This Article first describes the unique attributes of the use of foreign law in the Heller dissent, and then addresses the soundness of the specific claim that the United States and Europe share the common methodology of proportionality. This Article argues that Justice Breyer was correct in his contention that a doctrinal framework very similar to proportionality is embedded in American constitutional law in the guise of balancing. However, this Article argues that Breyer missed an important divergence between the two doctrines: the significantly different ways in which balancing and proportionality are situated in America and Europe, respectively, owing to their very different historical, cultural, and institutional characteristics.... This Article explores some indications that the introduction of proportionality into the constitutional law of other countries, such as Canada, may have contributed to their development of a more European frame of mind and has certainly facilitated more extensive dialogue with Europe.
Moshe Cohen-Eliya & Iddo Porat,
The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol46/iss2/4