Academic Journal
BEYOND THE BINARY: TOWARD A NEW GLOBAL MODEL OF CONSTITUTIONAL RIGHTS ADJUDICATION.
| Title: | BEYOND THE BINARY: TOWARD A NEW GLOBAL MODEL OF CONSTITUTIONAL RIGHTS ADJUDICATION. |
|---|---|
| Authors: | Tamir, Oren |
| Source: | Berkeley Journal of International Law; 2023, Vol. 41 Issue 2, p198-296, 99p |
| Abstract: | Both the literature and practice of constitutional rights adjudication around the world strongly suggest that we live in a binary. Only two "models" are realistically available for us to choose from when deciding how to organize systems for adjudicating rights. The first model is proportionality analysis. In this model, which is extremely common around the world, constitutional rights are defined expansively. And Courts then make highly granular and context-specific determinations on defending rights based on a familiar, single, three or four-step protocol. By contrast, the second model is categorical reasoning. In this model, which is primarily associated with the United States, rights are defined much more narrowly. And Courts then review rights claims based on predetermined but varied tiers of scrutiny or bespoke tests which (1) limit the considerations judges are allowed to weigh and (2) are often meant to be rigid and outcome-determinative. Since the domain of constitutional rights in this model is relatively narrow and because some of the outcome-determinative tests judges use under it tend to sharply bias results in favor of the right being protected, the categorical reasoning model is closely associated with Ronald Dworkin's conception of rights as "trumps." This Article argues that the set of choices available to us is broader than the binary. There is another model around which we can choose to organize systems for adjudicating constitutional rights. And this alternative model is importantly distinct from the existing models: on the one hand, it allows systems to combine key elements of proportionality and categorical reasoning in surprising and previously unexplored ways. On the other hand, this new model diverges from proportionality and categorical reasoning along several crucial dimensions, including the degree of deference to political decision-makers it institutionalizes, the judicial technique and remedy for protecting rights it supplies, and this model's consistent focus on protecting rights endangered by governmental inaction. Perhaps surprisingly, the origins of this new model are also found in the US system, much like categorical reasoning. It is just that it operates in a different corner of American public law than the one we tend to focus on: that of administrative law. This Article describes this new "administrative law model" of constitutional rights adjudication, highlights its distinctive features, and identifies its primary strengths and costs. The Article then argues that it is already possible to identify where the administrative law model would prove attractive and should displace the reliance on the existing models, either in whole or in part. Most clearly, the administrative law model seems especially suited for the system from which it originates--the United States. And in fact, this Article suggests that recognizing that this model exists can increase the prospects of achieving meaningful and desirable change in domestic US constitutional law. However, signs of dissatisfaction with the state of constitutional rights adjudication around the world, among other things, indicate that the model could prove attractive also in other domestic jurisdictions, and even at the international level. Going forward, the administrative law model therefore deserves a permanent place in the global and comparative constitutional toolkit. [ABSTRACT FROM AUTHOR] |
| Subject Terms: | CIVIL rights, ADMINISTRATIVE procedure, DEFENSE (Civil procedure), BIAS (Law), REASONING, PUBLIC law, ADMINISTRATIVE law, CONSTITUTIONAL law |
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| ISSN: | 10855718 |
| DOI: | 10.15779/Z381834381 |
| Database: | Complementary Index |
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