In this chapter, the author explores the practice of proportionality justification that is a central feature of constitutional right protection in the many jurisdictions that share the ‘post-war paradigm’ of constitutional rights protection. He suggests that this practice is part of a conception of constitutional rights as structural features of the constitutional order (the ‘Rechtsstaat’), rather than as external limits on state action imposed by the framers of a constitutional document. Constitutional rights, on this account, are regulative principles that serve to direct the activities of the state from the inside in order to ensure respect for the independence of persons. And so the question that the proportionality justification seeks to answer is whether the state’s justification for limiting a right is consistent with such respect.
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