Bibliographic record
Abstract
The U.S. Supreme Court's application of varying tiers of scrutiny to different constitutional rights has been widely criticized for severing rights from any clear connection with justice.One school of thought holds that this could be cured by importing or expanding the role for "proportionality analysis" in U.S. constitutional rights doctrines.American proponents of proportionality such as Jamal Greene, Vicki Jackson, and Supreme Court Justice Stephen Breyer have argued that U.S. courts could more transparently respect the connection between rights and justice by following the example of Canadian courts in reasoning about the proportionality of laws as "justified infringements" of rights.Furthermore, proportionality analysis, a kind of "intermediate scrutiny for all," is thought to foster a more reasonable and democratic rights discourse.This Article argues that proportionality analysis may not be the cure its American proponents hope for.Comparisons between American and Canadian constitutional rights cases suggest that proportionality style reasoning conceptually devalues and distorts the connection between rights and justice.In contrast, the alternative concept of rights as absolute relations of justice appears to more transparently value constitutional rights.The Article then turns to the prospective institutional effects of proportionality in the American context.A rough sketch shows that the concept of courts allowing the state to proportionately override rights appears to be as scattered across different American doctrines and tiers of scrutiny as the concept of specifying the scope of rights absolutely.The mixed record of proportionality in U.S. rights doctrines recommends drawing comparisons to Canada, where proportionality is employed under a uniform doctrine.Comparing the effects of proportionality in the U.S. and Canada indicates that this approach institutionally disrupts the democratic settlement of rights disagreements in three ways.First, proportionality analysis appears to inflate the number of rights
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.007 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.004 | 0.004 |
| Science and technology studies | 0.024 | 0.028 |
| Scholarly communication | 0.015 | 0.006 |
| Open science | 0.002 | 0.006 |
| Research integrity | 0.006 | 0.009 |
| Insufficient payload (model declined to judge) | 0.019 | 0.002 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".