A Comparative Study Of German-American Modes Of Proportion Principle In Constitutional Review

The principle of proportion is an important principle of constitutional review,and it is generally applicable to balance state power and basic rights in the global modern legal society.In the globalization process of the principle of proportion,different countries develop different practice modes according to their unique institutional and cultural characteristics.The German Supreme Court and the high court used the principle of proportion as an important principle and gave it a status similar to fundamental rights;Japan reviews the limits of national rights on individual freedoms in accordance with the principle of proportionality;The European Court of Human Rights absorbs the principle of proportionality in German law and adopts it;The United States applies the "three-tier benchmark"as the baseline for constitutional review.The proportion principle is mainly represented by the proportion principle of the German mode and the three-layer review benchmark of the American mode.The development of the proportion principle of the German mode is a process from the administrative law principle of in the period of the police law to the constitutional field.The proportion principle mainly includes three sub-principles:appropriateness principle,necessity principle and equalization principle.In order to avoid the principle of proportion falling into the auxiliary structure of value neutrality,the German Federal Constitutional Court introduced the "legislative fact" to connect the proportion principle and typed review benchmark,and developed the "three-level review theory" for different cases.By combining the principle of proportion with the legislative fact that can reflect the value judgment,the court gives legislators different degrees of "judgment leeway" through the constitution of the principle of proportion,and thus forms a wide and strict review benchmark.These review benchmarks are "visible","supportive" and "robust"respectively.In the United States,the "three-layer review standard" is used as the legitimacy of government rights in different types of fundamental rights.This process of application is also a process of balancing between the public interest and the basic rights of citizens.Taking equal protection cases as examples,the United States classifies the cases into general cases,quasi-suspicious cases and suspicious cases,which are respectively applicable to the standards of rationality review,moderate review and strict review.In the United States,the review benchmark is developed from the case,and its review structure of "means--purpose" is more flexible in application.Specifically,for the application of cases,the court examined the limitation of fundamental rights by using the three steps of appropriateness,necessity and equalization,and applying the three-layer density benchmark to different degrees of leniency under each step.Compared with the application of German proportion principle,the United States is more likely to examine the scope of rights and permission issues in the constitutional review,and only when applying the strict review benchmark,the urgent interest requirement and the necessity requirement of means can be applied at the same time.The above two practice modes,which both use the most representative proportion principle,embody the connotation of protecting human dignity.The idea of the principle of proportionality is rooted in any country or polity in which the rule of law is taking place.Based on the different institutional culture and development process,the basic connotation of the protection of human dignity reflected by the principle of proportion is constant,while what differs is the balanced model of the typed principle of proportion.The core of fundamental rights is inviolability,which is also the requirement of the substantive rule of law.