Abstract: R. Randall Kelso, “United States Standards of Review versus the International Standard of Proportionality: Convergence and Symmetry.”
Part I of this article notes that rights review in the United States is based on two distinct lines of authority: tier review and reasonableness balancing review. Under tier review, courts focus on whether to adopt strict scrutiny, intermediate review, or minimum rationality review. Under reasonableness balancing review, courts balance the benefits of the government regulation against the burden on the individual, and then ask whether given the benefit the burden is “unreasonable,” “clearly excessive,” “grossly excessive,” “grossly disproportionate,” or in some other fashion goes “too far.” Rights review in constitutional courts around the world use one approach: proportionality. Proportionality analysis has three basic steps: suitability, necessity, and balancing “stricto sensu.”
Despite these surface differences, each approach uses the same building blocks in developing the relevant standard of review. As discussed in Part II, each is based on a means/end analysis, focusing on the ends the government is seeking to advance and the means by which those ends are advanced. Each focuses on the extent to which the government action is narrowly tailored to not burden individual rights more than is viewed as appropriate. Each is concerned with whether the government’s interests are strong enough to justify the burden on individual rights. Given this backdrop, Part III discusses the international proportionality analysis and American tier and reasonableness review in greater depth. Part IV considers these standards of review against a backdrop of civil law and common law decisionmaking styles.
Finally, in Part V, the standards of review are related to the philosophic divide between positivist and natural law theories of justice. As discussed in Part V, both the current majority on the United States Supreme Court and international constitutional rights decisionmaking reject review based on a limited positivist vision of protecting only clearly identified specific rights in the Constitution, consistency with customs and traditions of society, and limited review to ensure the government action is not irrational. Instead, the current majority of the United States Supreme Court and international constitutional decisionmaking reflect a commitment to protecting human dignity against government infringement and giving individuals equal concern and respect.
- constitutional standards of review united states international
Available at: http://works.bepress.com/randall_kelso/12/