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Proportionality And The Relevance Of Rights, Jud Mathews
Proportionality And The Relevance Of Rights, Jud Mathews
Jud Mathews
It is now well known that proportionality-based balancing has become the dominant approach to the judicial review of legislation that limits constitutional rights. But has proportionality outgrown rights? In other words, are specific constitutional rights — as opposed to, say, a general right to proportional treatment — necessary, or desirable, once courts have adopted proportionality analysis? This issue animates the debate between Professors Luc Tremblay and Matthias Klatt in the International Journal of Constitutional Law. In this comment, I weigh in on the Tremblay/Klatt debate, and make a case for the continued relevance of rights in proportionality balancing.