Mapping the American Debate over Balancing

Abstract

What are we arguing over when debating the merits of balancing and rights? Porat’s chapter argues that debates over balancing mask a range of overlapping positions. By tracing these debates over the US Supreme Court’s case law exploring the merits of balancing under the bill of rights, Porat identifies two separable questions: first, how should rights be interpreted, and second, if their interpretation allows for balancing, which institution — court or legislature — should undertake the balancing? The American case law and literature suggests that constitutional rights lend themselves to two readings: either they are first-order considerations to be balanced against other first-order considerations or they are second-order rights that prevent government from acting for some first-order considerations. The first reading lends itself to balancing rights, but — contrary to present day assumptions — the history of US Supreme Court decisions reveals that this conclusion was regularly accompanied with the assumption that the legislature, not the court, was to balance. In turn, the second reading of constitutional rights, while not inviting balancing, none the less regularly appeals to balancing so as to ‘smoke out’ whether the government, purporting to act on a permissible first-order consideration, in truth was motivated by an excluded first-order consideration. Here balancing is transparently the duty of the court, albeit for the limited purpose of identifying the motivating first-order consideration of government action. By contrasting the different possible answers to the two separable questions, Porat identifies one strong and three weak positions on rights and balancing: the strong position reads rights as first-order considerations and assigns to courts the responsibility to balance; the weak positions trade on opposite answers to one or the other or both answers. Whilst the strong position dominates in much of Europe, it is not embraced in the US, where one or the other of the three weak positions find expression in the case law.