American balancing and German proportionality: The historical origins

Abstract

Constitutional law is being globalized. It is becoming a shared enterprise that transcends the borders of the nation-state.1 Around the globe, supreme court justices convene in conferences, enter into dialogue with each other through their judicial opinions, and draw on each other's work.2 In addition, constitutional law in many countries has increasingly converged upon the same template. This template, termed by Lorraine Weinrib the “post-War paradigm,”3 includes a robust form of judicial review and a two-stage system of protecting rights, consisting of a rights protection clause and a standard-based doctrine for the adjudication of rights conflicts, namely, proportionality. The spread of proportionality across legal systems has been particularly rapid and has provided a common grammar for global constitutionalism—what David Law has referred to as generic constitutional law.4 David Beatty has gone as far as arguing that proportionality was the “ultimate rule of law,”5 suggesting that convergence on this principle would end age-old controversies over constitutional interpretation and signal the end of constitutional legal history.