American Rights Jurisprudence Through Canadian Eyes

The U.S. Supreme Court's application of varying tiers of scrutiny to different constitutional rights has been widely criticized for severing rights from any clear connection with justice.One school of thought holds that this could be cured by importing or expanding the role for "proportionality analysis" in U.S. constitutional rights doctrines.American proponents of proportionality such as Jamal Greene, Vicki Jackson, and Supreme Court Justice Stephen Breyer have argued that U.S. courts could more transparently respect the connection between rights and justice by following the example of Canadian courts in reasoning about the proportionality of laws as "justified infringements" of rights.Furthermore, proportionality analysis, a kind of "intermediate scrutiny for all," is thought to foster a more reasonable and democratic rights discourse.This Article argues that proportionality analysis may not be the cure its American proponents hope for.Comparisons between American and Canadian constitutional rights cases suggest that proportionality style reasoning conceptually devalues and distorts the connection between rights and justice.In contrast, the alternative concept of rights as absolute relations of justice appears to more transparently value constitutional rights.The Article then turns to the prospective institutional effects of proportionality in the American context.A rough sketch shows that the concept of courts allowing the state to proportionately override rights appears to be as scattered across different American doctrines and tiers of scrutiny as the concept of specifying the scope of rights absolutely.The mixed record of proportionality in U.S. rights doctrines recommends drawing comparisons to Canada, where proportionality is employed under a uniform doctrine.Comparing the effects of proportionality in the U.S. and Canada indicates that this approach institutionally disrupts the democratic settlement of rights disagreements in three ways.First, proportionality analysis appears to inflate the number of rights