The Invisible Constitution in Comparative Perspective

Russell A. Miller

given. But the Court has yoked itself to a three-part formula that gives its work 

in this context the feeling of objectivity and scientific inquiry. In the first step, 

the Court begins by defining the scope of the asserted constitutional protec-

tion. This, for example, requires the Court to answer the question “to whom 

or what does the basic right apply?” In the second step the Court assesses 

whether there has been a direct or indirect encroachment upon the protecta-

ble scope of the basic right. In the third step the Court determines whether an 

encroachment on the basic right has been justified. This, in turn, requires the 

Court to follow one of two systematic paths, one for rights that can be limited 

by statute,

174

 and another for rights that are absolute.

175

 Each of these tracks 

involves a distinct, systematized assessment.

The central component of step three (the determination whether an 

encroachment is justified) is the application of the proportionality principle 

for which the Court is well-known.

176

 The proportionality principle might be 

characterized as an open-ended balancing test that gives the justices unchecked 

and dangerously subjective discretion to assign “weight” to competing interests 

and to reach conclusions on the basis of an unsystematic balancing exercise.

177

 

There is some truth in this critique. But the criticism should grapple with 

the Constitutional Court’s highly methodical approach to proportionality 

analysis. In fact, in the system developed by the Court, the proportionality 

principle involves balancing or weighing only as the last of four steps in the 

analysis.

178

 Before determining whether measures that encroach upon basic 

rights are proportional to the benefits they are intended to produce, the Court 

first examines whether the measures are legitimate, suitable, and necessary.  

174 

Kommers, Supra note 13, 857 (“[a] close look at the Basic Law discloses an interesting hierar-

chy of rights. Some are cast in unqualified language”).

175 

Ibid.

 (“[a]ll other rights are conditional, and they fall into three categories. First are those 

rights which can only be limited by the terms of the Basic Law itself . . . The second category of 

conditional rights are those whose contours are to be defined by law . . . Finally, certain rights 

may be restricted by the ‘general laws’. The reference here is to the general provisions of the 

civil and criminal code”).

176 

See e.g., Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurispru-

dence” (2007) 57 University of Toronto Law Journal 383.

177 

See Vicki C. Jackson, “Ambivalent Resistance and Comparative Constitutionalism: Opening 

Up the Conversation on ‘Proportionality’, Rights, and Federalism” (1999) 1 Journal of Consti-

tutional Law 583, 603–4 (quoting William Stuntz as asserting “[t]here 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 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”).

178 

Robert Alexy, “Constitutional Rights, Balancing, and Rationality” (2003) 16 Ratio Juris 131, 135.

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