The standard reasonableness test and proportionality in Argentina: a matter of interactions

CLÉRICO LAURA; DE FAZIO FEDERICO

Proportionality and transformation

Cambridge University Press

Lugar: Cambridge; Año: 2022; p. 1 - 18

Proportionality analysis is considered one of the central adjudication method in the contemporary model of constitutional rights. The prevailing academic narrative explains its worldwide spread as a matter of legal migration. According to this narrative, proportionality found its origins in the Prussian administrative law in the 19th century, was re-incorporated as a standard tool to adjudicate constitutional rights by the German Constitutional Court after 1949, and then migrated to other courts around the world. The Latin-American chapter of the narrative contends that German proportionality doctrines travelled to Spain when democracy was restored, and from there arrived in Latin America in the decades that followed. The aim of this chapter is to challenge this narrative through the analysis of Argentine´s constitutional practice. While some voices that have recently suggested its limits in different ways, we still lack extended documentation of developments that don’t align themselves with it. In the course of the analysis, we will see that variants of proportionality scrutiny were applied by the Argentinian Supreme Court from the beginnings of the 20th century, well before the development of the modern proportionality test by the German Constitutional Court. Moreover, we will argue that constitutional practices in this domain are better explained under a paradigm of interaction than under one of migration. More specifically, we sustain that: a) The idea of proportionality review has been present in the constitutional practice of Argentina through the reasonableness approach from even before the development of the modern proportionality test by the German Constitutional Court. Based on Article 28 of the Constitution of 1853 (still in force), the Supreme Court applied since the beginnings of the 20th century a “reasonableness” test, reconstructed in 1944 as a test with two steps: suitability and proportionality in the narrow sense. We call this test –which is clearly stronger than the Wednesbury reasonableness test— “the standard reasonableness test”. b) The standard reasonableness test turns into more robust modality of scrutiny when applied to assessing limitations of some specially protected rights. Although this occurs mainly in interaction with the USA’s framework of tiered scrutinies, we sustain that there is also a dialogue with proportionality analysis. Sometimes it is not applied under an explicit, structured and sequential manner, while in others the Court dialogues expressly with German categories to structure the argumentation in advance. This stronger version of reasonableness in conjunction with stricter scrutiny includes analysis of suitability, necessity, and proportionality in the narrow sense.c) The Court relies in general on the standard reasonableness test when testing limitations on social rights, and is open to combine it with a stricter scrutiny when the affected persons are in a situation of vulnerability. This occurs in interaction mainly with International Human Rights Law (IHRL). In sum, we conclude that these interactions with the US tiered scrutiny tradition, the German proportionality structured test, and IHRL, enable us to understand what the Court is doing (or omitting) since the early twentieth century. A narrative of interactions is therefore much more appealing than one of migrations to reconstruct practices of rights adjudication such as those in Argentina.