Proportionality Principles in American Law: Controlling Excessive Government Actions

Explicit and implicit proportionality principles have been applied in many legal contexts and formulations, but they all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. This book gives primary emphasis to the use of proportionality principles to guide constitutional judicial review of punishment and other intrusive government measures. There is currently no general theory of what normative concepts permit courts to find a government measure unconstitutional on the grounds of excessiveness; different factors are cited in different contexts, only occasionally using the language of proportionality. As a result, courts are not consistent in carrying out their reviewing functions, and hesitate to apply proportionality principles out of concern that such principles lack objective standards suitable for judicial enforcement. But a closer analysis of the diverse judicial review standards reveals more consistent patterns: across a wide range of legal contexts, courts are applying a small number of explicit or implicit proportionality principles. The three most commonly used principles measure the disproportionality of government measures relative to (1) the moral culpability of the person subject to the measure; (2) the likely social benefits of the measure; or (3) less burdensome measures that would achieve the same benefits.