Oren Tamir (Harvard University, Harvard Law School; NYU Law) has posted Beyond the Binary: Toward A New Global Model of Constitutional Rights Adjudication (41 Berkeley Journal of International Law 198 (2023)) on SSRN. Here is the abstract:
Both the literature and practice of constitutional rights adjudication around the world strongly suggest that we live in a binary. Only two “models” are realistically available for us to choose from when deciding how to organize systems for adjudicating rights. The first model is proportionality analysis. In this model, which is extremely common around the world, constitutional rights are defined expansively. And courts then make highly granular and context specific determinations in rights disputes guided by a familiar, single, four-step protocol. By contrast, the second model is categorical reasoning. In this model, which is primarily associated with constitutional adjudication in the U.S., rights are defined much more narrowly. And courts then review claims concerning rights based on predetermined but varied tiers of scrutiny or bespoke tests which limit the considerations judges are allowed to weigh or balance and which are often meant to be quite rigid and outcome-determinative. Since the domain of constitutional rights in this model is narrow and because some of the outcome-determinative tests judges operationalize under it tend to sharply bias results in favor of the right being protected, this model is closely associated with Ronald Dworkin’s conception of rights as “trumps.”
This paper argues that our set of choices is broader than the binary. There is another available model around which we can choose to organize systems for adjudicating constitutional rights. And that alternative model is importantly distinct from the existing models: on one hand, it allows systems to combine between key elements of proportionality and categorical reasoning in surprising and previously unexplored ways. On the other hand, this new model diverges from proportionality and categorical reasoning along several crucial dimensions, including the degree of deference to political decision-makers it institutionalizes, the judicial technique and remedy for protecting rights it supplies, and this model’s consistent focus on protecting rights endangered by governmental inaction.
Perhaps surprisingly, the origins of this new model are also found in the U.S. system, much like categorical reasoning. It is just that it operates in a different corner of American public law than the one we regularly focus on: that of the subconstitutional law of administrative law. The paper describes this new administrative law model of constitutional rights adjudication, highlights its distinctive features, and identifies its primary strengths and costs. The paper then claims that it is already possible to identify where the administrative law model would prove attractive and should displace the reliance on the existing models, either in whole or in part. Most clearly, the administrative law model seems especially apt for the system from which it originates—the U.S. And the paper in fact suggests that realizing that this model exists can increase the prospects of achieving meaningful and desirable change in the path of U.S. constitutional law. However, signs of dissatisfaction with the state of constitutional rights adjudication around the world (among other things) indicate that the model may at least in part prove attractive also in other domestic jurisdictions and at the international level. Going forward, the administrative law model therefore deserves a permanent place in the constitutional toolkit.
Highly recommended.
