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Friday, August 26, 2011

Absolutism and Proportionality in Canada and the United States

I should say at the outset that I have been critical of Linda Greenhouse on this blog before, and that as a former journalist I was troubled by the incident, now long past, in which Greenhouse marched in support of abortion rights while she was a Supreme Court reporter for the New York Times.  (Most recently, I brought this up when discussing her decision, after leaving her job at the Times, to take a leadership role at the American Constitution Society, which I thought was a mistake.)  I should also say that I've been a vocal critic on more than one occasion of freedom of expression law in Canada.

That said, I must disagree with various premises of a potentially interesting post by David Bernstein at the VC today.  I'm not calling him wrong, exactly.  But I think his major premises are overstated or mistaken, and that those mistakes or overstatements raise some constitutional law questions that are interesting in their own right.  Bernstein quotes from a new online column by Greenhouse in which she writes:

Earlier this month, the American Bar Association traveled north to Toronto for its annual meeting. Doing some homework for a panel I was to moderate, I came upon Section 1 of the Canadian Charter of Rights and Freedoms . . . . Section 1, the “limitation clause,” makes the Charter’s many guarantees subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A Canadian judge assured me that this requirement of “proportionality,” as various European constitutions with a similar principle refer to it, is invoked constantly and forms the basis for Canadian constitutional interpretation.  Proportionality strikes me as worth considering in preference to the arid absolutism that seems to have taken hold of the United States Supreme Court.

Bernstein writes that this view is hard to square with Greenhouse's support for Roe v. Wade, and to suggest (I'm paraphrasing here) that taking the path of proportionality will lead to a dangerous approach to freedom of speech.  

Here's an extended quote: 

Greenhouse is alluding primarily to the Court’s recent First Amendment cases, but surely Roe v. Wade is the most absolutist case the Supreme Court has ever issued, on a variety of levels–it invalidated the abortion laws of all fifty states; created a regime that permitted virtually no regulation of abortion for the next eighteen years, giving the U.S. the most liberal abortion laws in the world; was significantly out of line with public opinion; gratuitously went well beyond what the Court needed to say to rule in favor of Jane Roe; and invented a right to abortion that’s awfully hard to justify based on either the Constitution’s text or American tradition.

So if the principle of “proportionality” should apply to freedom of speech, an explicit and enumerated right, surely the same principle should apply to allow “reasonable” limits on the unenumerated right to abortion. And surely the USSC should interpret reasonableness in the abortion context with the same leniency that the enlightened Canadian Supreme Court has applied to freedom of speech. Right Ms. Greenhouse? Ms. Greenhouse?

I find this an odd definition of absolutism, particularly in this context.  It seems pretty apparent to me, not only from Greenhouse's discussion but from constitutional law scholarship generally, that the contrasting terms here are absolutism as a particular form of constitutional adjudication -- sometiems called categorical adjudication -- and proportionality, a different and more balancing-oriented form of constitutional adjudication.  The contrast is not between widely or narrowly protecting individual rights; either a categorical approach or a balancing test can lead to either outcome.  The fact that Roe invalidated many state laws does not tell us whether the decision engaged in balancing or proportionality, and is thus irrelevant to whether the opinion is "absolutist," in the general meaning of the term in this field (and, specifically, the way Greenhouse uses it in her column); the fact that abortion is poorly rooted in the constitutional text is also irrelevant; so is the state of public opinion.  Those factors might or might not make Roe a bad opinion, but they don't make it an absolutist one.  

Rather, particularly in terms of method, Roe was a proportionality- or balancing-oriented decision.  One hallmark of decisions reached through proportionality rather than absolutist or categorical approaches is their statute-like quality, the way they weigh and sift competing values and come up with some kind of compromise, as a legislature would.  That is the classic criticism of Roe: that it reaches a quasi-legislative compromise through an opaque balancing of interests.  The opinion itself leaves no doubt that it is a balancing-style case, not an absolutist one: "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."  To be sure, it cashes out in a way that places the thumbs on different ends of the scales at different points in the pregnancy: easy to obtain an abortion in the first trimester, much harder to do so in the third trimester.  But the framework is itself quite clearly the result of a balancing test.

I also think Bernstein overemphasizes the idea that the Supreme Court of Canada's freedom of expression jurisprudence leniently interprets "reasonableness" in the proportionality inquiry in a way that, to paraphrase the article he cites, has given dangerous leeway to censors or the "thought police."  I don't want to overstate this criticism; I think Bernstein has good grounds to criticize the Court's approach, and better grounds to criticize what lower courts and, particularly, administrative tribunals have done on their own.  Again, and without wanting to lean on my own credentials, I've written critically about Canadian freedom of expression jurisprudence myself.  But Bernstein's article was written in 2003 and, both before and most certainly after that, the Canadian Supreme Court has written many opinions that are quite protective of freedom of expression--sometimes as much or more so than in the United States.  (It should also be noted that there is always a gap between what the Supreme Court of a country does in this area and what lower courts, agencies, and government officials do; it would take no effort to come up with a laundry list of lower courts and officials in the United States who have been unduly censorious toward speech.  That gap has relatively little to do in practice with whether the high court favors categoricalism or balancing.)  I think there is room for disagreement here.  But I believe Bernstein overstates his case, at least as of the current state of Canadian free speech law, and that Americans (not including Bernstein) who draw all their conclusions about that law from the Butler and Keegstra cases, decided two decades ago now, or from the actions of some of the human rights tribunals are drawning an incomplete picture.     

What seems quite odd, and especially interesting, to me about both Bernstein and Greenhouse's posts is the gulf they perceive between "absolutism" and "proportionality."  There are conceptual differences between them, of course.  But in practice the gulf between them can narrow down to a crack.  Proportionality is not necessarily the same as even or all-things-considered balancing.  Nor is it necessarily without content; at the local level, courts can provide a relatively fixed structure of factors and weights that go into the proportionality decision: consider this, don't consider that, weigh this value heavily and that one very lightly, and so on.  (Note that, to the extent they do so, the courts end up making the proportionality test steadily more categorical in nature.)  Depending on how the proportionality inquiry is conducted, it can be very speech-protective--or not.  

But the same thing can be said of absolutist approaches.  A categorical or absolutist rule of content-neutrality can be very speech-protective.  A categorical rule that all expressive conduct should be treated as conduct and not speech (a rule advocated by Justice Black, the classic First Amendment absolutist), or, to take a more current example, that content-neutral laws are subject to a relatively low level of scrutiny even if they would prohibit vastly more speech than a content-discriminatory law, or that certain kinds of "low-value" speech "constitute no essential part of any exposition of ideas," can be speech-restrictive.  

Just as important, even a categorical or absolutist rule is generally reached only after engaging in . . . well, balancing.  The absolute rule propounded by the Court (or, as it pretends, by the text or history of the First Amendment) generally takes on board, at the moment of its promulgation, a host of considerations concerning various competing claims that need to be balanced.  In setting out the scope of coverage of the rule, the Court has generally already engaged in a proportionality analysis of its own, even if it expresses the result of that analysis in categorical terms.  Nor is the interest-balancing over even then.  As the Court engages in later applications and modifications of the rule, it generally does so in order to incorporate unforeseen circumstances or to redraw the balance, albeit in seemingly categorical terms, in light of changing experiences or views about how the various interests involved should be treated.  I'm not saying that there is no difference between categoricalism/absolutism and balancing.  But there is much less room between them than the standard kind of Manichaean picture suggests.  Proportionality analyses often contain relatively invisible absolutist rules and categories; absolutist or categorical approaches often contain, either at first or as they develop through constitutional common law, a fair amount of invisible balancing or proportionality analysis.  And certainly, whatever the difference between them, it should not be characterized as one of speech-protectiveness (on the side of absolutism) vs. speech-repressiveness (on the part of proportionality).  The two ideas need not overlap much, if at all.  

I should note parenthetically that this last point applies to Greenhouse as well.  I'm a little shocked to see her write as if section 1 of the Canadian Charter of Rights and Freedoms, or the general idea of proportionality, are new to her, given how long she's been writing about constitutional law in a professional capacity.  Even the cosmopolitan Americans among us still often seem fairly parochial.  In any event, while I tend to agree with her that the Roberts Court is pretty "arid" in its approach, I think, for the same reasons I think Bernstein's analysis goes awry, that she is mistaken in concluding that the Roberts Court is, so to speak, absolutely absolutist, or that its seemingly categorical approach to the First Amendment utterly neglects the balancing of interests and consequences.  Whether it admits it or not, it can't neglect those considerations, and it doesn't.

For those interested in a deeper look at these issues, check out Joe Blocher's terrific article on "Categoricalism and Balancing in First and Second Amendment Analysis," or Fred Schauer's piece (one of many in and around this subject by Schauer), "Balancing, Subsumption and the Constraining Role of Legal Text."  (Schauer takes a different view than mine, one that thinks there is real value to the constraining role of legal text.  In general, though, I think he would agree that even absolutist rules at some point effectively incorporate something like proportionality or balancing analysis, and that the two approaches can converge in subterranean ways.)  

Posted by Paul Horwitz on August 26, 2011 at 11:44 AM in Paul Horwitz | Permalink


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For those interested in this debate, Jud Mathews and I have published two articles (available on the selected works site), the first tracking the emergence and diffusion of the proportionality framework as the best-practice standard for rights adjudication around the world, and the second examining the evolution of American rights doctrine through the lenses of proportionality:
-- “Proportionality Balancing and Global Constitutionalism,” Columbia Journal of Transnational Law 47 (2008): 73-165;
"All Things in Proportion? American Rights Review and the Problem of Balancing,” Emory Law Journal 60 (2011): 102-79.

Posted by: Alec Stone Sweet | Aug 31, 2011 4:50:52 AM

"very, very little scope for abortion regulation"

It is unclear, I would say "no" but what do I know, if she would use your definition of the term. Either way, this "very very little" allows:

-- neutral regulations such as physician requirements in the first trimester [and probably some specific to abortions, putting aside parental notification rules, which apply here too]

-- quite a few additional regulations, including many specific to abortion or some limited subset in the second trimester

-- even more for the third trimester

The net result was many regulations. Many were struck down but since a liberty interest of special magnitude was involved, targeting it (like speech) was often a problem. Merely being morally against abortion wasn't enough to allow some costly regulation with no real health value but in place because abortion was deemed immoral.

Posted by: Joe | Aug 29, 2011 1:46:13 PM

I'll grant you that writing that Roe was the Court's "most absolutist" case wasn't the best use of grammar, but the point remains that if Greenhouse thinks that the USSC's recent First Amendment cases were "absolutist" (even though they still allow for various regulations of speech), surely Roe is even more so, because it left very, very little scope for abortion regulation.

Posted by: David Bernstein | Aug 29, 2011 12:56:55 PM

Professor, if you want to invent narrow terminology, it's your prerogative, but that is not the normal definition of the term. Saying "I say so" is a tad bit off; I'm not being hyper-literal here. You are.

Your example as to nudity is not very convincing. A better one would be a general rule that covers the speech itself, such how loud he was talking. And, since speech is involved, even such a neutral regulation might be looked at somewhat more closely, but allowed -- like many regulations of abortion -- in various cases. My example of a medical regulation that applies to three things including abortion is more on point.

Regardless, there ARE "abortion regulations" even my your narrow definition that were upheld. That is, regulations ONLY dealing with abortions. Planned Parenthood v. Ashcroft cites two -- a pathology report and a second physician requirement. Others exist, even if you want to ignore parental notifications and third trimester limits as if any limits there are simply ignored by every medical facility covered.

As to Canada, as applied to abortion, there is no "arid absolutism" since Canada -- like the US -- still allows various regulations of abortion. An "arid absolutism" regarding abortion would be one that would not allow the pathology tests or some special rules regarding parental notification that applies in a special way to abortion.

I am not addressing her application to the 1A, which very well might be problematic in some fashion. My concern is my belief that you are wrong in saying Roe was absolute in its text or application. This is a common trope and it is wrong.

Posted by: Joe | Aug 29, 2011 12:47:40 PM

As for Canada's S.C. and abortion, I'm no expert on the former, but if they indeed protect abortion even more than Roe did, and purport to be applying the relevant "reasonableness" clause, that simply means that Greenhouse is incorrect in thinking that the clause prevents "arid absolutism," if you're going to define absolutism so broadly as to include the USSC's recent First Amendment cases.

Posted by: David Bernstein | Aug 28, 2011 4:05:58 PM

"Prof. Bernstein, an 'abortion regulation' need not be a regulation that applies to abortion alone."

OK, you say so, and I say that in this context, a regulation that applies to all medical procedures is not an "abortion regulation," but simply a broad regulation that happens to also encompass abortion. A law that says that you can't stand on the street naked that is applied to someone giving a public speech isn't a regulation of speech.

Posted by: David Bernstein | Aug 28, 2011 4:03:03 PM

Prof. Bernstein, an "abortion regulation" need not be a regulation that applies to abortion alone. If a medical regulation applies to three things and one of them is abortion, it is a regulation of abortion.

Also, the regulations allowed in Roe could apply just to abortion if there was a medically reasonable reason for them to be so. The parental notification regulations, for instance, at times were specially applied to abortion. Even the partial dissents in Webster accepted the legitimacy of medical tests that would reasonably be used to determine viability.

As to the third trimester, it was not shown that the limits had no effect, particularly given actual practice was that only a handful of providers were available. Also, Planned Parenthood v. Ashcroft upheld a second physician requirement for possible viable fetuses. Was this not enforced either?

The limits on funding apparently don't count. Regardless, it counts for Canada (and a few state courts), which saw it as a violation of the right to choose. It is still unclear how the Canada approach, which again if anything protected abortion rights better according to some experts (cited), would limit abortion rights or how Roe did not allow many 'abortion regulations.'

Posted by: Joe | Aug 28, 2011 12:10:27 PM

It would seem that if Bernstein is wrong to say that Roe is absolutist, then Greenhouse is wrong to say that Arizona Free Enterprise Club is absolutist. So Paul's beef is really with her, Bernstein was just using the labels as she was using them. And furthermore I don't think absolutist *has* to take the meaning that Paul suggests, the Greenhouse/Bernstein meaning is just as plausible.

Posted by: Alex | Aug 27, 2011 12:12:07 PM

"One thing -- Prof. Bernstein said that Roe 'permitted virtually no regulation of abortion,' which as various commentators there said is -- simply put -- wrong."

No, it's not, and the commenters at issue couldn't come up with anything more than (a) allowing SOME of the same regs you would allow for any medical procedure, e.g., licensing of providers and sanitary standards; and (b) third-term restrictions that were in practice unenforceable.

Posted by: David Bernstein | Aug 27, 2011 12:00:36 PM

There is no link, so I'm not sure what "take a leadership role at the American Constitution Society, which I thought was a mistake" was about.

One thing -- Prof. Bernstein said that Roe "permitted virtually no regulation of abortion," which as various commentators there said is -- simply put -- wrong.

Also, whatever the merits of Canada's approach, on abortion, the courts there protected it MORE than here. The ruling that protected the right to choose was better written (which is why scholars like Professor Scott Lemieux respect it so much) and later constitutional rights led the court there to protect abortion funding more than the USSC did under Roe v. Wade.

Thus, I'm unsure -- especially given the long term effects of the Roe approach (that is, a weakening in Casey and so forth) -- how horrified (Prof. Bernstein's taunting aside) Ms. Greenhouse would be if the U.S. followed the Canadian approach here.

Posted by: Joe | Aug 27, 2011 8:31:57 AM

"That is the classic criticism of Roe: that it reaches a quasi-legislative compromise through an opaque balancing of interests."

Paul, this is an interesting post, but I really don't get the sentence above. What you're describing sounds like the classic critique of a lot of Justice O'Connor's jurisprudence, and you can include her contribution to Casey, but not Roe. Roe didn't involve a "compromise." The folks who wanted abortion to be legal under almost all circumstances won a smashing victory. Those who wanted abortion to be illegal under all, almost all, some, or a few circumstances before the third trimester lost, and even those who only were interested in regulating or banning abortion in the 3rd trimester were left with an opinion that didn't provide states with any practical mechanism of doing so. The rhetoric was of compromise and balancing of interests, but it's not like the Court, in practice, gave ANY real weight to the what it purportedly acknowledged was the state's legitimate interest in developing human life.

Note that I'm sympathetic to the result in Roe, and eschew the question of whether it was "correctly" decided. But yes, the factors I mentioned are relevant to Roe's absolutism precisely because they show that the Court was not engaging in pragmatic compromise at all. It would be like saying that that Plessy represented a "compromise" on the issue of segregation, because the Court recognized explicitly that black people thought it to be invidious discrimination.

Posted by: David Bernstein | Aug 26, 2011 6:57:16 PM

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