Kai Möller (London School of Economics – Law Department) has posted Authority and Intent in U.S. Constitutional Culture (forthcoming, Jerusalem Review of Legal Studies) on SSRN. Here is the abstract:
This is a comment on Moshe Cohen-Eliya’s and Iddo Porat’s book Proportionality and Constitutional Culture (CUP 2013). It was was written for a symposium on their book which took place at the Hebrew University of Jerusalem in December 2013; the other commentators were Mota Kremnitzer and Adam Shinar. The comments, along with a reply by the authors, will be published in the Jerusalem Review of Legal Studies.
On the last page of their book, Cohen-Eliya and Porat invite their readers to weigh the advantages and disadvantages of adopting proportionality, and they express the hope that their book will have provided a starting-point for such work. The first two sections of the paper take up this invitation by assessing the moral appeal of what Cohen-Eliya and Porat identify as proportionality’s rival, namely the US model, and more specifically, the intent-based conception of rights and the culture of authority which in their view lie at its heart. My argument will be that both the intent-based conception of rights and the idea of a culture of authority are morally deficient and that if one fixes their problems, one will end up with the proportionality-based model (which I will refer to as the ‘global model’). In the final section, I will argue that this result throws doubts upon Cohen-Eliya’s and Porat’s claim that the intent-based conception and the culture of authority are at the heart of US constitutional culture. I will claim that the lack of moral appeal of their account provides a prima facie reason against its validity as a culturally reconstructive theory, and I tentatively suggest that the global model should be considered as a candidate explaining US constitutional culture as well.