[Editor’s Note: In this special installment of I•CONnect’s Review Series, Jud Mathews offers a critical review of the I•CON debate between Luc Tremblay and Matthias Klatt on proportionality-based balancing. The debate appears in the current issue of I•CON, beginning with Tremblay’s paper here, followed by a reply by Klatt here, and concluding with a rejoinder from Tremblay here. All three parts of the debate are available in full-text for free.]
Review by Jud Mathews of I•CON Debate on Proportionality-Based Balancing
—Jud Mathews, Pennsylvania State University, Dickinson School of Law
Proportionality and the Relevance of Rights
It is now well known that proportionality-based balancing has become the dominant approach to the judicial review of legislation that limits constitutional rights. But has proportionality outgrown rights? In other words, are specific constitutional rights—as opposed to, say, a general right to proportional treatment—necessary, or desirable, once courts have adopted proportionality analysis?
This issue looms over the spirited and enlightening debate that Professors Luc Tremblay and Matthias Klatt carry on in the pages of I·CON. Professor Tremblay argues that proportionality is best justified with reference to a model of the optimization of values in conflict, which eschews the language and reasoning of rights entirely. Professor Klatt counters that proportionality is flexible enough to permit courts to optimize values while at the same time giving special solicitude to those most important values represented by rights, and he disputes Tremblay’s claim that rights-free optimization is normatively superior.
In this short comment, I weigh in on the Tremblay/Klatt debate, and make a case for the continued relevance of rights in proportionality balancing. I second Klatt’s critique of Tremblay’s claim that rights-free optimizing is superior because it is neutral with respect to competing worldviews, and supplement it with a critique of my own. I then briefly outline how rights’ heuristic value can make a positive contribution to proportionality analysis and constitutionalism more broadly.
Unhappily, one subject of disagreement between Tremblay and Klatt is terminology. Tremblay introduces two ideal-type conceptions of proportionality: the priority of rights model, and the optimization of values in conflict model (henceforth the optimization model). For Tremblay, the priority of rights model is one in which rights have some priority over other values: they are not necessarily absolute trumps, but they merit a measure of extra consideration relative to non-rights, in virtue of their status as rights. Tremblay considers Klatt an adherent of the priority of rights model. The optimization model, by contrast, is for Tremblay one in which every value—whether right-based or not—is “optimized,” meaning realized to the greatest extent possible, in light of the whole factual and legal context, which may include competing values that also require optimization. As conceived by Tremblay, rights have no special claim in the optimization model: all values are accorded the same abstract weight.
Klatt denies that he subscribes to the priority of rights model, but this is because he disagrees with Tremblay on what the priority of rights model is. Klatt defines the priority of rights model more strictly than Tremblay, as a conception in which rights function as what he calls “strong trumps”: they necessarily prevail over any non-right values. By contrast, Klatt defines the optimization model more flexibly than Tremblay. For Klatt, the optimization model does not exclude the possibility that rights may enjoy some special consideration short of absolute priority: rights may automatically trump non-constitutional values, for instance, and when balanced against values of constitutional stature, rights may receive greater weight in the abstract.
In the face of this semantic standoff, and at the risk of sowing further confusion, I introduce some terminology of my own, which I believe captures the core difference between Tremblay and Klatt. What I call “rights-free optimization” is a conception of proportionality that in no way privileges rights over other values: rights have no special normative status, no trumping force or extra weight, in virtue of being rights. This is the conception that Tremblay advocates. I call the conception of proportionality that Klatt defends “rights-conscious optimization.” In this model, balancing analysis can privilege rights to a greater or lesser degree over non-right values, without treating them as strong trumps. The approach to adjudication that does treat rights as strong trumps—as indefeasible, categorical entitlements that admit of no balancing against other values—can be called “rights absolutism.” Rights absolutism has no takers in the Tremblay/Klatt debate, and few in the wider world, so I don’t discuss it further.
The core of Tremblay’s case for rights-free optimization is this. Rights-free optimization better respects the moral equality of persons, because it is neutral as between different values or goods in a way that any regime that prioritizes a preferred set of rights cannot be. A rights regime implies making choices on questions of political morality, and “no court should read a constitution in terms that take sides on fundamental controversial substantive issues, unless the reading complies with the principle of impartiality.” A reading of the constitution complies with the principle of impartiality for Tremblay if it presumes the equal validity of the views, values, and worldviews of all persons.
Tremblay’s rights-free optimization spares courts the need to choose sides by means of a subjective turn, in effect outsourcing problems of valuation to those affected by the challenged measures. A court need not “take side in advance on abstract legal, moral, philosophical, or religious issues.” Rather, “[a]ll particular claims, interests, and values as well as their philosophical or religious underpinning, have the same status: they are on an equal footing and their relative weights are examined in context, notably from the point of view of those who are directly affected by a conflict of values.” The proportionality principle itself is “strictly procedural”: all substantive content for the court’s analysis is furnished by those with affected interests, as conveyed to the court by the litigants. For their part, judges “can avoid most of the difficult epistemological and normative questions that have obsessed generations of constitutional theorists.”
I share Klatt’s skepticism that rights-free optimization can in practice be strictly neutral—that it can, in effect, permit judges to hand down judgments without ever having to pass judgment on the values, interests, beliefs, or legal theories implicated in a dispute. Even if a court refuses to privilege certain interests as constitutional rights, it is only postponing the value-laden choices it inevitably must make: ultimately, a court must weigh the competing claims to reach a decision in favor of one party. As Klatt notes, “‘balancing is an instance of moral reasoning,’” and a court’s reasoning is unlikely to be equally congenial to all worldviews. There is no getting around the necessity of judgment by declining to choose ex ante which interests to privilege as rights; in the words of Tremblay’s countryman Neil Peart, “if you choose not to decide, you still have made a choice.”
Tremblay’s response is that a court need not impose its own judgment, but instead can conceptualize what is at stake in a case from the perspectives of those affected by it. Even assuming that this is something a court is capable of doing, I argue that this move is ultimately unavailing: that rights-free optimizing still does not respect the moral equality of persons in a way that rights-conscious optimizing cannot. Tremblay’s most demanding egalitarian condition is that decision-making practices “must not confer in advance more consideration or weight to [certain persons’] claims, interests, or views than to those of others.” But the subjective turn Tremblay posits fails this test, because it is itself more compatible with some worldviews than others.
Suppose someone takes the view that obedience to God is the highest law, and that blasphemy is a grave offense against God, and so concludes that blasphemy should be harshly punished. To determine whether it is permissible to criminalize blasphemous speech, Tremblay’s approach counsels weighing the speaker’s subjective interest in free expression against the believer’s subjective interest in upholding God’s law. But while this procedure might adequately capture the speaker’s stake in the matter, it fails entirely to respect the believer’s worldview on its own terms. To the believer, what is at issue is not a personalized harm, but an unyielding and nonnegotiable divine imperative.
Tremblay’s rights-free optimization is formally neutral between worldviews, but it is not substantively neutral, which is to say, the procedure is not equally acceptable from the vantage point of all worldviews. Illiberal perspectives in particular are ill-served by a procedure that subjectivizes and balances harms to resolve disputes, precisely because these perspectives reject the embrace of pluralism that this practice presupposes. In other words, judged against the most exacting standard of neutrality, rights-free optimization slights those same perspectives that Tremblay claims are shortchanged by rights-conscious optimization.
Ultimately, then, I join Klatt in rejecting Tremblay’s argument that rights-free optimization is preferable to rights-conscious optimization because the former achieves a neutrality that the latter cannot. But even if rights are not affirmatively harmful in proportionality-based balancing, are they perhaps superfluous, or obsolete? Can a charter of enumerated constitutional rights offer anything that a general right to proportional treatment could not? I believe that rights can make a meaningful contribution to proportionality review and to a constitutional culture, and in the few words of this comment remaining, I sketch out one set of claims in this line, relating to the heuristic value of rights.
The content of a rights charter conveys information to numerous audiences about how certain interests are to be valued in a given political community. Rights help actors both inside and outside of the state coordinate their behaviors around a set of shared norms. For a court, rights can serve the function that Klatt identifies, selecting out a subset of values deemed most important to receive extra weight in the balancing analysis (or to prevail automatically against non-constitutional interests). This is an important function, because it means courts’ decisions over time will more predictably align with a polity’s normative commitments than they would if judges were to assign weights to competing values exclusively by their own lights, on a purely ad hoc basis.
Moreover, rights can have positive spillover effects on public institutions outside of courts. A charter of rights puts officials on notice: it signals that certain interests will receive prima facie protection against interference. This signal will predictably induce officials to tread carefully in these particular areas, or else face the strong possibility of being taken to court and losing. The result is that ordinary law will likely reflect the imprint of constitutional values. Even in the absence of litigation, then, rights can shape policy choices in such a way as to promote the flourishing of those interests that fall within the ambit of those rights.
My case for the relevance of rights rests on a premise that Tremblay would reject: that a system of constitutional justice may legitimately pledge itself to some set of values. For my part, I don’t believe that a constitutional order can—or should—remain entirely value-neutral. Proportionality has proved its worth as a tool of constitutional adjudication precisely because it has provided courts with an intelligible and principled method for engaging with collisions of competing values and reasoning from them to defensible outcomes in concrete cases. Rights have long served as constructs that help actors in legal systems to conceptualize, communicate, and coordinate around constitutional values, and they continue to do this important work today.
Suggested Citation: Jud Mathews, I•CON Debate Review: Proportionality and the Relevance of Rights, Int’l J. Const. L. Blog, Feb. 6, 2015, at: http://www.iconnectblog.com/2015/02/i•con-debate-review-by-jud-mathews-proportionality-based-balancing
 This comment also presents me with an opportunity to revisit the relevance of specific constitutional rights to proportionality analysis, which Alec Stone Sweet and I dismissed offhandedly in an articles a few years ago. See Jud Mathews & Alec Stone Sweet, All Things in Proportion? American Rights Review and the Problem of Balancing, 60 Emory L.J. 797, 808-09 (2011).
 Matthias Klatt & Moritz Meister, The Constitutional Structure of Proportionality 16-22 (2012).
 The most prominent being United States Supreme Court Justice Hugo Black.
 Luc B. Tremblay, An Egalitarian Defense of Proportionality-Based Balancing, 12(4) Int’l J. Const. L. 24 (2014).
 Id. at 27.
 Id. (emphasis added).
 Id. at 26.
 Id. at 27.
 Matthias Klatt, An Egalitarian Defense of Proportionality-Based Balancing: A Reply to Luc B. Tremblay, 12(4) Int’l J. Const. L. 10 (2014) (quoting Klatt & Meister, supra note 2, at 53).
 Rush, Freewill, on Permanent Waves (Mercury Records 1980).
 Tremblay, supra note 4, at 11.
 Tremblay is aware of and addresses a similar problem: that the principle of impartiality itself is partial to the moral equality of persons, and is in that sense not fully neutral with respect to all worldviews. Tremblay regards this criticism as “self-refuting,” as it simultaneously accepts and rejects impartiality as the touchstone for legitimacy. Id. at 33. But this is really a problem for Tremblay, not for his critic. It is Tremblay who posits impartiality as the standard, and who defines it in such demanding terms, so that equal regard for all persons means equal regard for all persons’ beliefs and commitments. His own preferred conception of proportionality fails the demanding test he sets out. The fact that Tremblay’s conception of impartiality seems impossible to satisfy is not a reason for giving rights-free optimization a pass on satisfying it, but it may be grounds for questioning whether Tremblay has defined impartiality in a useful way.