Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America. Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual constitutional right can be regulated by the state.
The PA analysis generally considers the following aspects:
1. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right?
2. Are the means in service of the objective rationally connected (suitable) to the objective?
3. Are the means in service of the objective necessary, that is, minimally impairing of the limited right, taking into account alternative means of achieving the same objective?
4. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right?
Clearly, this four part test is similar to, but distinct from the doctrinal tests that the U.S. Supreme Court often uses to analyze rights, such as strict or intermediate scrutiny. But it differs by allowing for more balancing (under step 4) and in the way the courts apply it.
High courts in Europe and throughout the world have used this approach in breathtaking exercises of judicial power. And it is sometimes thought to be the opposite of an originalist approach. But in this short essay (of seven pages), I argue that originalism and proportionality analysis are not opposites. In fact, some of the time proportionality analysis may be justified under originalism.
Here is the abstract:
While it is often thought that proportionality analysis (PA) and originalism are inconsistent with one another, this essay argues that the two approaches do not necessarily conflict. The reason is that originalism and PA are focused on different things. Originalism is an interpretive method that attempts to determine and apply the original meaning of a constitution. PA, by contrast, is a method mainly for analyzing rights under the fundamental law. If the original meaning of the constitution requires PA, then the two approaches will coincide. If the original meaning requires something other than PA, then the two will conflict.
The real question, then, is not whether the two approaches conflict or coincide in general, but whether the original meaning of a particular constitution requires or permits PA. This essay, which is part of a symposium on originalism published online in the Italian Law Journal Diritto Pubblico Comparato Ed Europeo, develops these points. It starts by showing that originalism is not necessarily inconsistent with PA. It then explores the changes in originalism in recent years and some of the different types of originalism. It then explains how several constitutions throughout the world, that do not explicitly allow PA, might or might not, depending upon the details, be understood to require or permit PA.