Practice question · Put in order
Arrange the steps of the proportionality test in the order a constitutional court applies them.
- Ask whether the measure is suitable for achieving that aim
- Establish that the measure pursues a constitutionally legitimate aim
- Weigh the benefit obtained against the sacrifice imposed on the right
- Ask whether a less restrictive measure would achieve it equally well
Hints
- The test never begins with the weighing.
- Necessity asks about alternatives; the final step compares benefit with cost.
Show the answer
- Establish that the measure pursues a constitutionally legitimate aim
- Ask whether the measure is suitable for achieving that aim
- Ask whether a less restrictive measure would achieve it equally well
- Weigh the benefit obtained against the sacrifice imposed on the right
Why
The order is not a formality. A measure that fails at step two is unconstitutional without any weighing at all, which is why courts that jump straight to the balancing stage are criticised for turning a structured test into an unstructured intuition. Only what survives suitability and necessity gets weighed.
Practise The State, Legality and Legitimacy
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