Proportionality and Justice Breyer’s New Book

The August 19, 2010 issue of the New York Review of Books contains an excerpt from U.S. Supreme Court Justice Stephen Breyer’s forthcoming book, Making Our Democracy Work: A Judge’s View. The excerpt discusses his view of constitutional interpretation in relation to the Supreme Court’s famous case endorsing an individual rights approach to the Second Amendment on gun control, District of Columbia v. Heller (2008). What is interesting about the discussion is his strong advocacy of proportionality analysis, his detailed focus on the facts (including empirical studies), and his pragmatism. Though much of this was apparent in his Heller dissent, it is more obvious now than ever that he is an advocate of the kind of proportionality used by many foreign courts. It’s also intriguing to see a U.S. Supreme Court Justice previewing a new book in such a fashion.