAW & SOC. REV. 87
(1996) (discussing the impeachment threat Marshall faced).
20 Numerous parts of the Federalist Papers emphasize this. See, e.g., THE FEDERALIST NO. 51
(James Madison). For an important revision of the usefulness of James Madison’s Constitutional
Convention Notes as well, see MARY SARAH BILDER, MADISON’S HAND, REVISING THE
CONSTITUTIONAL CONVENTION (2015).
21 McCulloch, 17 U.S. at 407.
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country in many ways, such as facilitating the need to raise armies and
navies, deposit taxes, etc.
Now the Supreme Court’s language in these cases did not herald an
era of activism. The Court did not strike down another law as
unconstitutional until Dred Scott v. Sandford22 and this was a foolish
effort to avert the Civil War. But Marbury and McCulloch established
that structural, policy, slippery slope, and moral arguments mattered,
not just originalist text or state power. Indeed, the Civil War took place,
and it is still surprising that the Framers who authored the Civil War
Amendments and supported Reconstruction, are treated by the Supreme
Court as second class “framers” compared to the Philadelphia
Convention’s slave holders.23 These Civil War Amendments opened the
door to the expansion of federal power and the protection of rights,
though the conservative Court quickly closed that door in the 1870’s
and 1880’s without sufficient justification.

B. Formalism Evident
Among the Court’s first decisions after the Civil War were The
Slaughter-House Cases24 and The Civil Rights Cases.25 These
problematic decisions became partly responsible for the Court’s
awkward fundamental rights jurisprudence in the 20th Century. 26 The
Court also had a formalistic tendency to rigidly categorize cases.
In The Slaughter-House Cases, the Court restricted the Fourteenth
Amendment’s Privileges & Immunities clause. Yet most scholars
viewed the clause as a font of fundamental rights to protect the newly
freed slaves.27 Instead, the Court utilized a textual approach to establish
a narrow definition and to preserve state sovereignty. The Fourteenth
Amendment indicated that, “All persons, born, or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside[.]” This clause

22 Scott v. Sandford, 60 U.S. 393 (1857).

23 See generally GEORGE FLETCHER, OUR SECRET CONSTITUTION: HOW LINCOLN
REDEFINED AMERICAN DEMOCRACY (2003). See Also CHARLES BLACK, NEW BIRTH OF
FREEDOM (1999).
24 Slaughter-House Cases, 83 U.S. 36 (1873).
25 United States v. Stanley, 109 U.S. 3 (1883).
26 See, e.g., David Currie, The Constitution in the Supreme Court: Limitations on State Power
1865-1873, 51 U. CHI. L. REV. 329, 348 (1983). The Court has found implied fundamental rights
in the Due Process Clause of the Fourteenth Amendment even though such rights are substantive,
yet the clause looks procedural. But the Court has focused on the Amendment’s reference to
“liberty.” This awkward construction would not have been needed had the Court read the
Privileges & Immunities clause robustly.
27 RAOUL BERGER, GOVERNMENT BY JUDICIARY 18, 20 (2d ed. 1977).
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essentially “codified” the Emancipation Proclamation by liberating the

slaves and making them full natural born U.S. and state citizens.
The Court, however, contrasted that language with a later part of
the Fourteenth Amendment, relied on by the plaintiffs, which said that,
“No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.” The Court
explained that this second reference to privileges or immunities only
covered “citizens of the United States,” not citizens of the states. The
Court said this textual difference was vital. Citizens of the United
States only had a few unique rights. The most fundamental rights were
held by the citizens of a state. This was a surprising victory for the
states given the Civil War. The Court embraced strict construction.
In The Civil Rights Cases, the Court developed a narrow state
action doctrine in rejecting the constitutionality of the Civil Rights Act
of 1875. Section 1 of the Act said:
That all persons within the jurisdiction of the United States shall be
entitled to the full and equal enjoyment of the accommodations,
advantages, facilities, and privileges of inns, public conveyances on
land or water, theaters, and other places of public amusement;
subject only to the conditions and limitations established by law, and
applicable alike to citizens of every race and color, regardless of any
previous condition of servitude.
Despite the obvious purpose here to prohibit racial discrimination
broadly, the Court ruled that the law could not cover private
accommodations, even those open to the public. Such establishments
remained insulated by state sovereignty, even after the Civil War. The
federal law could only be used to strike down state laws that actually
discriminated.28
Another example of formalism is the even earlier 1869 decision,
Paul v. Virginia29 involving whether issuing an insurance agreement
was interstate commerce. The Court said no.
The defect of the argument lies in the character of their business.
Issuing a policy of insurance is not a transaction of commerce. The
policies are simple contracts of indemnity against loss by fire,
entered into between the corporations and the assured, for a

28 Thus, the Supreme Court eventually supported laws that prevented discrimination in
accommodations based on the Commerce Clause, not the Equal Protection Clause. The Civil
Rights Cases prevented use of the latter provision to attack private racism. See, e.g., Heart of
Atlanta Motel v. United States, 379 U.S. 241 (1964).
29 Paul v. Virginia, 75 U.S. 168 (1868). GRANT GILMORE, THE AGES OF AMERICAN LAW 12
(1974) (stating that the formalist period went from at least the Civil War to World War I; one
could argue, however, that formalist impulses were still present until the heights of the
Depression).
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consideration paid by the latter. These contracts are not articles of

commerce in any proper meaning of the word. They are not subjects
of trade and barter offered in the market as something having an
existence and value independent of the parties to them. They are not
commodities to be shipped or forwarded from one State to another,
and then put up for sale. They are like other personal contracts
between parties which are completed by their signature and the
transfer of the consideration. Such contracts are not interstate
transactions, though the parties may be domiciled in different States.
The policies do not take effect—are not executed contracts—until
delivered by the agent in Virginia. They are, then, local transactions,
and are governed by the local law. They do not constitute a part of
the commerce between the States any more than a contract for the
purchase and sale of goods in Virginia by a citizen of New York
whilst in Virginia would constitute a portion of such commerce.30
Yet it defies common sense to exclude all insurance contract sales from
interstate commerce.
There were also troubling child labor cases. In Hammer v.
Dagenhart,31 the U.S. Supreme Court in 1918 reasoned that a federal
law prohibiting the shipment of child labor products across state lines
did not implicate interstate commerce. The Court explained that the law
regulated the “manufacturing” conditions of the product, and that
manufacturing was local. Though overturned during the New Deal, this
kind of rigid categorizing and localism was common. Indeed, in Bailey
v. Drexel Furniture Co.,32 the Court struck down a law that taxed
companies for using child labor by reasoning that the tax was just a
“work around” of Hammer. The taxing and spending power could no
more justify the intrusion into the states, and the interference with the
market, than the Commerce Clause.
Finally, there is the well-known 1983 case of INS v. Chadha33 in
which the Court struck down the legislative veto, which had permitted
one house of Congress to veto deportation decisions delegated to the
Attorney General. Yet Congress’s power here was based on its
unquestioned authority to delegate. Nonetheless, the Court said this
veto was unconstitutional under the rules of bicameralism and
presentment. Specifically, the President alone had the veto power,
whereas this law allowed Congress to play that role. This was a
formalist ruling that overcame a strong pragmatic dissent. Indeed,

30 Paul, 75 U.S. at 183.

31 Hammer v. Dagenhart, 247 U.S. 251 (1918).
32 Child Labor Tax Case, 259 U.S. 20 (1922).
33 INS v. Chadha, 462 U.S. 919 (1983).
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subsequent scholarship suggests this ruling has been “worked around”

in certain ways.34 Ironically, the Court used a functional approach to
executive power only five years later in the famous independent counsel
case, Morrison v. Olson,35 though the legacy of Watergate undoubtedly
played a role there.
This is just the tip of the iceberg in terms of the Court’s formalism.
Strict textualism and cramped definitions were among the techniques
used. Yet in these cases, implicit balancing occurred. The Court upheld
federalism against national power, even in situations where there were
free rider problems. This formalism largely faded around 1937 after
President Franklin Roosevelt tried to add more liberal justices to the
Supreme Court in what is known as the “Court packing scheme.” From
that point in the Great Depression, federal power grew almost
continually until 1995 and the Court became more flexible in many
cases.36 The “administrative state” was born. The Court used explicit
balancing analysis. After World War II, courts in new democracies, as
well as certain international institutions, adopted proportionality
widely.37

III. THE SHIFT TO BALANCING AND PROPORTIONALITY REVIEW

As mentioned, proportionality review took the world by storm after
World War II with many nations having a key case, except the U.S.
The Canadian Supreme Court decided the influential Regina v. Oakes.38
South Africa’s Constitutional Court decided State v. Makwanyane,39 a
death penalty case which became the basis for the 1996 Constitution’s
Limitations Clause. Israel decided United Mitzrahi Bank v. Migdal
Cooperative Bank.40 But this paper will not discuss Israel much given

34 LOUIS FISCHER & NEAL DEVINS, POLITICAL DYNAMICS OF CONSTITUTIONAL LAW 121
(2001).
35 Morrison v. Olson, 487 U.S. 654 (1988) (upholding independent counsel though the office
was not meaningfully under the domain of the executive branch that the office was investigating).
36 Lopez v. United States, 514 U.S. 549 (1995) (federal power under the Commerce Clause
was not found to be excessive again until Lopez). And no federal law has been struck down as
providing an insufficient delegation of power to the executive branch. Federal power has
generally grown. The “legal realist” movement also played a role debunking formalist
orthodoxies.
37 MOSHE COHEN-ELIYA & IDDO PORAT, PROPORTIONALITY AND CONSTITUTIONAL
CULTURE (2013); JACOB BOMHOFF, BALANCING CONSTITUTIONAL RIGHTS: THE ORIGINS AND
MEANING OF POST-WAR LEGAL DISCOURSE (2013); DAVID BEATTY, THE ULTIMATE RULE OF
LAW (2005). Alec Stone Sweet & Jud Matthews, Proportionality, Balancing, and Global
Constitutionalism, 47 COLUM. J. TRANSNAT’L L. 73 (2008).
38 R. v. Oakes, [1986] 1 S.C.R. 103 (Can.).
39 State v. Makwanyane 1995 (3) SA 391 (CC) (S. Afr.).
40 CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) PD 221 (1993)
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the other papers on that topic. Surprisingly, German proportionality

analysis arose out of Prussian administrative law – not exactly the font
of democracy.41 Many other nations and trans-national institutions also
have seminal cases in this arena.42
But American exceptionalism is alive and well here. Justice Scalia
once wrote that balancing was like determining “whether a particular
line is longer than a particular rock is heavy.” 43 He preferred a clear
rule. There are other critiques mentioned later.
Former Israeli Supreme Court President Aharon Barak provides a
useful framework in an important treatise. He writes that
proportionality analysis involves a structured step by step analysis in
which a rights impingement can be justified when:
(i)it is designated for a proper purpose;
(ii)the measures undertaken to effectuate such a limitation
are rationally connected to the fulfillment of that purpose
(iii)the measures undertaken are necessary in that there
are no alternative measures that may similarly achieve that
same purpose with a lesser degree of limitation, and
(iv)there needs to be a proper relation between the
importance of achieving the proper purpose and the
social importance of preventing the limitation on the
constitutional right.44
This approach typically shows liberality regarding the definition of
rights. Other nations like South Africa utilize the criteria in totality,
rather than separately.45 Many of these nations share a communitarian
ethos, and modern constitution unlike the U.S individualistic liberty

(Isr.).
41 Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57
U. TORONTO L.J. 383, 384 (2007) (Justice Grimm has been a member of the German Federal
Constitutional Court as well as a noted scholar).
42 Soering v. United Kingdom, 11 Eur. Ct. H. R. 439 (1989). See also Case C-180/96 United
Kingdom of Great Britain and Northern Ireland v Commission of the European Communities
[1998] ECR, I-2265, para. 96.
43 Bendix Autolite Corp. v. Midwesco Enter., 486 U.S. 888 (1988) (Scalia J., dissenting).
44 AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS
3 (2012). Judge Richard Posner authored a vigorous criticism of Barak’s book, even though they
both are pragmatists, though in different ways. Richard Posner, Elighted Despot, NEW REPUBLIC
(Apr. 23, 2007), http://www.tnr.com/article/enlightened-despot.
45 Section 36 of the South African Constitution requires consideration of a totality of the
criteria. See Vicki Jackson, Constitutional Law in the Age of Proportionality, 124 YALE L.J.
3094, 3099 (2015).
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orientation.46 Nevertheless, proportionality review has made cameos in

the U.S. Supreme Court.

A. Level 1 European Type Proportionality in the U.S. Supreme Court.

The European-Israeli type approach is most evident from Justice
Breyer’s dissent in District of Columbia v. Heller,47 a case that decided
the Second Amendment of the U.S. Constitution allows private citizens
to own a firearm. The Court rejected a contrary D.C. law, and rejected
the theory that the right to bear arms was only a collective right for
members of a militia. Breyer’s dissent uses the term “proportionality”
explicitly and in a European fashion, though he interestingly hides the
European pedigree.48 He also labels his approach “interest balancing.”49
This case has been written about in a most perceptive way by Israeli
scholars.50
Breyer relies on the D.C. City Council’s detailed empirical
evidence, the city’s horrific record of violence, the history of the Second
Amendment, and the general principle of deference to the legislature, to
conclude that the justifications for D.C. banning firearms in homes
outweighs the counter that the Second Amendment establishes an
individual right to firearms. He also asserts there are no less restrictive
alternatives.51
His focus is on consequences, not on 18th century dictionary
definitions as in Justice Scalia’s originalist majority opinion and Justice
Stevens’ dissent. Conservative jurists Richard Posner and Harvey
Wilkinson have harshly criticized Scalia’s opinion.52 Breyer’s emphasis

46 The South African Constitution, for example, is supposed to embrace the communitarian
notion of Ubuntu. Yvonne Mokgoro, Ubuntu and the Law of South Africa, 4 BUFF. HUM. RTS. L.
REV. 15 (1998). Justice Mokgoro served on the South African Constitutional Court and has also
been a professor of law.
47 Heller, 554 U.S.
48 Id. at 682 (Breyer, J., dissenting). Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign
Law Debate in Heller: The Proportionality Approach in American Constitutional Law, 46 SAN
DIEGO L. REV. 367 (2009). Justice Breyer may have not mentioned the foreign sources of his
thinking to avoid a conflict with the Court’s conservative Justices on the utility of foreign law.
49 Heller, 554 U.S. at 689 (Breyer, J., dissenting).
50 Cohen-Eliya & Porat, supra note 48.
51 Id. at 710-11 (“In weighing needs and burdens, we must take account of the possibility that
there are reasonable, but less restrictive, alternatives. Are there other potential measures that
might similarly promote the same goals while imposing lesser restrictions?”). See Nixon v.
Shrink Mo. Gov’t Pac, 528 U.S. 377, 402 (2000) (Breyer, J., concurring) (“existence of a clearly
superior, less restrictive alternative” can be a factor in determining whether a law is
constitutionally proportionate).
52 Richard Posner, Is It All Politics, NEW REPUBLIC (2008). Adam Liptak, Ruling on Guns
Elicits Rebuke from the Right, N.Y. TIMES (Oct. 20, 2008),
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on consequences is instructive because the cases and scholars vary their

descriptions of balancing and proportionality. Vicki Jackson writes
that, “Proportionality can be understood as a legal principle, as a goal of
government, and as a particular structured approach to judicial
review.”53 Indeed, American proportionality’s pragmatic and empirical
qualities make it feasible for determining either consequence or motive
depending on the case. Similarly, some American scholars have
distinguished between ends-consequences balancing,54 and means
balancing.55
What is crucial though is that Breyer assumes, like the majority,
that individuals do have some right to bear arms, but still says the
Heller D.C. law is valid. In that sense he really is using European
proportionality’s two overarching stages, especially in treating the right
liberally. First, there must be a finding about whether a right is
infringed, and then second – there must be a determination about
whether the infringement limitation is justified, e.g., the proportionality
analysis. This is different from American constitutional jurisprudence.
Since Breyer authored a dissent, however, the case still only
reveals exceptionalism. But Justice Scalia’s majority surprisingly
concedes that there are numerous acceptable restrictions on firearm
access, such as for those with felony records and mental health
problems. Moreover, Scalia acknowledges that laws can prohibit
firearms from special locations such as schools or government buildings
(and that sellers can impose certain conditions on sales). Some
American conservatives have criticized Scalia’s exceptions.56 Yet
Scalia invokes originalist and tradition based sources. But the real
problem is that Scalia here is engaged in “implicit balancing,” when he
says such restrictions can be allowed. Scalia also never clarifies the
Court’s level of scrutiny.

B. Level 2 Proportionality: The More American Approach

This section discusses several U.S. Supreme Court cases that
reference the term proportionality, but that do not utilize the systematic
German method.

http://www.nytimes.com/2008/10/21/washington/21guns.html.
53 Jackson, supra note 45, at 3098.
54 E. THOMAS SULLIVAN, RICHARD FRASE, PROPORTIONALITY PRINCIPLES IN AMERICAN
LAW 54 (2008).
55 Id. at 171.
56 Liptak, supra note 52.
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1. Eighth Amendment
The Supreme Court has adopted what it calls “narrow
proportionality” in cases involving whether punishment is “cruel and
unusual.” This affirms that the Court will only rarely find a punishment
disproportionate. But there have been significant developments that are
based on whether the punishment exceeds the “evolving standards of
decency that mark the progress of a maturing society.”57
For example, the Supreme Court has recently outlawed the death
penalty for the mentally ill,58 for juveniles,59 and for those who commit
rape.60 Declining popular support (facilitated by exonerations) may
have played a role here too. Death sentences generally have declined,61
and pharmaceutical companies refuse to provide chemicals to carry out
lethal injections.62 The Court has also ruled that juveniles may not be
sentenced to life imprisonment without parole, because the juvenile
should not be presumed incorrigible.63 Nonetheless the Court has said
that it must be “highly deferential” to the legislature in these cases and
that only “grossly” excessive punishments qualify.
Interestingly, these rulings resemble Europe’s opposition to the
death penalty. And several Justices have shown European-type
concerns about solitary confinement as being “cruel and unusual.”

2. Punitive Damages
In BMW v. Gore,64 the Supreme Court adopted a three-part test for
whether a punitive award was excessive under substantive due process.
The criteria include: (1) the degree of reprehensibility of the conduct;
(2) the ratio between the compensatory damages and the punitive
damages; and (3) the sanctions imposed for comparable conduct in
other states. Factor 2 is a proportionality ratio and is probably the most
important.
The decision had an impact. In State Farm Mutual Automobile
Insurance Co. v. Campbell, the Court rejected a punitive damage award

57 Trop v. Dulles, 356 U.S. 86 (1958).

58 Atkins v. Virginia, 536 U.S. 304 (2002).
59 Roper, 543 U.S.
60 Coker v. Georgia, 433 U.S. 584 (1977).
61 Matt Ford, The Death Penalty Becomes Rare, THE ATLANTIC (Apr. 21, 2015),
http://www.theatlantic.com/politics/archive/2015/04/the-death-penalty-becomes-
unusual/390867/.
62 Jennifer Horne, Lethal Injection Drug Shortage, THE COUNCIL OF STATE GOVERNMENTS
(Feb. 17, 2011), http://www.csg.org/pubs/capitolideas/enews/issue65_4.aspx.
63 Graham v. Florida, 560 U.S. 48 (2010).
64 BMW of N. Am. v. Gore, 517 U.S. 559 (1996).
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that was 145 times more than the compensatory damages. 65 The Court
then confusingly said that a 1:1 ratio was usually right except “where a
particularly egregious act has resulted in only a small amount of
damages.”66 The problem with these limits, however, is that they may
prevent the award from being high enough to deter the conduct, which
is the purpose of punitive damages.

3. Section 5 of the 14th Amendment

In City of Boerne v. Flores, the Court rejected the constitutionality
of the Religious Freedom Restoration Act which specified that laws
substantially burdening religion should receive strict scrutiny.67 The
Court said Congress was really trying to overturn an earlier
constitutional decision by using a statute.68 The Court reasoned the law
was not “congruent and proportional.”69 There was little evidence of
widespread national religious discrimination, and yet the law would
cover all 50 states and let prisoners deluge the courts with petitions.70
This is a type of measurement or weighing that resulted in a defeat for
religious rights.

C. Level 1 Open Balancing

The Supreme Court uses open balancing in several areas.

1. Dormant Commerce Clause

The Court here generally weighs whether the state’s interest in
passing a neutral law is exceeded by the law’s burden on out of state
business.71 The Court also looks at the state’s purpose and at less
restrictive alternatives, so there is some resemblance to Germany.

2. Abortion
There is also the undue burden test in abortion cases. In Whole
Women’s Health v. Hellerstedt, Justice Breyer authored an opinion that
struck down draconian Texas restrictions on abortion clinics in a 5-3

65 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
66 Id.
67 Boerne v. Flores, 521 U.S. 507 (1997).
68 Id.
69 Id.
70 Id.
71 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).
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decision.72 Justice Scalia had passed away. Breyer’s opinion contains a

level of factual detail perhaps only rivalled by a “Brandeis Brief”
(which is basically all numbers and statistics).73 The Court reasoned
that the Texas restrictions (requiring that abortion doctors have hospital
admitting privileges, that hospitals be nearby, and that the clinics
become more like a hospital) resulted in the closure of numerous clinics
and imposed huge obstacles on women, especially the poor and/or those
who would have to drive long distances. Breyer balanced this huge
burden against what he said were virtually non-existent health benefits
based on expert testimony.

3. The Fourth Amendment

The Fourth Amendment prohibits unreasonable searches and
seizures. One balancing case was Riley v. California, where the
Supreme Court invalidated the warrantless search of a cell phone
incident to an arrest.74 The privacy intrusion of examining the digital
data on the phone far exceeded any public danger. An even more
famous example of this kind of balancing is Tennessee v. Garner.75

4. Procedural Due Process

In the procedural due process area, the Court weighs several
factors such as the burden on the individual against the state’s interest,
as well as the risk of error. Matthews v. Eldridge.76 This was a social
security disability case, but the test has also been used in a “war on
terror” detention case regarding an enemy combatant’s rights.77 The
executive privilege doctrine for Presidents requires a balancing test.78

5. Freedom of Speech
There are free speech cases that openly use balancing, though they
tend to be older. In Schneider v. New Jersey, the Supreme Court said

72 Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016) (the majority opinion was
written in a pragmatic manner by Justice Breyer using balancing).
73 Nora Morag-Levine, Facts, Formalism, and the Brandeis Brief: The Making of a Myth,
2013 U. ILL. L. REV. 59 (2013). The most famous Brandeis brief was filed in Muller v. Oregon,
208 U.S. 412 (1908).
74 Riley v. California, 134 S. Ct. 2473 (2014).
75 Tennessee v. Garner, 471 U.S 1 (1985) (a police officer may not shoot to kill unless she is
in danger of death or grave bodily harm).
76 Matthews v. Eldridge, 424 U.S. 319 (1976).
77 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
78 United States v. Nixon, 418 U.S. 683 (1974).
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that a community could not bar leafletting to maintain cleanliness,

especially if the community really acted because it disliked the
message.79 In another famous First Amendment case involving the
communist threat, the Court specified that “the gravity of the evil must
be discounted by its improbability.”80 This is high stakes balancing
More recently, there is United States v. Alvarez.81 This was the
Stolen Valor Act case where the Court said it was unconstitutional to
prosecute a political figure for lying about having received a military
award.82 Justice Breyer concurred, but said that intermediate scrutiny
and balancing should be used since false speech had almost no First
Amendment value.83 However, as in Germany, and in some U.S. cases,
he determined that there were less restrictive alternatives available than
banning the speech.84 Interestingly, the U.S. Supreme Court has struck
down two laws that essentially prohibited mutilation or desecration of
the U.S. flag, whereas France and many other nations take the opposite
view .85

6. Campaign Finance
Finally, there are several recent campaign finance cases where the
Court found that free speech interests trumped laws aimed at corruption,
such as in McCutcheon v. FEC.86 Many scholars and public figures
assert that the Court got these decisions wrong, especially a case called
Citizens United v. FEC.87

D. Level 2 Masked Balancing

A large amount of balancing in U.S. constitutional law actually
occurs where the Court claims to be using a rule or a clear standard. Yet
the truth is otherwise. Equality is such an area, as are cases involving
the zoning of indecent speech.
The Supreme Court explicitly utilizes three levels of scrutiny in
equality cases: strict, rationality, and intermediate. But this is false.

79 Schneider v. New Jersey, 308 U.S 147 (1939).

80 Dennis v. United States, 341 U.S. 494 (1951) (quoting Judge Learned Hand from the court
below).
81 United States v. Alvarez, 132 S. Ct. 2537 (2012).
82 Id.
83 Id.
84 Id.
85 Compare Texas v. Johnson, 491 U.S. 397 (1989), with Décret n° 2010-835 du 21 juillet
2010 relatif à l’incrimination de l’outrage au drapeau tricolore.
86 McCutcheon v. FEC, 134 S. Ct. 1434 (2014).
87 Citizen’s United v. FEC, 558 U.S. 310 (2010).
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Most scholars acknowledge that the Court uses at least 5 or 6 levels of

scrutiny.88 These include rationality with a bite, a heightened
intermediate review,89 and a less than fatal loose strict scrutiny.90 Also,
equal protection intermediate scrutiny resembles balancing, though
actual motive is sometimes the focus (in gender cases). Whereas laws
are usually upheld under rationality review and struck down under strict
scrutiny, there is a real weighing process regarding intermediate
scrutiny.
Regarding the zoning of “indecent” adult theaters, the Court states
it upholds such laws on the grounds that they are content neutral and
have secondary effects, not because the Court believes they are low
value speech. But this is disingenuous. The Court’s precedents suggest
it would not allow the marginalization of core political speech
generally.91
Given these masked areas, here’s where it may be possible to say
that balancing plays a greater role than the Supreme Court
acknowledges. Indeed, Justice Thurgood Marshall proposed a sliding
scale in which he rejected the binary tiers of scrutiny. 92 He said the
Court should recognize more variations of scrutiny, especially if the
individual interest was very powerful. He wrote dissents about this in
Dandridge v. Williams93 (a welfare benefits case) and San Antonio v.
Rodriguez94 (a school financing case implicating the poor). He
reasoned the individual rights claims should trump the state’s
questionable justifications. There are indeed a host of rationality with
bite cases like U.S. Dept. of Agriculture v. Moreno95 that would fit
somewhere on this scale. So perhaps Marshall and his sliding scale lost
the battle but can win the war.

88 See, e.g., Suzanne Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481 (2004); R.
Randall Kelso, Standards of Review Under the Equal Protection Clause and Related
Constitutional Doctrines, Protecting Individual Rights: The “Base Pus Six Model” and Modern
Supreme Court Practice, 4 U. PENN. J. CONST. L. 225 (2002).
89 United States v. Virginia, 518 U.S. 515 (1996) (Justice Ginsburg requires an “exceedingly
persuasive justification” which appears to go beyond ordinary intermediate scrutiny.).
90 Grutter v. Bollinger, 539 U.S. 306 (2003) (utilizing strict scrutiny but deferring to the
university).
91 Phillip Prygoski, The Supreme Court’s “Secondary Effects” Analysis in Free Speech
Cases, 6 COOLEY L. REV. 1 (1988).
92 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (Marshall, J., dissenting)
93 Dandridge v. Williams, 397 U.S. 471 (1970).
94 Rodriguez, 411 U.S.
95 Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973)
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IV. CONCLUSION
Proportionality analysis, or even American style balancing, has
several advantages over current U.S. constitutional doctrine.
First, as Justice Breyer’s recent book states, it’s more transparent
and candid.96 Second, it’s more fact-based and empirical which also
means it’s more contextual. Third, it’s a methodology that can be
applied throughout much constitutional law, helping to remove some of
the incoherence of the innumerable tests employed. This is important
because American constitutional doctrine makes little sense in areas as
diverse as the Commerce Clause, religion (think about the bizarre status
of the Lemon v. Kurtzman97 case), and racial discrimination (think of the
strange Parents Involved98 case), etc. Fourth, it will assist the Court in
cases that involve new technologies as it is more flexible. And fifth one
can argue it promotes justice as shown by its use going back to the
Justice also known as the “people’s lawyer,” Justice Brandeis.99
On this last point, the Federalist Papers No. 51 contains language
calling for relatively equal checks and balances. Moreover, in Weems v.
United States, the Court said that: embodied in the Constitution’s ban
on cruel and unusual punishment is the “precept of justice that
punishment for crime should be graduated and proportioned to the
offense.”100
This does not mean all cases will be rightly decided. For example,
in Board of Education v. Earls, Justice Breyer authored a troubling
concurrence upholding random warrantless searches of student lockers
for drugs, if the student wanted to engage in extracurricular activities.101
But there was plenty of evidence it was just such activities that lessened
drug use.
And proportionality analysis has weaknesses. Initially, it provides
less certainty as to the result, compared to rule oriented tests. It also
leaves room for the Justices’ personal predilections since there are no
clear categories. But over time, case law can serve as precedent and

96 BREYER, supra note 12.

97 Lemon v. Kurtzman, 403 U.S. 602 (1971) (the decision establishes a three-part test for
Establishment Clause cases that has never been overturned but that is really not used as before –
indeed at different times, more than five Justices have advocated abandoning the test).
98 Parents Involved in Cmty. Sch. v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (Court
bars voluntary desegregation actions by schools before litigation begins, and mischaracterizes the
views of the lawyers in the famous Brown case).
99 Louis Brandeis: The People’s Attorney (Stuart Television Productions Sept. 1, 2007).
100 Weems v. United States, 217 U.S. 349 (1910).
101 Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty v. Earls, 536 U.S. 822
(2002).
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analogies just as in American constitutional law. Moreover, the

principles in American constitutional law change frequently.102
Finally, adopting proportionality does not mean that U.S. Supreme
Court cases will come out the same way as their foreign counterparts.
In the Aviation Security case,103 the Federal Constitutional Court of
Germany ostensibly used proportionality to rule, in the abstract view,
that the military could not shoot down a plane taken over by terrorists,
to prevent the plane from going into a building full of helpless people, if
there was just one innocent person on the plane. That person’s dignity
interest, and the possibility that the military got things wrong, means the
military must hold back. Whereas in the U.S., the Supreme Court
would probably rule that this a political question. And if it reached the
merits, the likely U.S. (and British originated) utilitarian approach to
values (saving many at the expense of a few – think of the death
penalty) would outweigh the limited dignity concern.104 Thus,
proportionality does not guarantee the right result on the merits or the
same result. But it could ensure a more coherent and fact-based
analysis in many U.S. Supreme Court cases.

102 Compare Bowers v. Hardwick, 471 U.S. 186 (1986), with Lawrence v. Texas, 539 U.S.
558 (2003) (the Court reverses its position on the constitutionality of laws against gay sodomy).
103 BVerfG, 1 BvR 357/05, Feb. 15, 2006,
http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705en.html. Though the Court
discusses proportionality there, one could also view the case as establishing that human dignity is
an absolute right.
104 United States v. Curtiss Wright Corp., 299 U.S. 304 (1936) (President’s power to take
military or similar action to protect the nation is strong and derives from British origins).
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