Two cultures of justification in constitutional law

Abstract Scholars distinguish cultures of authority from cultures of justification in constitutional law. In cultures of authority, a public official’s jurisdiction—or authorization to act—legitimizes the restriction of constitutional rights. In cultures of justification, by contrast, it is the logic and reasonableness of governmental decision-making that legitimize such restrictions. Traditionally, scholars have conceptualized a culture of justification as a culture of persuasion—one grounded in rationality, reason-giving, and engagement with applicable law and the parties’ arguments. They argue that the global expansion of proportionality analysis reflects a shift away from cultures of authority and toward cultures of justification. Drawing on justificatory defenses in criminal law, this article introduces a second conception of justification in constitutional law: justification as moral permissibility. In criminal law, justifications form a category of defenses that recognize how presumptively wrongful conduct can be morally permissible under certain conditions. This article contends that we gain a deeper understanding of a culture of justification—and of proportionality analysis in constitutional adjudication—when we unite the two conceptions: justification as persuasion and justification as moral permissibility. The core argument is that proportionality analysis fosters both cultures of justification. The state commits a presumptive wrong when it restricts fundamental rights. Proportionality analysis ensures that the state not only provides a rational and persuasive justification for limiting rights, but also does so in a morally permissible manner. Justification as moral permissibility elucidates how each stage of proportionality analysis—proper purpose, rational connection, necessity, and balancing—safeguards individuals against distinct forms of governmental wrongdoing. The proper purpose requirement guards against direct discrimination, patronization, and indignity. The rational connection test prevents needless rights violations, protects against arbitrariness, and reveals insincere state motives. The necessity requirement counters excessive coercion and the deflation of rights. The balancing stage prevents instrumentalization and indirect discrimination. Ultimately, this article’s unified account shows how the twin conceptions of justification—as persuasion and as moral permissibility—underpin the structure, role, and argumentative force of proportionality analysis in constitutional adjudication.