Proportionality Review in Pennsylvania Courts

Courts around the world protect constitutional rights by conducting a form of judicial review known as proportionality review. Judges performing proportionality review run challenged government action through a series of legal tests to determine whether the government has overreached. The U.S. Supreme Court’s “Lochner-era” jurisprudence was a form of rights review that resembled proportionality, but today that Court favors a tiered approach to rights, applying strict scrutiny, rational basis review, and intermediate scrutiny to different claims. Pennsylvania’s Supreme Court, like many other state supreme courts, has to a significant extent patterned its approach to rights after the federal jurisprudence, notwithstanding important institutional differences between constitutional review at the state and federal levels. We argue that Pennsylvania has much to gain from expanding and regularizing the use of proportionality review in constitutional rights claims.