Cardozo Journal of International and Comparative Law
Abstract
The article challenges the perception that U.S. constitutional law is overly formalistic, arguing that it often employs pragmatic approaches such as balancing and proportionality review, similar to those used in other countries. The author contends that unmasking these flexible methodologies would make U.S. constitutional law more coherent and enhance the Supreme Court's legitimacy. The analysis highlights how the Court implicitly or explicitly uses balancing in various areas, such as the Dormant Commerce Clause, abortion rights, and the Fourth Amendment, and advocates for a more open and structured proportionality framework.
Disciplines
Administrative Law | International Law | Law
Recommended Citation
Mark S. Kende,
The Unmasking of Balancing and Proportionality Review in U.S. Constitutional Law,
25
Cardozo J. Int'l & Comp. L.
417
(2017).
Available at:
https://larc.cardozo.yu.edu/cjicl/vol25/iss3/2