Background: police may only do what's necessary
Proportionality started in 19th-century German police law. In 1882, Prussia's High Administrative Court decided the Kreuzberg case: a police order capped building heights around Berlin's Kreuzberg hill to protect the view of a victory monument. The court struck it down. Police power, it said, only reaches as far as preventing danger.
Then in 1958, Germany's Federal Constitutional Court decided the Pharmacy case (BVerfGE 7, 377), reviewing limits on occupational freedom step by step. That's where proportionality became a constitutional tool.
Korea's scale: the four-step test
Article 37(2) of Korea's Constitution says rights can be restricted by statute "only when necessary," and never in a way that violates their "essential aspect." The Constitutional Court reads a four-step test out of that.
Fail any one and the law is unconstitutional. In practice, step ③ is where most laws trip: "wasn't there a less intrusive way to do this?"
Law is hard because "how much is too much?" has no numeric answer. So lawyers spent generations refining the order and the criteria for making that call. And the U.S. decided to answer the very same question in a completely different way.
The U.S. scales: three tiers of scrutiny
It starts with the famous footnote 4 of United States v. Carolene Products (304 U.S. 144, 1938). Economic regulation gets a light touch, it hinted, but laws aimed at "discrete and insular minorities," shut out of normal politics, might deserve a harder look.
| Tier | What the government must show | Typical use |
|---|---|---|
| Strict scrutiny | A compelling interest + narrowly tailored means | Race classifications, core free speech |
| Intermediate | An important interest + substantially related means | Sex classifications |
| Rational basis | A legitimate interest + rationally related means | Most economic and social regulation |
- Citation
- Korematsu v. United States, 323 U.S. 214 (1944)
- What happened
- WWII internment of Japanese Americans. The Court called racial classifications "immediately suspect" and promised "the most rigid scrutiny," then upheld the exclusion anyway
- Afterward
- In Trump v. Hawaii (2018), the Court said Korematsu "was gravely wrong the day it was decided"
- Citation
- Craig v. Boren, 429 U.S. 190 (1976)
- What happened
- Oklahoma let women buy 3.2% beer at 18 but made men wait until 21
- Holding
- Unconstitutional; established intermediate scrutiny for sex-based laws
Cornell's Wex entry on strict scrutiny is a clean summary.
Side by side
| Question | Proportionality (Korea, Germany) | Tiers (U.S.) |
|---|---|---|
| Structure | Same four steps for every right | Different scale depending on the right or classification |
| Where cases are won or lost | Least restrictive means; balancing | Which tier applies |
| Recent trend | Still the central tool | "History and tradition" tests for guns and abortion |
For that recent U.S. turn, check Bruen in the Second Amendment page.
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Criticism and debate
- Against proportionality: "balancing" is just judges' value judgments in disguise. Can you really put different values on one scale?
- Against U.S. tiers: once you pick the tier, the result is mostly decided. Strict scrutiny famously got called "strict in theory, fatal in fact."
- Convergence: some scholars argue the two systems are really asking the same questions in different vocabulary.
Whatever scale you use, the question underneath is the same: "did they really have to go this far?" Hold onto that question and you can read a Korean Constitutional Court decision and a U.S. Supreme Court opinion with the same map. Here's how to practice with real cases.
Study notes
- Least restrictive means, in practice (Korean material): Essay Answers on the Constitutional Ruling Upholding Takju Supply-Area Restrictions: Least-Restrictive-Means Review, Epistemic Reasons, Treating People Merely as Means, and the Presumption of Innocence and Burden of Proof breaks down a Korean ruling upholding regional limits on makgeolli distribution, focused on step ③. Great practice on the hardest step.
- Rights-restriction problems (Korean material): Constitutional Rights of Psychopaths and Their Limits: Standards for Restricting Fundamental Rights Through Criminal Responsibility, Human Dignity, Personal Liberty and Equality applies the four steps to bodily liberty and equality. Handy for structuring an exam answer.
- Connected ideas: this all grows out of the rule of law. To see strict scrutiny at work on speech, read the First Amendment page.
References and official sources
- Prussian High Administrative Court, Kreuzberg decision (1882).
- BVerfGE 7, 377 (Pharmacy case, 1958).
- United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Justia
- Korematsu v. United States, 323 U.S. 214 (1944); Trump v. Hawaii, 585 U.S. 667 (2018).
- Craig v. Boren, 429 U.S. 190 (1976).
- Wex, "Strict scrutiny." Cornell LII
- Constitution of the Republic of Korea, Art. 37(2). law.go.kr