Proporionality in Constitutional and Human Rights Interpretation

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PROPORTIONALITY IN CONSTITUTIONAL AND HUMAN RIGHTS INTERPRETATION*

Imer B. FLORES**

Resumen:

En este ar tículo el au tor, en un con texto en el cual los principios y elprincipio de proporcionalidad están en el corazón no solamente de la filo-sofía y teoría del derecho sino además de la inter pretación en materiaconstitucional y de derechos humanos, argumenta que cuando habíaquienes estaban listos para le vantar la mano para de clarar a un ganadorunánime, algunos críticos y escépticos aparecieron. Aunado a las ob je-ciones tradicionales están preocupados por que en su opinión el princi-pio de proporcionalidad invita a hacer un balanceo innecesario entre de-rechos existentes, a inventar nuevos derechos de la nada (en detrimentode los ya bien establecidos), y que al hacer el balanceo se pierdan dere-chos. Para responder a tales ob jeciones y rechazar las mismas, así comoreforzar la importancia del desarrollo, el autor: primero, revisita la cons-titución de los principios y del principio de proporcionalidad, la cual per

de finitio contradice cada una de las ob jeciones; y, luego, reestablece laconstitución del principio de proporcionalidad como un principio de prin-

cipios no sólo en la interpretación en material constitucional y de dere-chos humanos sino también en la legislación, incluida la reforma consti-tucional, y en la ad judicación.

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* Revised version of the pa per prepared for the Symposia Pro portiona-

lity in Law, University of Western Ontario, London, Ontario (Canada),October 22-23, 2010.

** Professor-Researcher, Instituto de Investigaciones Jurídicas (Legal

Re search Institute) and Fa cultad de Derecho (Law School), UNAM andVisiting Professor of Law, Georgetown University Law Center. E.mail:[email protected]. I am grateful to Grant Huscroft and Bradley Mi ller forthe in vitation and to the other participants for their com ments, espe-cially to Wilfrid J. Waluchow, for his patience with a dense pu pil.

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Palabras Clave:

Derechos, interpretación, principios, proporcionalidad.

Abstract :

In this article the author, in a context in which princi ples and the princi ple of pro portionality are at the heart not only of juris prudence but also of con-

stitutional and human rights inter pretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics ap peared. In addition, to the traditional ob jections, they worry

that pro portionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those

already well-established ones), and even worse in doing so balancing somerights away. In order to answer to such ob jections and to re ject them, as well as to rein force the im portance of this development, the author: first, re-

visits the constitution of princi ples and of the princi ple of pro portionality,which per definitio contradicts each one of this ob jections; and, then, re-

states the constitution of the princi ple of pro portionality as a princi ple of princi ples not only in constitutional and human rights inter pretation but also in legislation, including constitutional reformation, and ad judication.

Keywords:

Inter pretation, Princi ples, Pro portionality, Rights.

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IMER B. FLORES





[E]ye for eye, tooth for tooth, hand for hand, foot for

foot, burn for burn, wound for wound, stripe for stripe.

Exodus 21: 24-5.

Haste still pays haste, and leisure answers leisure;

Like doth quit like, and measure still for measure.

William SHAKESPEARE, Measure for Measure (1603).

Right in general, may be de fined as the limitation of

the Freedom of any individual to the extent of its

agreement with the freedom of all other individuals,

in so far as this is possible by a universal Law.

Immanuel KANT , On the Common Saying. ‘This May

be True in Theory, But it Does not Ap ply in Practice’” (1793).

All social primary goods —liberty and op portunity,

income and wealth, and the bases of self-respect—

are to be distributed equally unless an unequal dis-

tribution of any or all of these goods is to the advan-

tage of the least favored.

John RAWLS, A Theory of Justice , § 46 (1971).

SUMMARY: I. Introduction . II. The Constitution of Princi ples and of Pro portionality . III. The Princi ple of Pro por-

tionality in Constitutional and Human Rights Inter- pretation . IV. Conclusion .

I. INTRODUC TION

Constituting —and even reconstituting— legal principles, ingeneral, and the principle of proportionality, in particular,to the core of legal stan dards and tests, of legal anal y sisand reasoning, of legal rationality for short, are ma jor de-

velopments in contemporary not only jurisprudence butalso constitutional and human rights interpretation for thepast at least thirty-five years. These developments coincidewith the appearance of several ar ti cles of Ronald Dworkin

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PROPORTIONALITY IN CONSTITUTIONAL AND HUMAN RIGHTS





in a coher ent and co he sive book, i.e. Tak ing Rights Seri- ously , which not only defines and defends a lib eral theoryof law based on rights but also debunks and displaces theprevailing conception of law as a model of rules and can becharacter ized as a model of prin ciples.1

And so, nowadays, prin ciples, in general, and the princi-ple of pro portionality, in par ticu lar, not only appear to bequint essential for law but also seem to be ubiquitous: here,there and everywhere. Despite the differences in the na-

tional and regional legal systems, principles, especially the

principle of proportionality, have transcended the border-

lines of coun tries, at least within the Western Legal Tradi-tion, in both Civil Law and Common Law families, and evenhave provided a means of reconciling the grow ing globalconcerns towards human rights protection with other im-

portant local considerations in the process not only of bal-ancing competing rights but also of justifying their limita-tions.2

Moreover, at a time, when principles and the so-calledproportion ality test —or balancing as it is also known— were at the heart not only of ju risprudence but also of con-

stitutional and human rights interpretation, and there were

those ready to raise the hand to declare an unanimous win-ner, some critics and skeptics appeared —or even re ap-

peared.3 To the traditional ob jections re gard ing the inexist-

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IMER B. FLORES

1 Vid . Dworkin, Ronald, Taking Rights Seriously , Cambridge, Mas sa-

chusetts: Harvard Uni versity Press, 1977 (there is 2nd ed. with “Re ply toCritics”: 1978). (Hereinafter the references will be made to the revised edi-tion.) Vid . also Rawls, John, A Theory of Justice , Cambridge, Massachu-

setts: Harvard University Press, 1971 (there is a Revised Edition: 1999.)2 Vid . Alexy, Rob ert, A Theory of Constitutional Rights , trans. Julian

Rivers, Ox ford, Oxford University Press, 2002; Barak, Aharon, Pro portion-

ality: Constitutional Rights and their Limitations , Cambridge, CambridgeUniver sity Press, 2012; and Möller, Kai, The Global Model of Constitutional

Rights , Oxford, Oxford Univer sity Press, 2012.3 Vid . for example, Webber, Grégoire C. N., The Negotiable Constitu-

tion: On the Limitation of Rights, Cambridge, Cambridge University Press,





ence of principles, its plurality, relativity and sub jectivity,their incompatibility, incommensurability and indetermi-nacy, es pecially in cases of value conflict, and so on, somenow worry additionally that proportionality constitutes “adangerous and misguided invitation” to do ing unnecessarybalancing between existing rights, inventing new rights outof nothing at all (in detri ment of the already well-es tab-

lished ones), and —even worse— in doing so balancingsome rights away, such as hu man dig nity.4

Notwithstanding, to answer to such ob jections and to re-

ject them, as well as to reinforce the importance of this de-

velopment, I will like first to go back to the basics to revisitthe constitution of princi ples and of the princi ple of pro por-tionality, which per definitio contra dicts each one of this ob-

jections by proving them wrong, and then to take the claimone step further to restate the constitution of the principleof proportionality as a prin ciple of principles not only inconstitutional and human rights interpretation but also inlegislation, including constitutional reformation, and in ad-

judication.Accordingly, in the coming section II, I intend following

Dworkin to revisit the distinc tion between rules and princi-

ples to emphasize that the former are absolute and appliedin an all-or-nothing fashion, whereas the latter are not anddo have a dimen sion of weight. Hence, rules are con nected

—or link together— in chains of validity and are applied bysubsuming the (par ticular) fact into the one and only appli-cable (general) rule, whereas principles are interconnected

—or hang together— in a unity of value and are applied bybalancing the different principles at stake and so pro por-

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2009; and Tremblay, Luc B. and Webber, Grégoire C. N. (eds.), The Limita-

tion of Charter Rights: Critical Essays on R. v Oakes , Montréal, Éditions

Thémis, 2009.4 Vid . for this claim and its response, Kumm, Mattias and Walen, Alec

D., “Human Dignity and Proportionality: Deontic Pluralism in Balancing”,in Huscroft, Grant et al . (eds.), Pro portionality and the Rule of Law: Rights,

Justi fication, Reasoning (forthcoming).





tional ity as a principle provides a means to do such bal-ance. Ac tu ally, as Robert Alexy has pointed out the natureof principles implies the principle of proportionality andvice versa. Anyway, despite theoretical and practical dis-agreement, proportionality has become an essential meth-

odological criterion in the interpretation of constitutionaland human rights.

In the continuing sec tion III, I pretend to explore not onlythe manner in which the principle of proportionality — lato sensu , compris ing three sub-principles 1) suitability; 2) ne-

cessity; and, 3) proportionality — strictu sensu , has beenconstituted and further developed by the interpretation of some of the na tional constitutional courts and regional hu-

man rights tribunals, in general, but also the mode inwhich the Mexican Supreme Court, in partic ular, does ap-

ply —or sometimes fails to apply— the balancing criterion.5

Additionally, the proportionality approach has proven to beextremely useful not only in con stitu tional and humanrights interpretation but also in ad judication and legisla-

tion, including constitutional reformation, as a criterionthat must be met in order to stand a challenge on its con-

stitutionality.

II. T HE CONSTITUTION OF PRINCIPLES AND OF PROPORTIONALITY

The appearance of Dworkin’s “The Model of Rules”6 in1967 did constitute not only a general at tack on legal posi-tivism with H. L. A. Hart’s ver sion as its main tar get by ad-

dressing the question on whether law is a system for rules

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IMER B. FLORES

5 By the by, in my opin ion, it is precisely when courts fail to apply theproportionality test that rights fade away and not the other way aroundwhen they do apply it.

6 Dworkin, Ronald, “The Model of Rules I”, in Dworkin, Ronald, Tak-

ing Rights Seriously , cit ., pp. 14-45. (Originally published as “The Model of Rules”, University of Chicago Law Review , Vol. 35, No. 1, 1967, pp. 14-46;and reprinted as “Is Law a System of Rules?”, in Summers, Rob ert S. (ed.),Essays in Legal Philoso phy , Oxford, Basil Blackwell, 1968, pp. 25-60.)





but also an alternative based in prin ci ples, in general, andrights, in par tic ular. In short, he claimed that law was not“a model of and for a sys tem of rules” and grounded hisclaim around the fact that when law yers, legal of ficials andlegal oper ators “rea son or dispute about legal rights andobligations, particularly in those hard cases where ourproblems with these con cepts seem most acute, they makeuse of standards that do not func tion as rules, but oper atediffer ently as principles, policies, and other sorts of stan-

dards.”7

As it is widely acknowledged, he character ized legal posi-

tivism as “a model of and for a system of rules” and pointedout “its central notion of a sin gle fundamental test for lawforces us to miss the important roles of the standards thatare not rules.”8 In my opinion, he criticized explicitly (1) thereduction of legal standards to rules, de spite the ex istenceof other legal standards, such as prin ciples, rights and pol i-cies; and (2) the re duction of le gal tests to a sin gle fun da-mental test associated with rules, namely the va lidity test,which Dworkin labeled as pedigree test,9 in spite of the ex-istence of other legal tests, associated with other le gal stan-

dards. Sim ilarly, I will like to suggest that he also criticized

—at least implicitly— (3) the reduction of legal rationality toa single fundamental logical level, associated both withrules and its validity test, namely the an alyt ical or for mallogic, which can be characterized either as deductive , i.e.from-the-general-to-the-particular, or inductive , from-theparticular-to-the-general, regardless of the existence of other modes of le gal ra tio nal ity, associated with other le galstan dards and tests, namely the dialecti cal or in formal/ma-

terial logic, which is neither deductive nor inductive but ad-

ductive and inter pretive .10

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7 Ibidem , p. 22.8 Idem .9 Ibidem , p. 17.

10 Vid . in fra note 41 and its ac companying text.





Anyway, let me start by re producing Dworkin’s seven-foldstrategy, in order to fulfill his immediate purpose of distin-

guishing principles (generically) from rules.(1) He establishes the use of the term “principle” — lato

sensu — “to refer to the whole set of legal stan dards otherthan rules”.11 Basically, following the principles of classicallogical reasoning (identity, non-contradiction and excludedmiddle — principium tertium exclusum or tertium non datur )he claims: since a rule must be constant and remain identi-cal to it self to be truly so; since a rule cannot at a same

time be or not-be; and, since the third middle option is ex-

cluded. Therefore, regarding legal standards, either they are —and func tion as— legal rules or not. In the last case, theyare —and function as— legal prin ciples — lato sensu— in-

stead.(2) He distinguishes between principles — strictu sensu —

and policies; and, in so doing, he fur ther stipulates that“policy” is “a kind of standard that sets out a goal to bereached, generally an improvement in some economic, po-lit ical, or social feature of the community (though somegoals are neg ative, in that they stipulate that some presentfeature is to be protected from adverse change)”;12 and,

“princi ple” — strictu sensu — is “a [kind of] standard that isto be observed, not because it will ad vance or secure aneconomic, political, or social situation deemed desirable,but because it is a requirement of justice or fairness orsome other dimen sion of morality.”13 Analogously, to thefirst step, ei ther legal prin ciples — lato sensu — are —andfunc tion as— pol icies or not. In the latter case, they are

—and function as— legal prin ciples — strictu sensu —in-

stead. In sum, Legal prin ci ples — lato sensu — are eitherpolicies or not, i.e. principles — strictu sensu — and, in otherwords, they are principles or not, i.e. policies.

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IMER B. FLORES

11 Dworkin, Taking Rights Seriously , cit ., p. 22.12 Idem .13 Idem .





(3) He exemplifies both cases: “Thus the standard thatautomobile accidents are to be decreased is a policy, andthe standard that no man may profit by his own wrong aprinciple”.14 The former im plies a contin gent desir able goal,whereas the lat ter a necessary re quire ment of justice, fair-ness or morality.

(4) He acknowledges that: “The distinc tion can be col-lapsed by construing a princi ple as stating a social goal(i.e ., the goal of society in which no man profits by his ownwrong), or by construing a policy as stating a principle (i.e .,

the principle that the goal the pol icy em braces is a wor thyone) or by adopting the util itar ian thesis that principles of justice are dis guised statements of goals (securing thegreat est happiness of the greatest number)”15 Although, prima facie there is no problem if the distinc tion betweenpolicies and principles — strictu sensu — is collapsed fallingboth into the prin ci ples — lato sensu — cat egory, he admitsthat “in some contexts the distinction has uses which arelost if it is thus collapsed”.16

(5) He emphasizes that his immediate purpose is to “dis-tin guish prin ciples in the generic sense from rules” andstarts by collecting some con crete examples of the former,

namely the already famous cases of Riggs v Palmer ,17 alsoknown as Elmer’s case, in which a New York court had todecide whether a heir named in the will of his grandfathercould inherit under that will, even though he had murderedhis grandfa ther to claim the inheritance; and, Henningsen vBloomfield Motors, Inc.,18 in which a New Jersey court hadto decide whether (or how much) an automobile manufac-turer may limit his liability in case the au tomobile is defec-tive. Both cases were aimed to sug gest that the standardsapplied and quoted in them “are not of the sort we think of

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14 Idem .15 Ibidem , pp. 22-23.16 Ibidem , p. 23.17 115 N.Y. 506, 22 N.E. 188 (1889).18 32 N.J. 358, 161 A.2d 69 (1960).





as legal rules”.19 In Riggs the court de nied the murdered aright to in herit and quoted a variant of the Latin adagio “alter non lædere ” (i.e. “do not hurt/wound another”)20 as theapplicable legal principle: “No one shall be permitted toprofit by his own fraud, or to take ad van tage of his ownwrong, or to found any claim upon his own iniq uity, or toacquire property by his own crime”.21 In Henningsen , thecourt denied the manufacturer a right to limit his liabilityand, at various parts, quoted as applicable differ ent le galprin ciples, among them “«[I]s there any princi ple which is

more familiar or more firmly embedded in the history of An-

glo-Ameri can law than the basic doctrine that the courtswill not permit themselves to be used as instruments of in-

equity and in justice?»” And “«More spe cif ically the courtsgener ally re fuse to lend themselves to the enforce ment of a‘bar gain’ in which one party has un justly taken ad vantageof the economic ne cessities of other…»”.22

(6) He quotes as examples of legal rules, propositions like“The maximum legal speed on the turnpike is sixty miles anhour” or “A will is invalid unless signed by three wit-nesses”.23 Let me advance that regardless the fact of beingwritten —or not— into an au thor itative le gal source, an ar-

ticle in a legislative statute or a rul ing in a judicial decision,and even of using the same or similar concepts and words,propositions designating legal rules are different from those

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IMER B. FLORES

19 Dworkin, Taking Rights Seriously , cit., pp. 23-24.20 The Ro man emperor Iustinian emphasized the existence of three

main legal principles considered as “ præcepta iuris ” (i.e. “le gal precepts”):“honeste vivere ” (i.e. “to live respectfully/truthfully”); “alter/um non

lædere ” (i.e. “to not hurt/wound another”; and, “ius suum quique tribuere ”(i.e. “to give everyone his/her due”).

21 115 N.Y. at 511, 22 N.E. at 190.22 32 N.J. 358, 161 A.2d at 86 (quoting Frankfurter, J., in United States

v Bethlehem Steel , 315 U.S. 289, 326 [1942]).23 Dworkin, Taking Rights Seriously , cit., p. 24.





referring to legal principles and can be distinguishable onefrom another, due not to their form but to their function.24

(7) He proceeds, finally, to suggest: “The dif ference be-tween le gal prin ci ples and legal rules is a logical distinction.Both sets of standards point to partic ular decisions aboutlegal obligation in particular circumstances, but they differin the char acter of the direc tion they give”.25 Let me clarifythat the meaning of the “character of the direction theygive” is simply the “nature of the dic tate or directive given”and so must be understood.

In what follows, I will try to ex plain succinctly, ac cordingto Dworkin, the ways in which le gal principles and legalrules do differ regarding the “nature of the dictate or direc-tive given”. As he states le gal rules: “are applicable in anall-or-nothing fashion. If the facts a rule stipulates aregiven, then ei ther the rule is valid, in which case the an-

swer it supplies must be accepted, or is not, in which caseit contributes nothing to the decision”.26

First of all, in order to be applicable, rules must be valid.In other words, either a rule is valid or it is not truly a rule,i.e. not valid or in valid. Secondly, only after we have gath-

ered or get to know the rel evant facts of case, a rule

—which by definition is valid— is either applicable or not tothe case at hand. In that sense, it either contributes to thedeci sion and hence the an swer supplied must be acceptedand ap plied, or it does not and so must be re jected and notapplied with out necessarily ceasing to be valid. Further-more, a rule is by definition valid and must be applicable tothe case at hand if the facts fall within the given dic tate ordirec tive, but it “may have exceptions”.27 In this order of ideas

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24 Vid . for example, Cohen, Felix S., “Transcendental Nonsense andthe Functional Approach”, Columbia Law Review , Vol. 35, No. 6, 1935, pp.809-49.

25 Dworkin, Taking Rights Seriously , cit., 24.26 Idem .27 Id em.





ideas, follow ing the Latin maxim “Exceptio probat regulam incasibus non exceptis ”, i.e. “exception con firms the rule inthe cases not excepted”, I will like to suggest that since theexception probes not only the exis tence of the (gen eral) rulebut also that it is valid and ap plicable to the cases ex-pected. The fact that exceptions are ap plicable to unex-pected cases or even to cer tain deviations of the expectedcases, some of which might already have been expected, re-gard less of being made explicit or not, does not mean thatthe rule is neither valid nor applicable to expected cases

that fall within its realm. Analogously, the fact that generalrules are applicable to the ex pected cases does not meanthat the exception is neither valid nor applicable to unex-pected cases or even to cer tain de viations of the expectedcases.

Take Dworkin’s examples into account: “In baseball arule provides that if the batter has had three strikes, he isout.”28 Indeed, if a batter has had three strikes, ac cordingto the authoritative decision of the official, i.e. umpire, he isout. Unless he falls into an exception to the rule such as“the batter who has taken three strikes is not out if thecatcher drops the third strike”.29 Imagine that “the batter

has had three strikes” and “the catcher drops the thirdstrike”: in the particular case at hand, if the bat ter has hadthree strikes as the general rule dic tates, it must be con-

cluded that he is out, but since the catcher dropped thethird strike as the exception directs, it must be concludedthat he is not out, but the rule is still in ef fect: valid andapplicable to cases expected to fall within its reach (the bat-ter has had three strikes and the catcher did not drop thethird strike) and not applicable to unexpected cases or todeviations of the expected cases (such as the catcher drop-

ping the third strike).It is clear not only that both a rule and its exception are

valid or they truly are neither a rule nor an exception but

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IMER B. FLORES

28 Ibidem , p. 24.29 Ibidem , p. 25.





also that they are applicable or not in an all-or-nothingfash ion: it is either ap plicable or not. How ever, let me ex-plicit some of the im pli cations: first, the rule is applicableor not; second, the ex ception is applicable or not; third, if the rule is applicable, then the ex ception is not applicable;fourth, if the exception is ap pli cable, then the rule is notapplicable; fifth, the rule and the exception cannot be appli-cable at the same case and time, ei ther the one is ap plica-ble and the other not or both are not applica ble.30

What’s more, according to Dworkin: “If two rules conflict,

one of them cannot be a valid rule. The decision as to whichis valid, and which must be abandoned or recast, must bemade by appealing to con sider ations be yond the rulesthem selves. A le gal system might reg ulate such conflicts byother rules, which prefer the rule en acted by the higher au-

thority [lex su perior ], or the rule enacted later [lex posterior ],or the more specific rule [lex specificæ ], or something of that sort [lex loci , locus regit actum ]. A le gal system may alsoprefer the rule supported by the more important principles[in dubio pro homine/personæ/reo ].”31 For this reason, incase of conflict between two —or more— rules, both rulescan not be or remain valid and ap plicable to the same case,

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30 In the event that both a rule and its ex ception(s) are not applicable toa case at hand, law yers, legal officials and legal oper ators will have to lookfor another legal standard applicable, which can be ei ther a rule or not,i.e. a principle — lato sensu . The answer to the question whether they haveto create a new legal rule or to apply an ex isting legal principle, as well asthe distinction be tween strong discre tion and weak discre tion, will re-main largely unex plored at this time. Vid . Hart, H. L. A., The Concept of

Law , Oxford, Oxford Univer sity Press, 1961, p. 124 (there is 2nd ed. with“Postscript”, 1994, p. 127); Dworkin, Taking Rights Seriously , cit., pp.31-9 and 68-71; and Waluchow, Wilfrid J., Inclusive Legal Positivism , Ox-ford, Oxford University Press, 1994. Vid . also Flores, Imer B., “H. L. A.Hart’s Moderate Indeterminacy Thesis Reconsidered: In Between Scyllaand Charybdis?”, Problema. Anuario de Filosofía y Teoría del Derecho , No.5, 2011, pp. 147-73; and Shiner, Roger, “Hart on Judicial Discre tion”,Problema. Anuario de Filosofía y Teoría del Derecho , No. 5, 2011, pp.341-62.

31 Dworkin, Taking Rights Seriously , cit., p. 27.





to the extent that either one of them most be abandoned orre formulated. In that sense, it is clear that rules are validor not in an absolute man ner: it is ei ther valid or not (if in-

valid it is not longer a rule); but also that rules are ap plica-ble or not in an all-or-nothing mode: it is either applicableor not (but still a valid rule).

On the contrary, it can be claimed in a simple straight-forward form that legal principles — lato sensu — are sim plynot legal rules, but let me try to explicit why it is the caseand why they do not function alike. First of all, le gal princi-

ples’ validity is absolute, in the sense that they are al waysvalid and hence cannot cease to be valid, as rules do. Bythe same token, legal principles’ applicability is relative, inthe sense that they are not applicable in an all-or-nothingfash ion, as rules do. In sum, al though the validity of le galprin ci ples is absolute, it is their applicability that is rela-tive, i.e. more or less ap plicable, as Dworkin pointed outthey “have a dimension that rules do not —the dimensionof weight or importance”.32

As a consequence, of their dimension of weight, whichgrants them value and their validity,33 principles cannotcease to be valid and do not have exceptions as rules do,

but have instances and counter-instances, which some-times ap pear as counter-principles, all of which are valu-

able and so already valid.34 In Dworkin’s own voice: “We saythat our law respects the principle that no man may profitfrom his own wrong, but we do not mean that the law neverpermits a man to profit from wrongs he commits. In fact,people often profit, perfectly legally, from their legal

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32 Ibidem , p. 26.33 The distinction be tween different forms of va lidity will remain largely

unexplored at this time. Vid . Flores, Imer B., “The Quest forLegisprudence: Constitutionalism v Le galism”, in Wintgens, Luc J. (ed.),The Theory and Practice of Legislation: Essays on Legisprudence , London,Ashgate, 2005, pp. 26-52.

34 On the close relationship between principles and values, vid . Alexy,A Theory of Constitutional Rights , cit ., pp. 86-110.





wrongs”.35 After citing sev eral coun ter-instances to theprinciple that “A man may not profit from his own wrong”,such as adverse possession, he adds: “We do not threatthese —and countless other counter-instances that caneasily be imagined— as showing that the principle aboutprofit ing from one’s wrongs is not a principle of our le galsystem, or that it is incomplete and needs qualifying excep-

tions. We do not treat counter-instances as exceptions (atleast not exceptions in the way in which a catcher’s drop-

ping the third strike is an exception) because we could not

hope to capture these counter-instances sim ply by a moreextended statement of the principle”.36 It is not as in thecase of legal rules that the more complete the statement of the rule is the better.

Another consequence of their weight dimension is thatprin ciples do not conflict as rules do and more pre cisely theconflict of prin ciples is not solved as that of rules by eitheraban doning or recasting it, since principles are valu ableand so already valid.37 Let me recall, Dworkin asser tion:“When principles intersect (the policy of protecting automo-bile consumers intersecting with principles of freedom of contract, for example), one who must re solve the conflict

has to take into account the relative weight of each. Thiscan not be, of course, an exact mea surement, and the judg-ment that a partic ular principle or policy is more importantthan an other will often be a contro versial one. Nev er the less,it is an in tegral part of the con cept of a prin ciple that it hasthis di mension that it makes sense to ask how im portant or

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35 Dworkin, Taking Rights Seriously , cit., p. 25.36 Idem .37 Although some authors, like Robert Alexy, consider that principles

cannot conflict, but collide with, com pete with or crash into one an other. The mer its or demer its of the dis tinction be tween conflict and collision,competition or crash will remain unex plored at this point, and will be useinterchangeably. Vid . Alexy, A Theory of Constitutional Rights , cit., pp.50-4.





how weighty it is”.38 Since rules do not have this weight di-mension, we cannot speak of rules being more or less im-

portant within the sys tem of rules, because they are all of equal importance: substantial or procedural, public or pri-vate, constitutional or criminal rules all alike are not onlyof equal importance but also equally valid. Although asDworkin admits “We can speak of rules as being function-

ally important or unimportant (the baseball rule that threestrikes are out is more important than the rule that run-

ners may advance on a balk, because the game would be

much more changed with the first rule al tered than the sec-

ond). In this sense, one le gal rule may be more importantthan another because it has a greater or more importantrole in regulat ing behavior. But we cannot say that one ruleis more important than another within the system of rules,so that when two rules conflict one supersedes the other byvirtue of its greater weight”.39

Let me try to explicit, a couple more of con sequences as-sociated with the fact that principles do have weight andrules do not.

First, whereas principles are weighty and more or lessimportant, rules are not weighty but equally important

since they are valid and are connected or link together inchains of va lid ity. For a rule to be applied it is nec essary tobe valid and for that purpose it is sufficient to pass a singlefundamental test associated with rules, i.e. a validity test or pedigree test as Dworkin labeled it, which basically re quiresan uninterrupted chain of validity linking the applicablerule to the more basic or fundamental ones.40 However,prin ci ples are inter connected or hang together in a unity of value (and so of validity) and for a prin ciple to be applica-ble, since by def ini tion as soci ated to its weight it does have

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IMER B. FLORES

38 Dworkin, Taking Rights Seriously , cit., pp. 26-7.39 Ibidem , p. 27.40 Ibidem , p. 17: “rules can be iden tified and distinguished by specific

crite ria, by tests having to do not with their content but with their pedi-

gree or the manner in which they were adopted or devel oped”.





value and so it is al ready valid, it is necessary to be calledupon and whenever that it is the case, its applicability isdecided not on a mere applicative-de ductive mode but in anargumentative-interpretive one.41

Second —and more fundamentally— since rules are prima facie valid and applicable when ever the con ditionsprovided by the general rule are met by the particular factsof the case at hand it seems that legal anal ysis or rea soningcan be re duced to an applicative-deductive mode, by sub-

suming the (partic ular) fact(s) into the one and only appli-

cable (general) rule —or its exception— from which the le galconsequences follow logically —and almost automatically ormechan ically. More over, a principle “does not even purportto set out conditions that make its application nec essary.Rather, it states a rea son that ar gues in one direc tion, butdoes not necessitate a particular decision”.42 In Dworkin’swords:43

99


41 Dworkin’s Justice for Hedgehogs aims not only to attack value plu-

ralism and value skepti cism but also to defend the unity of value, I will

like to point out that this thesis, i.e. the unity of value thesis, can betraced all the way back to the early publication of “The Model of Rules I” tothe weight dimen sion claim, as well as to the fact that principles are inter-connected and do hang together, and has remained ever since throughouthis later works. Vid . Dworkin, Taking Rights Seriously , cit., p. 41: “princi-ples rather hang together than link together [as rules do]”. Vid . alsoDworkin, Ronald, A Matter of Princi ple , Cambridge, Massachusetts, Har-vard University Press, 1985; Dworkin, Ron ald, Law’s Em pire , Cambridge,Massachusetts, Harvard University Press, 1986; Dworkin, Ronald, Free-

dom’s Law. The Moral Reading of the American Constitution , Cambridge,Massachusetts, Harvard University Press, 1996; Dworkin, Ronald, Sover-

eign Virtue. A Theory and Practice of Equality , Cambridge, Massachusetts,Harvard Univer sity Press, 2000; Dworkin, Ronald, Justice in Robes , Cam-

bridge, Mas sachusetts, Harvard University Press, 2006; and Dworkin,Ronald, Justice for Hedgehogs , Cambridge, Massachusetts, Harvard Uni-versity Press, 2011.

42 Dworkin, Taking Rights Seriously , cit., p. 26.43 Idem .





There may be other principles or policies arguing in theother di rection... If so, our principle may not prevail, butthat does not mean that it is not a principle of our legal sys-tem, because in the next case, when these contravening con-

siderations are absent or less weighty, the principle may bedecisive. All that is meant, when we say that a particularprinciple is a princi ple of our law, is that the principle is onewhich officials must take into account, if it is relevant, as aconsideration inclining in one direction or another.

In that sense, rules are conclusive in an all-or-nothing

fash ion. They are ap plicable or not; and, in the event of aconflict, they are abandoned or reformulated, in order tobecome a new gen eral rule or an exception to one. But —asDworkin suggests— “Principles do not work that way; theyincline a decision one way, though not con clusively, andthey sur vive intact when they do not prevail.”44 Since prin-

ciples are relative or non-conclusive and do have (more orless) weight and counter-weight it is clear that legal anal y-sis or reasoning —in the case of le gal prin ciples— cannotbe reduced to a mere applicative-deductive mode, but to anargumentative-interpretative mode characterized by balanc-ing the different principles and counter-principles at stake

—or their weight and coun ter-weight.In sum, regarding applicability, rules are absolute or con-

clusive and applied in an all-or-nothing fashion, whereasprin ci ples are relative or non-con clusive and more or lessapplicable or rel evant due to its di mension of weight —andcounter-weight. Hence, principles do not admit or have ex-ceptions but instances —and counter-instances— pointingin one di rection or another and when ever they appear to bein conflict —or in competition, collision or crashing— sincethey cannot be aban doned or reformulated and much lessoverruled, a form of “balanc ing” co mes and must come intoplay to work it out.

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IMER B. FLORES

44 Ibidem , p. 35.





In that sense, Rob ert Alexy argues: “The nature of princi-ples implies the principle of proportionality and viceversa”.45 In addition, he clarified: “That the nature of princi-ples implies the principle of proportionality means that theprinciple of proportionality with its three sub-principles of suitability, necessity (use of the least intrusive means), andproportion ality in its narrow sense (that is, the balancingrequirement) logically follows from the nature of principles;it can be de duced from them”.46 And, finally, cited the Ger-man Federal Constitutional Court as stat ing that “the prin-

ciple of proportionality emerges ‘basically from the nature ofconstitutional rights themselves’.”47

Let me em phasize that the bal ancing test is identifiedwith a principle itself, i.e . the principle of proportionality

— lato sensu . It is a principle that can be implied by the verysame nature of princi ples and as such constitutes a princi-ple of prin ciples for at least two reasons. First, it provides ameans to control the (strong) discretion of law yers, legal of-ficials, and operators associated with the cases in whichapparently the rules have run out and the only op tion atthe point of their appli cation is ei ther to create a new ruleor to re cast the ex ist ing one to fit the case at hand, with the

corresponding violation of legal principles such as legal cer-tainty and security, legality and normativity, so on and so

forth. Second, it also provides a means to direct the activ ityof a legislative au thor ity, regardless of its name and nature,especially in complex modern societies characterized by thecreation —or recogni tion— of le gal stan dards other thanrules such as principles and poli cies into the legal sys tem,which most probably will conflict. Please consider the pos-sibility of legal authorities not only having to realize certainprinciples in the form of both rights and pol icies but alsohav ing to recognize cer tain limits to such rights and poli-cies. Those limitations and restrictions must be legitimate

101


45 Alexy, A Theory of Constitutional Rights , cit., p. 66.46 Idem (footnote is omitted).47 Idem . Vid . BVerfGE 19, 342 (348 f.); 65, 1 (44).





and as such justifi able and rea sonable to stand a chal lengeon their constitutionality, and a hint on whether they willbe up held or not can be found in the principle of pro por-tionality itself. In short, let me ad vance the thesis of pro-portionality as a principle of principles for both legislationand ad judication, especially on constitutional and humanrights interpretation, as we will see in the follow ing part.

III. T HE PRINCIPLE OF PROPORTIONALITY IN CONSTITUTIONAL

AND HUMAN RIGHTS INTERPRETATION

As we have already seen, in Germany, the German Fed-

eral Consti tutional Court has recognized not only the exis-tence of the prin ciple of propor tional ity but also the factthat it emerges from the nature of constitutional (and hu-

man) rights themselves, de spite lacking an express for mu-

lation. Analogously, in Canada, the principle of proportion-

ality emerged from the decision of the Ca na dian Su premeCourt in R. v Oakes 48 and has been developed further in fol-lowing decisions, to the extent that its influence can betraced not only in New Zea land, South Af rica, Israel, Zim-

babwe and the United Kingdom but also in the European

Court of Human Rights and in the Inter-American Court of Human Rights.49 Actually, it can be said that the Oakes test has been influ enced by them as well to the extent thatit has to be measured against three sub-criteria: the meansused to limit the right must be ra tionally con nected to theob jective sought; the right must be im paired as lit tle aspossible to achieve the ob jective; and finally there must be

102

IMER B. FLORES

48 [1986] 1 S.C.R. 103.49 For the migration of con stitutional ideas, in general, vid . for ex am-

ple, Sujit Choudhry (ed.), The Migration of Constitutional Ideas , Cam-

bridge, Cambridge Uni versity Press, 2006; and, for the principle of pro-

portionality, in particular, vid . Deschamps, Ma rie, The Cross-Fertilisation

of Juris prudence and the Princi ple of Pro portionality. Process and Result

from a Canadian Perspective (on file with the author).





proportionality between the effect of the limitation upon theright and the ob jective achieved by that lim itation.50

Similarly, to Canada and Germany,51 the principle of pro-portionality appeared in Mexico explicitly for the first timein the dissenting opin ion of a minor ity of four out of nine

justices of the Mexican Su preme Court that decided in April20, 2004 the Amparo en Revisión 543/2003 on whether thedistinction introduced by the legislative in the article 68 of the Ley General de Población (i.e . a general bill regulatingnot only migration but also nationality and foreign status)

was constitutional or not by requiring an “authorization”from the migra tion authority whenever a national intendedto marry a foreigner in the Mexican soil on the ground of being discriminatory and as such an unequal treatmentagainst the third paragraph of article 1 of the fed eral Con-

stitution, which prohibits discrimination.52 The argumentat the core of the dissenting opin ion runs as fol low:

Thus it is necessary to determine, first of all, whether thedistinction introduced by the legislative follows an ob jective

and constitutionally valid pur pose . It is clear that the legis la-

tor cannot introduce unequal treatments in an arbitrary

fashion, but must do it with the purpose of advancing theconsecution of con stitutionally valid ob jectives, that is ad-

missible within the boundary limits of the constitutional pro-visions, or expressly included in such provisions.

In second place, it is necessary to examine the rationality

or adequacy of the distinction introduced by the legislator. It

103


50 [1986] 1 S.C.R. 138-9.51 The contrast between the Canadian and German approaches will re-

main largely un explored at this time, vid . for example, Dieter Grimm,“Proportionality in Canadian and German Jurisprudence”, University of

Toronto Law Journal , Vol. 57, No. 2, 2007, pp. 383-97.52 Vid . Flores, Imer B., “Igualdad, no discriminación (y políticas

públicas): A propósito de la constitucionalidad o no del artículo 68 de laLey General de Población”, in Torre Martínez, Carlos de la (ed.), El derecho

a la no discriminación , México, UNAM, 2006, pp. 263-306. Vid . alsoAguirre Anguiano, Sergio Salvador et al., “Igualdad y discriminación enMex ico. Un análisis constitucional”, Este país , No. 163, 2004, pp. 36-44.





is necessary that the introduction of the distinction consti-tutes an apt means to conduce to the end or ob jective thatthe legislator wants to achieve. If the re lation of instru men-

tality between the classificatory measure introduced by thelegislator and the end pretended to be achieved is not clear,or the conclusion reached is that the measure is simply inef-ficacious to conduct to the pretended end, it will be obliga-

tory to conclude that the measure is not constitution ally rea-

sonable. Thirdly, the requi site of pro portionally of the legislative

mea sure must be met: the legis la tor cannot try to achieve

constitutionally legitimate ob jectives in an openly dispropor-tionate way, but must guarantee an adequate bal ance be-

tween the unequal treatment granted and the purpose fol-lowed. It is of course be yond the competence of the SupremeCourt the duty to ex amine in the exer cise of its functions,the appreciation on whether the distinction realized by thelegislator is the more optimal and opportune measure toreach the desired end; that will require ap ply ing crite rion of political opportunity that is totally out of the jurisdictionalcompe tence of the court. Such compe tence is limited to de-termine whether the distinction realized by the legislator iswithin the spectrum of treatments that may be con sider pro-

portional to the fact situation at stake, the purpose of the

law, the rights affected by it, with independ ence that, formcertain points of view, one may be consider to be preferableto others. What the constitutional guarantee of equality re-quires is that, in defin itive, the achieve ment of a constitu-

tionally valid ob jective is not made to the cost of an unneces-sary or unlimited affectation of other constitutionally pro-tected rights.

According to the minority the triple criterion of ob jectiv-ity, rationality and proportionality was not met and there-fore the legisla tive act must have been ruled unconsti tu-

tional instead.53 It is also worth to mention that previously

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IMER B. FLORES

53 In my opinion, the crite ria were met. However, the importance of thecase does not rely on the ruling itself but in the recognition of the prin ci-ple of proportionality.





to this de ci sion, in September 17, 2003 the Inter-Ameri canCourt of Hu man Rights in its Con sulting Opin ion 18/03 onthe legal condition and rights of undocumented immigrantsargued that distinctions granting a differentiated treatmentare not prohib ited per se , and that such distinctions mustbe justified or legitimated, whenever admissible and rele-vant, in vir tue of meet ing the crite ria of being ob jec tive, ra-tional and proportional.54

Regardless of the differences between the Canadian, Ger-man and Mex ican —via Inter-American Court of Human

Rights— approaches, the principle of proportionality — lato sensu — and its sub-criterion of proportionality — strict sensu , i.e. there must be a necessary bal ance or pro portionbetween the lim itation of a right and the ob jective achievedby such limitation, is nowadays generally present all overthe board. What’s more in the United States of America,where the different lev els of scrutiny approach —rationalbasis scrutiny, intermediate scrutiny and strict scrutiny— is em ployed depending on the inter est at stake and how

105


Since the minority is care ful in justifying its decision as within its judi-cial compe tence and not as an invasion or usurpation of the legislative

one, I will like to seize the opportunity to introduce a distinction betweentwo types of ju dicial activism: (1) inter pretative, and (2) inventive —or leg-islative. The first is ad missible and thus must be en couraged as a form of a proper ju dicial function; and, the second is not admissible and so mustbe dis courage as a form of an im proper ju dicial invasion or usurpation of the legislative function. Vid . Flores, Imer B., “Legisprudence: The Formsand Limits of Legislation”, Problema. Anuario de Filosofía y Teoría del

Derecho , No. 1, 2007, pp. 247, 257-260; and Flores, Imer B.,“Legisprudence: The Role and Rationality of Legislators —vis-à-vis Judges— to wards the Realization of Justice”, Mexican Law Review , Vol. 1,No. 2, 2009, pp. 91, 100-106. Vid . also Dworkin, Law’s Em pire , cit., p. 66:“The justification need not fit every as pect or feature of the standing prac-tice, but it must fit enough for the inter preter to be able to see himself as

interpreting that practice, not inventing a new one.” Dworkin, Justice in Robes , cit., p. 15: “Any law yer has built up, through education, training,and ex perience, his own sense of when an in terpretation fits well enoughto count as an interpre tation rather than as an in vention”.

54 CO-18/03 (2003), paragraph 84.





“fundamental” the right in question is con sidered to be. Ithas been ar gued by justice Stephen Breyer, in his dissentin the Supreme Court’s de cision in District of Columbia v.Heller ,55 that proportionality was the preferable approach toscrutinizing legislation limiting the Second Amendmentright to bear arms and he even noted that the pro portion al-ity ap proach has been “applied… in various constitutionalcontexts, including election law cases, speech cases, anddue process cases”.56 In that sense, justice Breyer is notonly advocating for extending the balancing of the interme-

diate scrutiny —which has a strik ing resemblance with theproportion ality approach— to strict scru tiny cases but alsoarguing for making it the central method for the protectionof rights and the justification of its limitations, in theUnited States.57

Finally, let me turn back to the Mexican cases. Firstly, toa case that reinforces the adequacy of proportionality ap-

proach —or intermediate scrutiny— over the strict scrutinyin constitutional rights ad judication and interpretation;and, secondly, to a series of controversial legislative re-forms, which have already stand the chal lenge of its consti-tutionality, due to the fact that they were drafted and en-

acted considering the principle of proportionality by meansof comparative legal interpretation of local or nationalcourts and regional or inter na tional tribunals all over theglobe.

On the one hand, in Oc to ber 5, 2005, the First Cham berof the Mex ican Supreme Court decided —by a ma jority of three out of five justices— the controversial Amparo en Revisión 2676/2003 , well known as Caso Bandera (i.e. Flag

106

IMER B. FLORES

55 128 S. Ct. 2783 (2008).56 Idem . at 2851.57 The relationship between the American balancing and the German

proportionality will remain large unexplored at this time. Vid . for ex am-

ple, Co hen-Eliya, Moshe and Porat, Iddo, “Amer ican Balancing and Ger-man Proportionality: The Historical Origins”, International Journal of Con-

stitutional Law , Vol. 8, No. 2, 2010, pp. 263-86.





Case) or Caso del Poeta Maldito (i.e. Wicked Poet Case). Tomake a long story short: A poet, i.e. Sergio Hernán Witz Ro-driguez, who was charged with the federal crime of “ultraje a los símbolos patrios ” (i.e. outraging the national symbols),by writing a poem in which he used the word “bandera ” (i.e.flag), and said disgusting and offensive things —not nec es-sarily disrespectful but critical from my point of view— peti-tioned the federal authority for an Amparo , by challengingthe constitutionality of the article 191 of the Código Penal Federal (i.e. Federal Criminal Code), on the ba sis of the fed-

eral Constitution guarantee on arti cle 6 to protect freedomof speech as long as it does not constitute an “attack tomorals, [or] third-party rights, incite a crime, or disturb thepublic order”.

Since the Constitution contemplated explicitly certainlimits to the free dom of speech, the ma jority merely sub-

sumed the dis gust ing and of fen sive —for them even disre-spectful— refer ence in a poem to a national sym bol as anattack to the morals of the com munity, and denied theAmparo considering it a legitimate constitutional limitation.On the contrary, with the proportionality approach, theCourt must have to carefully an alyze whether it was pro-

portional to criminalize the disgust ing and of fen sive ref er-ence in a poem —or any other form of speech— to a na -

tional sym bol such as the flag when it is done in anar guably disrespectful way, or it was required that such ref-erence indeed attacked the morals or third-party rights, in-

cited a crime, or dis turbed the public order.In the dissenting opinion, the minority starts by quoting

the Consulting Opin ion 5/85 of the Inter-American Court ofHuman Rights, dated Novem ber 13, 1985, to es tab lish a di-rect link between the free dom of speech and a democraticsociety, and contin ues by stressing that the right to a free-dom of expression is not merely a right to speech but a

right to a free speech: “The freedom of expression, in otherwords, protects the in dividual not only in the man ifestationof the ideas shared with the great ma jority of the fel low cit i-

107






zens, but also of unpopular, [and] provoc a tive ideas or,even, those that certain sec tors of the cit izenry consider of-fensive.” Furthermore, continues “Any legislative act con-

tain ing a limitation to the rights of free speech and press,with the intention of concretizing the constitutional limitsforeseen must, there fore, thoroughly re spect the requisitethat such con cretion is necessary, proportional and of course compatible with the constitutional principles, valuesand rights.” In addition, con siders that the leg is lative ac tioncriminalizing speech-mak ing reference to the national flag

“goes well be yond any rea sonable understanding of whatcan be estimated to be covered by the necessity of pre serv-ing the public morality. A crime so conceived affects directlythe nu cleus protected by the free dom of speech, which con-

tains, as has been pointed out before, the free dom to ex-press freely convictions in any mat ter, and in a special wayin polit ical matter”. What’s more con cludes not only that itincludes a disproportional effect:

The effect of the ar ti cle under exam is to compel the individ-

uals not to dispute, in any event, certain political convic-tions, and not simply to secure the protection of the nucleusof moral convictions about right and wrong, basic and fun-

damental, of a society, making nugatory the fundamentalright to a free expression and the basis of political pluralismthat our Con stitution guaran tees at the most higher level.

But also that there are other less intrusive means to pur-sue the legitimate concern of promoting nationalism and re-spect for the national symbols such as the flag:

What the State can do via ed ucation, cannot be donethrough a more vir ulent and delicate instrument —criminallaw— when is di rected, besides, not to groups that have withthe State a special relation of subordination (such as mili-

tary or public civil functionaries) but to the common citizen,and what is at stake is pre serving some kind of mean ing tothe constitutional fundamental rights to express and publishwritings in a free way.

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IMER B. FLORES





In sum, the minor ity concludes:

Hence, we are against the decision supported by the ma jor-ity. What did cor re spond to determine as First Cham ber of the Su preme Court, we cannot forget, is not whether mis terWitz wrote a good or bad poem, or whether we will say aboutthe national flag the same as he. What did competed us todetermine is what a person has a right to say in Mexico with-

out suf fer ing a criminal pros e cution that marks he/she forlife and that may take him/her into jail. What did corre-spond to us, in defin itive, was to guarantee the scope for the

protection of a fundamental right and to issue a resolutionthat gives plenty practical operation to what our Con stitu-

tion estab lishes, granting plenty op eration to the civil rightsof the citizens, ele ment over which the con struction of thedemocracy our Constitution foresees must be built. That didobligated us to protect the petitioner against article 191 of the Federal Criminal Code, as an imperative mea sure tosafeguard the nucleus of his/her right to ex press freely inour country, and to divulge his/her own ideas through thepublication of writings.

Protecting the petitioner in this case neither does imply —is important to stress it out— to do a general decla ra tion ofunconstitutionality of the article 191 of the Federal Criminal

Code, nor a definitive expulsion from the legal ordering. As itis proper from the writ of amparo in our legal system, whichdoes not exercise a judicial review of legislation with erga

omnes effects, but inter partes , that is, to the concrete caseand not in an abstract way, the crime of outraging the na-

tional symbols will remain in the Crim inal Code and mayconstitute the parameter to criminally persecute con ducts sodeserv ing. In a case such as the one debated, in which whatis at stake is the preser va tion of the essential content of thefree dom of expression (since writing poems is perhaps themore classic and less challenged manifestation of such lib-

erty), the re spect to the consti tu tional or der obligated thisChamber to declare it inapplicable, because the simple factthat leaving open the door to a judge who may use it to con -

sider criminally the con duct of mis ter Witz implies le gitimat-ing a violation to his more basic lib erties.

109






Despite the ma jority ruling, there is a clear paral lel be-tween this case and the United States of America Su premeCourt’s flag-burning cases of Texas v Johnson 58 strikingdown a conviction under Texas flag-burning lo cal stat ute;and United States v Eichman 59 strik ing down a federal stat-ute that imposed criminal sanc tions on someone who“knowingly mutilates, defaces, physically defiles, burns,maintains on the floor or ground, or tramples upon any flagof the United States”.

In the former, Justice Anthony Kennedy in a concurring

opinion noted:60

The hard fact is that sometimes we must make decisions wedo not like. We make them because they are right, right inthe sense that the law and the Constitution, as we see them,compel the re sult. And so great is our commitment to theprocess that, except in the rare case, we do not pause to ex-

press distaste for the re sult, perhaps for fear of undermininga valued principle that dictates the decision.

In the latter, the Supreme Court noted that protection for“expression of dissatisfaction with the policies of this coun-

try [is] sit uated at the core of our First Amendment val-

ues”.61

On the other hand, the Legislative As sembly of MexicoCity has enacted in the re cent past some controver sial leg-islative reforms: (1) allowing the interruption of a pregnancyin the first twelve weeks, i.e. a first trimester abortion, fol-lowing the well-know Roe v Wade 62 three-trimester triplecriteria; and (2) allowing gay-marriages and recognizingtheir right to adoption, after allowing civil unions, underthe la bel of sociedades de convivencia (i.e. cohabitating so-

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IMER B. FLORES

58 109 S. Ct. 2533 (1989).59 110 S. Ct. 2404 (1990).60 Texas v. Johnson , 109 S. Ct. 2533, 2548 (1989) (Ken nedy, J., con-

curring).61 United States v Eichman , 110 S. Ct. 2404, 2407 (1990).62 410 U.S. 113 (1973).





cieties), and resistance by administrative legal officials togrant them the right to adoption. Be sides, it is actually dis-cussing the necessity of (3) regulating the possibility of uterus’ surrogating at the local level, but is also an alyzingthe possibility of present ing an initia tive at the federal level.

Both (1) and (2) have al ready be ing consti tution ally chal-lenged and did stand such challenge. On one side, a proposof (1) the Mexi can Supreme Court decided the Acciones de Inconstitucionalidad 146/2007 and 147/2007 with a ma jor-ity of eight out of eleven justices in August 28, 2008. As the

Chief Justice —who by the by was in the minority— clari-

fied in a speech communicating the decision to the so ci ety:

The resolution of the Supreme Court of Justice of the Nationneither criminalizes nor decriminalizes abortion.

It is neither an attribution of this Constitutional Tribunalto es tablish crimes nor sanctions.

We did determine the constitutionality of a norm approvedby the representative body, and in this particular case, didparticipated in a definition of national transcendence.

Among the reasons to uphold the legislative re forms wasmainly the consider ation that the human life protected im-

plicitly by the Mexican Constitution and explicitly by theAmeri can Convention on Hu man Rights, stated that theprotection of life starts with the conception, in general, andhence that as an exception it could be stipulated dif ferentlyby state parties. In this case, until after the first twelveweeks period of a pregnancy and by giving propor tional pri-ority to several other competing rights at stake, such as thehuman life of the women seeking an abor tion and her rightto health which will be impaired if she has to practice adangerous and unsafe clandestine (illegal) abortion proce-dure; her freedom to choose whether to carry a pregnancy

to term or not; and —in my opinion— to some extent a rightto (her) pri vacy. In addition, the transcendence of the de ci-sion and its legal and social effects is out of question.What’s more sparked also in the lo cal-state level the en act-

111






ment of at least 17 anti-abor tion state constitutional re-forms and/or stat utes, some of them with a dubious consti-tutionality.

On the other, as regards of (2) the Mexican Su premeCourt started to discuss the Acción de Inconstitucionalidad 2/2010 in August 3, 2010. In the fol lowing sessions of Au-

gust 5, 10 and 16 resolved: first, with a ma jority of eightout of ten jus tices, the constitution ality of the same-sexmarriage; second, with a ma jority of nine out of eleven jus-tices, the rec ognition of its effects in all the country; and,

third, also with a ma jority of nine out of eleven justices, theconstitutionality of their right to an adoption.In short, the Leg islative Assembly of Mexico City, first,

decided to rec ognize the so-called civil un ions, under the la-

bel of sociedades de convivencia , as not doing it will have adisproportionate effect on de facto unions of gays and lesbi-ans by denying either legal rights or legal obligations totheir homosexual partners, which heterosexuals do en joy orhave. And, later, faced with the fact that admin istrative le-gal of ficials re fused to grant same-sex couples the right toadopt, resolved not only to modify the la bel to the full-bod-

ied same-sex marriage but also to explicitly recognize their

right to adopt, because not doing so will also have a dispro-portionate effect on homosexuals by denying a right that

het erosexuals do en joy. In that sense, Mexico City leg isla-

tors recognized twice the principle of proportionality as aguideline for the use of its leg is lative power. Actually, if theaction of administrative legal officials refusing to grantsame-sex couples the right to adopt were to be constitu tion-

ally challenged, the Supreme Court of Mex ico most proba-bly would find it to have a dispropor tionate effect and so tobe unconsti tutional by violating the principle of propor-tionality.

IV. CONCLUSION

Finally, to conclude, let me rein force the adequacy of thebalancing or pro portion ality test, as well as of the thesis of

112

IMER B. FLORES





proportionality as a principle of principles for both legisla-

tion and ad judication, especially on constitutional and hu-

man rights interpretation, by pointing out its close relation-

ship with John Rawls’ differ ence principle.63 As it iswell-know, the dif ference principle is one of the most com-

mon and popular instantiations of the princi ple of pro por-tionality, in which a limitation or restriction on any right,say liberty or equality, must be pro portional, in order to be

justi fied or legit imated, such as in the case of permittingdiffer ences as long as they are in benefit of the less-advan-

taged or worse-off mem bers of society, such as those con-

templated in some affirmative action programs. Nonethe-less, it must be provided that they do not deny theexistence and exercise of a le gal prin ciple or right becausethe lim itations and re strictions are and must remain pro-portional, granting to the principle of proportionality itsprinciple of principles constitution.

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63 Vid . Rawls, A Theory of Justice , cit ., pp. 75-83.





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Proporionality in Constitutional and Human Rights Interpretation