Probability Thresholds as Deontological Constraints in Global Constitutionalism

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This Article calls for the re-introduction of probability tests—such as the abandoned American “clear and present danger” or the Israeli “near certainty” test—and for their integration into contemporary models of rights adjudication in global constitutionalism.  This stance is supported, inter alia, by psychological research on the cognitive bias of “probability neglect.”  Both the American strict scrutiny test, which focuses on a rigorous means-ends analysis, and the highly influential German proportionality test, which centers on the balancing of rights and interests, fail to properly ensure the priority of rights.  The Article contends that it is important to integrate a probability requirement into what is commonly termed “generic constitutional law.”  Thus, after engaging in means-ends analysis and prior to conducting balancing, courts should require that the government meet a certain pre-defined probability threshold.