An egalitarian defense of proportionality-based balancing

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1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please An egalitarian defense of proportionality-based balancing Luc B. Tremblay* In this article, I argue that there are two distinct conceptions of the principle of proportionality within constitutional law and theory. One comes within what I call the priority of rights model and the other within what I call the model of optimization of values in conflict. The main purpose of the text is to propound an egalitarian defense of proportionality-based balancing, such as it is understood within the model of optimization. After having described the idealtype of each model (Section 2), I argue that the normative justification of the model of optimization lies in the fact that it honors the moral equality of persons in context of pluralism and cultural diversity (Section 3). In particular, I argue that, from this normative point of view, the priority of rights model has become difficult to sustain. The argument is a form of ethical proceduralism : it refers to a procedure by virtue of which the normative validity of the competing models is tested. 1. Introduction In this article, I propound an egalitarian defense of proportionality-based balancing in the process of judicial review of legislation limiting constitutional rights. This defense is grounded in the fact that most contemporary democratic societies are egalitarian, pluralist, and culturally diversified. But there is a difficulty. There are two main conceptions of the principle of proportionality within contemporary constitutional law and theory. These conceptions come within two distinct models of constitutionalism. I call them: the priority of rights model and the model of optimization of values in conflict. These models involve two distinct models of judicial review, the rightsbased model and the proportionality-based model. Since the normative foundation of the principle of proportionality varies according to the models, it is necessary to clarify them. In Section 2, I describe the idealtype of the competing models. 1 In Section 3, I examine the normative justification of the principle of proportionality, as it is understood within the model of optimization of values in conflict. For this purpose, I assume that this model has become a serious competitor to the priority of * Faculty of Law, University of Montreal. luc.tremblay@umontreal.ca. 1 An idealtype is a coherent and abstract representation of a thing that may appear in reality under a confused and incoherent form. The concept of idealtype is adapted from Max Weber s sociology. I CON (2014), Vol. 12 No. 4, doi: /icon/mou060

2 An egalitarian defense of proportionality-based balancing 865 rights model within contemporary constitutional discourse and practice. 2 The normative justification, I argue, lies in the idea of moral equality of persons in the context of pluralism and cultural diversity that forms the legal, political, and social environment of contemporary democratic societies. The argument is a form of ethical proceduralism : it refers to a procedure by virtue of which the normative validity of the competing models is tested. 2. Two conceptions of the principle of proportionality Within constitutional adjudication, the principle of proportionality serves as a general test of validity of laws limiting constitutional rights. This process is generally conceived as having two stages. In the first stage, the court verifies whether a challenged law limits a constitutional right. If it does, then, in the second stage, the court verifies whether the limitation is justified. An infringement is justified at two conditions. First, the legislative objective (purpose, end) must be legitimate, proper, or sufficiently important. This condition may be called the legitimacy test. Second, the relationship between the means and the ends must satisfy the principle of proportionality. This is the proportionality test. Its formal structure provides three criteria or subtests: (i) There must be a rational connection between the means chosen and a legitimate governmental objective. This is the rationality or suitability test. (ii) The limitation of a right must be necessary to achieve the objective. This is the necessity or minimal impairment test. (iii) The harm (cost, burden, sacrifice) caused by the limitation must be proportional in a strict sense to the benefit (gains, good) it contributes to produce. This is the test of proportionality in a strict sense (stricto sensu) or proportionality in a narrow sense. It is also referred to as the balancing test. At the moment, there is no consensus on the specific function, content, desirability, or ground of the various tests of justification. So, the conditions that a legislation limiting a constitutional right must satisfy in order to be justified and, accordingly, constitutionally valid remain deeply controversial. The disagreements are particularly intense with respect to the balancing test. One reason lies in that two distinct conceptions of the principle of proportionality are mixed-up in cases and literature. These conceptions come within two distinct models of constitutionalism: the priority of rights model and the model of optimization of values in conflict. Since they are not always disentangled, judges and scholars are often talking past each other. In this section, I describe the idealtype of each model. They are meant to reconstruct the basic assumptions underlying the discourse and practice of proportionality in constitutional rights adjudication. They do not purport to represent the views of one specific 2 My concern is normative and conceptual, not descriptive or comparative. On the practice of proportionality, see, e.g., Alec Stone Sweet & Jud Mathews, Proportionality, Balancing and Global Constitutionalism, 47 Colum. J. Transnat l L. 72 (2008); Robert Alexy, A Theory of Constitutional Rights (2002); David M. Beatty, The Ultimate Rule of Law (2004); Aharon Barak, Proportionality. Constitutional Rights and Their Limitations (2012).

3 866 I CON 12 (2014), scholar, judge or court and none of them claims to manifest itself under this form in cases or literature The priority of rights model The first conception of the principle of proportionality comes within a model of constitutionalism that confers normative priority to constitutional rights over competing norms, values and interests, such as administrative convenience, sexual morality, religious conformity and other social goals based on utility and the perfection of individuals. I call it the priority of rights model. Its constitutive propositions can be stated as follows. First, this model responds to what might be called a principle of priority. All political values (interests, concerns, ideals) do not have the same importance or weight in the abstract, even if they have the same formal legal status. Rights are meant to protect and promote the vital, urgent, or fundamentally important human interests. So, in principle, they are more important or weightier than non-rights values. But they may not all have the same importance or weight (the right to life versus the right to publish a novel, for example). There is an order of priority, lexical or otherwise, between rights and non-rights and between rights themselves. Second, if there is a conflict between a right and a competing value, the right should prevail in principle, unless it can be shown that the competing concern is sufficiently strong to override or limit the right. If the right is absolute, it can never be limited or overridden. If it has an inviolable core, it is absolute to the extent of the core. If it is quasi-absolute, it can never be limited or overridden, unless respecting them would produce a catastrophe or a harm of exceptionally high magnitude, such as a state of affairs in which the whole system of rights could be destroyed. If the right is nonabsolute, it cannot be limited or overridden, except by special competing concerns that are, in principle, at least as important or weighty as the rights themselves, such as the rights of others, national security, public health, public order, and so on. Accordingly, no law can legitimately limit or override a right, unless the values or concerns supporting it are sufficiently strong to prevail over the right. One might say that rights block all legislative infringements that are not justified by a good reason. They function in ways that are similar to what philosophers call trumps, side-constraints, fire-walls, shields, and the like. 3 Third, the priority of rights model logically postulates the objective existence of rights and, for the purpose of representing them, a coherent substantive theory of rights. This theory expresses the ideal measure of legitimate laws. It is necessarily complex. It must indicate the nature of the vital, urgent, or fundamentally important human interests that should be protected or promoted. It must formulate them at the correct level of abstraction and generality in terms of abstract or concrete rights. It must fix the scope of each right, either in terms of the values that constitute their 3 See Ronald Dworkin, Taking Rights Seriously, at xi (1977) (trumps); Robert Nozick, Anarchy, State, and Utopia (1974) (side-constraints); Jürgen Habermas, Between Facts and Norms (1992) (firewalls); Frederick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415 (1993) (shields).

4 An egalitarian defense of proportionality-based balancing 867 core and their periphery or in terms of protected and excluded specific interests. It must establish the abstract weight of each right, notably in relation to all competing concerns, and determine which one are absolute, quasi-absolute, and non-absolute. Correspondingly, the theory must indicate the kinds of considerations that are never legitimate or always excluded, and those that are sufficiently strong to override or limit quasi-absolute and non-absolute rights. It must fix the correct balance between competing rights and values or the conditions at which the proper balance must be established. It must indicate who are the right-holders and who are the specific addressees. A complete theory must also supply a good justification for the foregoing in terms, for example, of deontological, consequentialist, prudential, or legal reasons, or of any combination of these. For the purposes of constitutional adjudication, the judges must also postulate the validity or truth of one coherent substantive theory of rights on the basis of which they can rationally determine when a right is limited or overridden and, the case being, when the legislative objective is strong enough to justify the limitation. Otherwise, their decisions would be arbitrary. Since the nature of such a theory is assumed to have an explicit or implicit constitutional foundation, its construction is a matter of constitutional interpretation. Fourth, the priority of rights model entails that the pivot of a good justification of a limitation lies in the legitimacy test. Since no infringement can be justified unless there is a sufficiently strong reason to do so, the main inquiry concerns the normative weight of the legislative objectives that constitute the reason of the law. The proportionality test has no independent normative significance. It is important, but only as a refinement of the legitimacy test. It is not appropriate where an infringed right has categorical priority, such as when a right is absolute, when a law limits a right s inviolable core, or when the legislative objective is illegitimate in principle or expresses an excluded reason. The main function of the proportionality test is to determine whether a legitimate reason to limit or override a right is strong enough to justify, support, or cover the actual infringement in the circumstances of a specific case. The point is analytical: a legitimate reason cannot justify an infringement beyond the ambit of what it can logically and materially support or cover. The three subtests of proportionality derive from these ideas. The objective of a law cannot justify an infringement that does not rationally or materially contribute to its realization (rationality test). An objective cannot be sufficiently strong to justify an infringement that is not necessary to realize it. If there is an equally efficient means that avoids the infringement or that is less drastic, rights have priority (necessity test). Similarly, a legislative objective cannot justify the totality of an infringement if the intensity of the harm is excessive in comparison with the importance of the benefit gained by the realization of the objective. It is not strong enough to support or cover the portion of the infringement in excess (proportionality in a strict sense test). Fifth, the content of constitutional rights (first stage) and of the kinds of legislative objectives or concerns that are legitimate for the purposes of the legitimacy test (second stage) is defined, formulated, or expressed in terms of specific categories, concepts, or norms and determined in abstracto on the basis of substantive standards or purposes generally constitutive of or underlying a normative conception of a constitutional

5 868 I CON 12 (2014), democracy. In turn, the defining categories, concepts, or norms must be universally applied to all cases that formally satisfy their conditions of application. This may require specifications in terms of more specific categories, concepts, or norms. To determine whether the conditions of application of the constitution are satisfied, the judges must characterize the challenged law, the facts of the case, or both, in order to subsume them under the relevant antecedent constitutional categories, concepts, or norms. The process needs judgment and interpretation in order to discern the category or norm that correctly applies to the cases. For this purpose, the judges must take all the legally relevant empirical considerations into account. In certain cases, they might take into consideration the subjective significance a given infringement has for those who are affected, but such consideration would constitute only one further element to be characterized and subsumed under the relevant preexisting constitutional category. For example, a judge might examine the subjective understanding a kirpan has for a Sikh in order to subsume it under an antecedent specific constitutional category that determines whether a kirpan falls within the category of religious symbol or of dagger. The process of constitutional reasoning, thus, tends to be formal, conceptual, and abstract, which does not mean easy and mechanical The model of optimization of values in conflict The second conception of the principle of proportionality comes within a model of constitutionalism that confers no normative priority to rights over competing considerations, norms, values and interests; not even over administrative convenience, public interest, sexual morality, religious conformity and other social goals based upon utility and the perfection of individuals. I call it the model of optimization of values in conflict or, in brief, the model of optimization. Its constitutive propositions can be stated as follows. First, the second model responds to what might be called a principle of optimization. All political values (interests, concerns, ideals) have the same normative status in the abstract, even if they do not have the same formal legal status. There is no order of priority, lexical or otherwise, between rights and non-rights values or between rights themselves. Each value must be optimized. Second, if there is a conflict between a right and a competing value, say another right, an individual or collective interest, a social or constitutional objective, or a basic standard, both values must be optimized in context, taking all the circumstances of the case into consideration. It follows that there is no absolute or quasiabsolute right and no inviolable core. A right can always be limited by a competing value in context, provided that both values are realized as much as possible, given the relevant facts and law. The conflicting values must always be harmonized in context and none can be totally realized to the detriment of the other. One might say that rights must always be balanced with conflicting values. They function in ways that are similar to what certain philosophers call principles, that is, optimization requirements. 4 4 See, e.g., Alexy, supra note 2, at

6 An egalitarian defense of proportionality-based balancing 869 Third, the model of optimization does not postulate the objective existence of rights and, for this purpose, one valid substantive theory of rights or values expressing the ideal measure of legitimate laws. The model does not deny that many citizens, politicians or philosophers believe that rights are objective or that one particular theory is universally valid, but it does not assume the truth of these beliefs. For the purposes of judicial review, the judges do not need to postulate the validity or truth of one substantive theory of rights or values fixing in the abstract the good or correct balance between rights and non-rights values and do not need to use the process of constitutional interpretation to this end. Fourth, the model of optimization entails that the pivot of a good justification of a limitation lies in the proportionality test. Since all political values must be optimized to the greatest possible extent, the main inquiry concerns the proportionality between the degrees of realization and non-realization of the conflicting values in any given situation. Proportionality is a test of the optimization of values in conflict. The legitimacy test has no independent or foundational normative significance. It is important, but merely as one component of the proportionality test. Its main function is to determine the nature of the abstract value that the legislature seeks to realize. The three subtests of proportionality derive from these ideas. A limitation of a right that makes no rational or material contribution to the realization of its objective prevents the value underlying the right to reach its optimal effect (rationality test). A limitation that is not necessary to achieve a legislative objective prevents the sacrificed values to reach its optimal effect (necessity test). In both cases, the government could realize the value underlying the legislative objective to the same degree without limiting the realization of the value underlying the right. Finally, the intensity of the harmful effect caused by a limitation of a right must not be excessive in comparison with the importance of the benefit produced by the realization of the objective (proportionality in a strict sense). A disproportionate limitation would not balance the conflicting values in a way that allows each of them to reach their optimal effect. Accordingly, the more an infringement on a right is serious, the more the realization of the competing value must be important. Fifth, the content of the constitutional rights (first stage) and of the kinds of legislative objectives or concerns that are legitimate for the purpose of the legitimacy test (second stage) is defined, expressed, or formulated in terms of very general values and concepts that can include every specific interest or concern that plausibly fall within their scope. Moreover, it is determined in concreto on the basis of the subjective significance the relevant rights or legislative objectives have for those who are affected by a law. Accordingly, the scope of the rights and of the legitimate legislative objectives is flexible and progressive and it can be very broad. In turn, the general values and concepts are not necessarily applied in the same way to all cases that formally satisfy their conditions of application. To determine whether the conditions of application of the constitution are satisfied, the judges examine the law and the facts of the case, determine the concrete conflict of values, and assess the proportionality relationships between the objective and the limitation by taking into consideration the relevant features of the particular situation, including the probable consequences produced by

7 870 I CON 12 (2014), the limitation and the subjective significance it has to those who are affected by it. The process of constitutional reasoning tends to be substantive, pragmatic and contextual: the probability and the credibility of the factual allegations, as well as the sincerity of the parties, tend to be the main focus of the judicial inquiry. For example, if a judge examines the subjective understanding of a kirpan for a Sikh, it is not to subsume it under an antecedent specific constitutional category determining in advance whether a kirpan is a religious symbol or a dagger. It is to determine the content and scope of freedom of religion and its concrete importance in the case. She may also take into consideration the subjective understanding that a kirpan has for those who intend to prohibit it in certain place. But it is not to subsume their objectives under a specific constitutional category, concepts or norms fixing in advance the kinds of purposes that are legitimate and those that are not; it is to determine the value at stake, say secularism or security, and its concrete importance in the case Conclusion The priority of rights model and the model of optimization of values in conflict are often mixed-up in cases. While the judges regularly apply the principle of proportionality, it is not always clear which one underlies their decision. The same opinion may approach the first stage in accordance with the priority of rights model but conceive the second stage in accordance with the model of optimization. Or it may use the rhetoric of one model while actually applying the standards of the other. In certain cases, it produces no consequence. In other cases, it is a serious source of confusion that may hide the main source of disagreements among the judges. 5 Similarly, in many papers, the two conceptions are often mixed. A same argument may move from one conception to the other without notice or suggest that they entail one another or that they participate in one single conception. 6 It could be attractive, then, to consider the views that cannot be reconciled as mistaken. 7 Yet, when they are debating, scholars are often at cross-purposes: an objection that might be perfectly valid against one conception of proportionality might be irrelevant against the other, as if one criticized the structure of a boat on the ground that it did not allow it to fly. 8 One point should be clear: the two conceptions are not compatible. Either the rights have normative priority over competing values or they don t; either they are subject to balancing, or they don t. By disentangling the competing conceptions, one might hope clarifying the actual state of constitutional discourse and practice and understanding the reason why the principle of proportionality tends to become the decisive test within the process of constitutional adjudication. 5 See, e.g., Alberta v. Hutterian Brethren of Wilson Colony [2009] 2 SCR See, e.g., Barak, supra note 2, esp. chs. 2 and 12; Kai Möller, Proportionality: Challenging the Critics, 10 Int l J. Const. L. 709 (2012); Matthias Klatt & Moritz Meister, Proportionality A Benefit to Human Rights? Remarks on the I-CON Controversy, 10 Int l J. Const. L. 687 (2012). 7 See, e.g., Charles-Maxime Panaccio, Book Review, 8 Int l J. Const. L. 988, 993 (2010). 8 For example, in an important criticism of Alexy s logical thesis that rights as optimization requirement implies balancing, Möller opposes the moral thesis that rights as optimization requirement properly understood may imply the priority of rights. See Kai Möller, Balancing and the Structure of Constitutional Rights, 5 Int l J. Const. L. 453 (2007).

8 An egalitarian defense of proportionality-based balancing The justification of proportionality The priority of rights model expresses one basic tenet of liberal constitutionalism. It also probably expresses the main considerations justifying the entrenchment of rights into most contemporary democratic constitutions. So, it should come as no surprise that the strongest objections against proportionality-based judicial review have been launched from the point of view of the priority of rights model. 9 Yet, the fact that the principle of proportionality has become the dominant test of constitutional validity of legislation limiting rights suggests that the process of constitutional adjudication might actually uphold the model of optimization. But by virtue of what normative considerations could it proceed from this model? The principle of proportionality is rarely mentioned in constitutional texts. Where it is mentioned, it does not explicitly require balancing rights and non-rights values. Arguably, the idea of optimizing conflicting values is appropriate when the values have the same normative weight or the same formal status, such as two fundamental rights, two ordinary interests, or two unwritten constitutional principles. But it seems quite inappropriate if one value is a fundamental right (life) and the other an ordinary interest (having a cinema in my street) or if one value is constitutional and the other legislative. Applying the model of optimization in cases in which a constitutional right is at stake appears doubtful, not to say morally repugnant. It seems to contradict one basic tenet of the liberal constitutionalism and the most probable reason why many democratic societies have entrenched certain rights in their constitution. The question then is this: why should proportionality, such as it is understood within the model of optimization, be the dominant criterion of validity of legislation limiting constitutional rights, notably at this moment of history? What, if anything, may constitute its normative foundation? What, if anything, could confer normative force to proportionality-based balancing? In what follows, I offer one general answer to these questions Two assumptions The argument is based upon two assumptions. The first assumption is the moral equality of persons. Contemporary democratic societies recognize that all human beings have equal moral status as persons. 10 In this sense, they are fundamentally egalitarian. This assumption is abstract, but more substantive than the mere assertion of universal human equality. It entails that all human beings matter equally; 9 See, e.g., Stavros Tsakyrakis, Proportionality: An Assault on Human Rights?, (2009) 7 Int l J. Const. L. 468 (2008); Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement, in Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy 131 (George Pavlakos ed., 2007); Grégoire C.N. Webber, Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship, 23 Can. J. L. & Jurisprudence 179 (2010); Timothy Endicott, Proportionality and Incommensurability, Oxford Legal Studies Research Paper No. 40/2012 (June 11, 2012), available at 10 The word moral may refer to any system of values, ideals, or norms, customary or rational, that exists prior to, or independently of, the positive legal or constitutional order and that is used to create, modify, interpret, evaluate, criticize, etc., the positive law.

9 872 I CON 12 (2014), and since they matter equally, each person must be treated with equal concern and respect. This idea may be interpreted in various ways, but it minimally entails that any process of practical deliberation must be impartial towards those that it may affect. The procedure and/or the fundamental values or principles on the basis of which practical decisions are taken must not postulate that certain persons are intrinsically more important or have more value than others and must not confer in advance more consideration or weight to their claims, interests or views than to those of others. In law, impartiality generally means that a judge must not favor the claims, interests or views of one party for the sole reason that it is a friend, a family member, or someone whose intrinsic value is greater than the others because of certain personal characteristic, such as race, sex, religion, and so on. Judges must administer justice according to law and to established facts, while keeping an open mind to all points of view. Judicial impartiality certainly constitutes one virtue of the rule of law. But the principle of impartiality that concerns us here is more fundamental. Impartiality provides the point of view from which a practical dilemma must be examined in order to accept its resolution as justified from a normative point of view and as having normative force. Within moral philosophy, the impartial point of view is often regarded as one of the (some would say the ) distinctive features of the moral point of view. 11 It is prior to any material standard or criterion on the basis of which a practical decision, judgment or norm can be taken about the relative weight of the competing claims, interests and views. It follows that no distinction between human beings can be justified from a normative point of view unless the reasons can be justified in impartial terms. The principle of impartiality is procedural: it concerns the question how to decide, not what to decide. It can serve either directly as a constraint in a process of practical deliberation or indirectly as a test of the normative validity of particular decisions, judgments, actions, practices, or principles. Since it embodies, expresses, and realizes the idea of equal of concern and respect, the prin ciple of moral impartiality honors the moral equality of persons. It is this fact that confers a special moral status to the procedure and the normative force to its outcomes. The moral equality of persons conditions the legitimate exercise of political power and coercion. A legitimate state must treat all citizens with equal concern and respect. This does not necessarily mean equal treatment in the sense that all citizens should have the same burdens and benefits (equal tax, equal military service, equal vote, equal education). It means that the political decisions and norms, including the judgments about the relative worth of the individuals and of their claims, must be justified in terms of standards, norms, criteria, and procedures that are consistent with the principle of impartiality. Insofar as the constitution purports to guarantee the legitimate exercise of political power and coercion, the constitutional arrangement must be the result of, or be validated by an impartial process of deliberation. One way to test the normative validity of a constitution consists in verifying whether all citizens who live under it can endorse the set of institutions, procedures, principles and values that it establishes, that is, whether it can be justified to all those living under it 11 See, e.g., Kurt Baier, The Point of View of Morality, 32 Australasian J. Phil. 104 (1954).

10 An egalitarian defense of proportionality-based balancing 873 (the endorsement can be hypothetical, empirical or somewhere in between). All the citizens must be capable to see the constitution of their political community as their constitution. The second assumption is the fact of pluralism and cultural diversity. 12 The fact of pluralism emphasizes the plurality of personal ethics, ideals and worldviews and the fact of cultural diversity emphasizes the plurality of ways of life and culture. Contemporary democracies acknowledge the fact that conflicting conceptions of the good life and ideals, religious and secular worldviews, ways of life and cultures co-exist in their society and that the people are deeply divided on their ultimate representations that give meaning to their world, life and personal or collective identities. They do not postulate that these views, ways of life, and cultures are perfectly self-contained, totally independent, or mutually exclusive. But they recognize that religious fundamentalists may coexist with radical atheists, right-wing nationalists with cosmopolitans, or indigenous views of the sacred with materialist views. Moreover, they tend to believe that this characteristic constitutes one of their permanent features. 13 The fact of pluralism and cultural diversity might accelerate with the influx of immigration from regions with radically diverse cultures, the effect of globalization, and the new means of communication. But they are unlikely to disappear given what philosophers call the burdens of judgment 14 and, more fundamentally, value pluralism. 15 The burdens of judgment refer to the sources or causes of the difficulties in arriving at agreement on ultimate ends and values, on the way to balance them, on their place in our way of life, on the strength of peoples claims against our claims, against one another, and on our institutions and practices. They constitute epistemological obstacles in the process of justifying our fundamental beliefs. They include conflicting and complex empirical and scientific evidence and normative considerations, disagreements about the weight of agreed considerations, conceptual vagueness and indeterminacy, the way our total experience shapes our evaluation, and so on. 16 Value pluralism goes deeper. It claims that human values, ends or goals are not only plural, but that some of them are equally ultimate, absolute, perpetually conflicting, incompatible, and incommensurable: they cannot be reduced to each other or in terms of one super value or common currency or to be graded on one scale. As Isaiah Berlin put it, the possibility of conflict and of tragedy can never wholly be eliminated from human life, either personal or social. The necessity of choosing between absolute claims is then an inescapable characteristic of the human condition. 17 Moreover, even when human beings agree about what values or goods have priority, these values or goods may make incompatible and incommensurable demands. If true, then the fact of pluralism and cultural diversity would not necessarily result from the weaknesses 12 The fact of pluralism goes beyond what Rawls called the fact of reasonable pluralism. See John Rawls, Political Liberalism (1993). 13 Id. at Id. at See, e.g., Isaiah Berlin, Two Concepts of Liberty, in Liberalism and Its Critics 15, (Michael Sandel ed., 1984). 16 See Rawls, supra note 12, at See Berlin, supra note 15, at 31.

11 874 I CON 12 (2014), of human reason, error, ignorance, or bad faith. They would probably be inescapable in any society that is not too oppressive. One of the main challenges of contemporary constitutional democracies, thus, is to honor the equal status of persons in a context in which a plurality of conceptions of human flourishing, worldviews, ways of life, and cultures coexist. 18 How should we answer it? The most influential solution within liberal democracy has been to uphold the priority of rights model. However, this solution has become difficult to sustain The priority of rights model It is generally assumed that a constitution upholding the priority of rights model establishes an ordered procedure by virtue of which the coercive power of the state is made legitimate. But this assumption cannot be valid unless the constitution can be justified in terms of impartiality. According to one view, the legitimacy could lie in the fact that the process of constitution making has been concluded by an agreement among all the participants. The agreement would prove, not only the existence of an original consent, but also the impartiality of the process. Accordingly, the resulting constitution would be impartial in its own right. But this view is weak. Even if most constitutions claim, explicitly or implicitly, to express the will of the People, few of them, if any, have emerged from a process that has treated all (potential) citizens in a fair and impartial manner. This criticism is not new. In most cases, certain social groups have been excluded from participation, not been consulted or represented, or not even been regarded as (potential) equal citizens (women, aboriginal peoples, linguistic minorities, traditional religious people, for example). The framers or founding fathers of modern democratic constitutions have generally ignored the fact of pluralism and cultural diversity in favor of an imagined homogenous community, the nation or the people, or of an abstract conception of the citizen. The idea that an original people could have spoken in one voice on the behalf of all citizens has probably always been an abstraction or a fiction and the expression of its will a mere generalization from the particular views of a dominant group or of its representatives regarded as universal. 19 According to another view, the legitimacy would lie in the fact that a constitution upholding the priority of rights model is impartial in its practical implications: it applies one system of basic rights equally to everyone, it protects each individual against governmental arbitrariness and interferences with their fundamental interests, and it maintains governmental neutrality towards the competing conceptions of the good and worldviews indeed, the cultures of citizens. Since the constitution would treat each person with equal concern and respect, it could be validated by some consensus (social, reasonable, overlapping) among free and equal citizens. However, this view has a problem. 18 This postulate is similar to, but somewhat broader than, Rawls s problem of political liberalism. See Rawls, supra note 12, at xxv. 19 See, e.g., Bernard Yack, Popular Sovereignty and Nationalism, 29 Pol. Theory 517 (2001). In the United States, only about five percent of the population voted on ratification. See Max Lerner, Constitution and Court as Symbols, 46 Yale L.J. 1290, 1296 (1937). In Canada, the Province of Quebec has not ratified the Constitution Act 1982, yet.

12 An egalitarian defense of proportionality-based balancing 875 The priority of rights model asserts at least four basic postulates. First, there is a list of human interests and values that are more basic, vital, urgent, or fundamentally more important than all others in human life. It includes, for example, autonomy, physical integrity, self-respect, self-fulfillment, rational examination of all beliefs (traditional, cultural, religious, and scientific), freedom of religion, freedom of expression, freedom to choose with whom to get married, freedom to choose a profession, freedom to seek truth, and so on. Second: the list is relatively short. The idea that all human interests and values could have normative priority is absurd and the more the list is expended, the more it tends to include interests and values that are ordinary and the more the priority of rights model becomes incoherent, indeed irrelevant. Third: the list is objective. The set of values and interests are objectively and truly basic, vital, or urgent in human life. Fourth: the list is universal. The set of fundamental values and interests are the same for all people, either as human being or as member or citizen of a liberal democracy, independently of the sex, race, religion, ethnic origin, etc. These postulates explain why certain interests have a special normative status and why they deserve to be protected as constitutional rights. They would have normative priority, not primarily as legal norms, but as moral entities or moral rights that each citizen would possess against the state. Accordingly, these interests would be prior and superior to the state: rights would not be conferred; they would be recognized by the constitution. Moreover, these postulates embody some philosophical views about what it is to be a human being or a moral agent. They embody, for example, the idea that all human beings share certain characteristics, properties, or qualities constitutive of their common nature, such as their capacity to reason, to give moral purpose or meaning to their life, to be autonomous, and to feel pain and suffering, that objectively determine (justify, ground, fix, explain) the set of human interests and values that count as moral rights. Finally, these views necessarily come within deeper philosophical representations, religious or non religious, that make them intelligible, such as the ideas that God created all human beings with a given set of inherent qualities or with a set of natural rights, that all individuals are sacred, that they are born free and equal, that their common humanity is an empirical fact, that their dignity is grounded on transcendental properties, that they are ends in themselves, that they are naturally isolated, independent, or self-sufficient, and so on. Now, many citizens hold views that are in direct conflict with the kinds of individualism, rationalism or universalism embodied in the priority of rights model. Certain persons are deeply skeptical about rights or human nature, others sincerely believe that there is no objective value or fundamental human interest universally valid, and many believe that all values depend on empirical desires, subjectivity, culture, traditions, or customs. Other citizens sincerely believe that faith and tradition are foundational, that taking a rational distance from one s religion or culture is debilitating, that truth consists in giving top priority to the words of the prophets or to their religious duties, that ridiculing a religion is a matter of blasphemy, not of freedom of speech, that they have a moral duty to perpetuate their minority language or culture instead of valorizing cultural freedom, and so on. The various claims relating to reasonable

13 876 I CON 12 (2014), accommodations, religious exemptions from mandatory education, religious courts, polygamy, same-sex marriage, circumcision, federalism and secession, for example, express social dissensus that goes much deeper than the controversial legal and political issues that these claims give rise to. They call into question the legitimacy of certain basic principles of liberal constitutional democracy, such as equality of rights, equality before the law, sex equality, equal dignity, individual autonomy, critical judgment, freedom of speech, cultural homogeneity of a nation, and, indeed, the very idea of one sovereign homogenous people. The foregoing assertions may appear obvious. Yet, many lawyers and scholars keep arguing, as if these disagreements merely reflect ignorance, bad reasoning, social conditioning, obscurantism, or philosophical errors. But they are significant to an assessment of constitutional legitimacy. A constitution upholding the priority of rights model can hardly be the constitution of all citizens of a pluralist and diversified society. It necessarily favors certain philosophical conceptions of human beings, of the good and of the world at the expense of others and, consequently, the citizens who hold these views, such as secular liberals, at the expense of those who are religious fundamentalists, traditionalists, communitarians, or conservatives. To impose such a constitution on all citizens by the coercive power of the state is a denial of equality of respect and concern. It sounds as illegitimate as if the state imposed on all citizens a constitution upholding the views, values, and worldview of one religion. Certain persons are treated as second-class citizens. Moreover, when the courts resolve a constitutional conflict that calls into question certain aspects of the priority of rights model on the basis of the constitution that upholds it, they necessarily take only one side of a fundamental debatable issue and conclude the debate without the need to hear the other side. This is inconsistent with the principle of impartiality. One might object that the absence of a social consensus on the priority of rights model proves nothing, for the model could be the object of a reasonable agreement among free and equal citizens. For this purpose, philosophers have imagined various abstract devices, such as the idea of social contract, original position, or overlapping consensus. 20 But it is far from clear that a pluralist and culturally diversified group of reasonable people trying to find a consensus on the basic scheme of constitutional justice would come up with the priority of rights model. 21 Since the objection suggests that the model has universal validity beyond, and in spite of the fact of pluralism and diversity, it might overlook the burdens of judgment and value pluralism. In any event, the objection would not take the moral equality of persons sufficiently seriously. This has been a common objection against Rawls s original position agreement and overlapping consensus, for example. 22 Since the reasonable agreement would be 20 See, e.g., Rawls, supra note See, e.g., Luc B. Tremblay, Le fondement normatif du principe de proportionnalité en théorie constitutionnelle, in The Limitation of Charter Rights: Critical essays on R. v. Oakes 77 (Luc B. Tremblay & Grégoire C.N. Webber eds., 2009). 22 See, e.g., Bhikhu Parekh, Rethinking Multiculturalism (2000); Samuel Scheffer, The Appeal of Political Liberalism, 105 Ethics 16 (1994); Seyla Benhabib, Deliberative Rationality and Models of Democratic Legitimacy, 1 Constellations 36 (1994); Suzan Moller Okin, Review of John Rawls, Political Liberalism, 87 Am. Pol. Sci. Rev (1993); Stuart Hamshire, Liberalism: The New Twist, N.Y. Rev. Books, Aug. 12, 1993, at 44.

14 An egalitarian defense of proportionality-based balancing 877 hypothetical, it might not reflect the actual claims, interests, and views of all citizens. The case being, what would be the legitimating force of a hypothetical agreement in the face of actual disagreements? In a pluralist and culturally diversified society, constitutional legitimacy cannot merely rest on hypothetical considerations: it must respond to the real voices of the people submitted to the constitution. The ultimate test of constitutional legitimacy, thus, must be (more) empirical; it must be whether each person, given their personal differences, commitments, conceptions of the good, and worldview can endorse the constitution. 23 Alternatively, one might object that the basic function of a constitution is to state in advance the fundamental values of the society on the basis of which the political order and the society should cohere and integrate and the social and political conflicts adjudicated. True, modern constitutions purport to express a top-down normativity. But they also presuppose the political unity of a homogenous people that already agree on the most basic human values and interests, a worldview and epistemology. 24 Indeed, their conception of formal equality has been constructed on this presupposition. But since the idea of one people speaking in one voice is a chimera, the moral equality of persons must be more demanding. One might reply that the priority of rights model and its postulates are nevertheless dominant in many democratic societies. But the model itself rejects the view that the mere fact that certain political, moral or philosophical views are dominant in a society is a sufficient reason to impose it on citizens who do not share it. One might add that a liberal democracy cannot be neutral with respect to its core values and, consequently, must be entitled to enforce them. But this idea would run counter the moral equality of persons. A dominant group, be it catholic, conservative, or fascist cannot legitimately use the state, the constitution, or the judges who interpret it, to impose the core values of their preferred political system on all citizens and say to those who disagree: sorry, but a constitution cannot be neutral with respect to its core Catholic, conservative, or fascist values. The foregoing might be sufficient to understand why upholding the priority of rights model causes a malaise. What the philosopher Bhikhu Parekh said about political philosophy is relevant for constitutional theory. In his view, [A multicultural society] cannot... be adequately theorized from within the conceptual framework of any particular political doctrine which, being embedded in, and structurally biased towards, a particular cultural perspective, cannot do justice to others. This is true of liberalism as of any other political doctrine. Liberalism is a substantive doctrine advocating a specific view of man, society and the world and embedded in and giving rise to a distinct way of life. As such it represents a particular cultural perspective and cannot provide a broad and impartial enough framework to conceptualize other cultures or their relations with it.... [Since certain cultures] contest liberal principles, neither the society nor a theory of it can be constructed on these principles alone. To do so is both unjust, because it denies the legitimate claims of non liberal cultures to participate in decisions relating to the political structure of the wider society, and risky because the resulting structure cannot count on their allegiance Constitutional legitimacy has something to do with the idea of public justification. 24 See, e.g., Ulrich Preuss, Constitutional Power Making for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution, 14 Cardozo L. Rev. 639, 659 (1993); Yack, supra note Parekh, supra note 22, at