Proportionality, constitutional law, and sub-constitutional law: A reply to Aharon Barak

Abstract

Aharon Barak and I agree on many questions of proportionality analysis. But there are also points of disagreement. One point concerns the relation between constitutional rights and proportionality. Barak argues that my connection between constitutional rights and proportionality is too narrow. The connection I defend implies that proportionality has effects at the constitutional level. In contrast to this, Barak defends the thesis that proportionality only operates at the sub-constitutional level. In this article, I attempt to show that proportionality, already at the constitutional level, must have effects. Naturally, these constitutional effects have, in turn, effects at the sub-constitutional level.