In other contexts, too, the requirement to give “reasonable consideration” to
constitutional requirements may be more or less open to the principle of proportionality.
For example, there is evidence that the pressure for a reasonable formulation of budgets
has contributed to public debate about the appropriate level of educational spending in
Indonesia. 135 Pressure to accommodate state education rights in the United States has
informed the public discourse about taxing and spending in the United States, allowing a
democratic conversation about short-term fiscal efficiency to be broadened by
considering rights-based constitutional commitments.136
Nonetheless, many of the constitutional systems protective of justiciable economic and
social rights do not share the South African tradition of an evolving reasonableness
review; and those common law systems that do, have often failed to incorporate
economic and social rights. Civil law systems are more than five times as likely to have
incorporated justiciable constitutional rights than common law systems, including the
non-English language jurisdictions within Latin America and Eastern Europe.137 It may
be likely that proportionality analysis, alongside the margin of appreciation, has taken, or
will take, greater hold in such systems; and that innovations in its application will
follow.138
135
Brinks & Gauri., supra note 114, at 422 (focusing on remedies).
Helen Hershkoff & Stephen Loffredo, Tough Times and Weak Review: the 2008 Economic Meltdown
and Enforcement of Socio-Economic Rights in U.S. State Courts, in ECONOMIC AND SOCIAL RIGHTS AFTER
THE GLOBAL FINANCIAL CRISIS, supra note 101, at 234.
137
Jung et al., supra note 14.
138
Such comparative analysis is very timely: see, e.g., Landau, supra note 99.
136
34
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