The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law

Abstract

District of Columbia v. Heller, pertaining to gun control, was addressed by a deluge of articles. However, one important point has been overlooked by commentators: the fact that Justice Breyer, in his dissenting opinion, used the term "proportionality approach" to describe American case law. Proportionality, which essentially requires that rights infringement be proportional to government ends, is the most dominant doctrine in constitutional adjudication in Europe, as well as in an increasing number of countries outside Europe. Interestingly, however, not a single foreign legal authority was cited by Breyer. This could represent a shift in strategy regarding the use of foreign law in American adjudication. Instead of introducing foreign law doctrines in a direct manner, an attempt is made to give them American credentials, thus preventing any criticism over the infiltration of foreign elements into American law. In this article we take note of this shift in strategy in the context of the foreign law debate and we then question of the validity of Breyer's reference to "proportionality" for describing American constitutional law. We argue that Justice Breyer was correct in his contention that a doctrinal framework which is very similar to proportionality is embedded in American constitutional law, namely that of balancing. However, we argue that Breyer has missed noting the important divergence between the respective positions of proportionality and balancing in the American and European legal systems, which stem from their very different historical, cultural, and institutional backgrounds. We also raise the question whether by tossing the term "proportionality" into the American constitutional lexicon Breyer may not have had another aim in mind, namely to create a framework which would bring American constitutional law closer to the thinking and method of operation of European constitutional law. Arguably, such a move should have been done more openly, by making the reference to foreign law explicit rather than implicit.