This Article describes and evaluates the evolution of rights doctrine in the United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict over whether, when, and how courts balance rights is omnipresent. Elsewhere, we find that the world¿s most powerful constitutional courts have embraced a stable analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice.
Jud Mathews & Alec S. Sweet,
All Things in Proportion? American Rights Review and the Problem of Balancing,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol60/iss4/1