that prompted this migration, the test has both procedural and substantive appeal. Its chief German proponent, Robert Alexy, has provided a defense of proportionality analysis that argues that all rights can be optimized through the adoption of this assessment, rather than through a “firewall” of trumping or absolute protection.73 Alexy’s model of proportionality is critically important for economic and social rights, because it integrates the question as to how the state’s duty to protect (as well as respect) rights can be subject to disciplined balancing.74 Nonetheless, despite the promise of this model for securing both the negative and the positive obligations that attach to economic and social rights, the deployment of the proportionality test has been largely asymmetrical in practice: it has mainly been reserved for “vertical” civil and political rights cases in their “negative” dimension.75 In part, this is because of the asymmetrical protection of economic and social rights in the constitutions or treaty systems that are the heaviest utilizers of proportionality analysis. 76 But the South African example, which 73 ALEXY, supra note 7. Cf. JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS (1996), 258 (warning against a collapse of a constitutional firewall by irrational balancing). 74 Robert Alexy, On Constitutional Rights to Protection, 3 Legisprudence 1, 13 (2009) (presenting the solution as a combination of proportionality with alternativity (which allows for alternatives in correcting an unconstitutional omission); see also BARAK, supra note 63, 422-434; MATTIAS KLATT & MORITZ MEISTER, THE CONSTITUTIONAL STRUCTURE OF PROPORTIONALITY 85-108 (2012). 75 MÖLLER, supra note 12, at 179. 76 In the European Court of Justice, for example, the proportionality of a restriction on free movement rights, which conflicted with national laws aiming to uphold social rights, was weighted heavily on one side of the ledger. See the controversial judgments in the Viking and Laval cases, where the rights of trade unions under Swedish law to engage in industrial action to seek improvements in working conditions was subordinated to the right of employers to “post” workers across the border in line with EU freedom of labour rules: Case C-438/05, International Transport Workers Federation, Finnish Seamen’s Union v. Viking Line, 2007 E.C.R. I-10779; Case C-341/05, Laval un Parneri Ltd v. Svenska Byggnadsarbetafeforbudet, 2007 E.C.R. I-11767; see also Colm O’Cinneide, Austerity and the Faded Dream of a “Social Europe”, in ECONOMIC AND SOCIAL RIGHTS AFTER THE GLOBAL FINANCIAL CRISIS 169, 192 (Aoife Nolan ed., 2014). See also the assessment of Canada’s s 1 jurisprudence in Martha 15