From Interest-Based Balancing to Rights-Based Balancing: Two Models of Balancing in the Early Days of American Constitutional Balancing

48 Pages Posted: 13 Sep 2007

See all articles by Iddo Porat

Iddo Porat

College of Law and Business - Ramat Gan Law School; College of Law and Business

Date Written: September 2007

Abstract

Balancing tests are ubiquitous in current constitutional law. This Article reviews the development of constitutional balancing over the first five decades of the 20th century and identifies the formation of two types of balancing during these years: interests-based and rights-based balancing. Since these two types of balancing are still present within current constitutional law, this review may also help in better understanding balancing today.

The Article attempts to show how the early development of balancing in the early 20th century by legal Progressives such as Holmes, Pound and Cardozo, was related to their criticism on the jurisprudence of rights, and their emphasis on a jurisprudence of interests. Balancing meant for the Progressives that rights were lowered to the status of interests, and that the Court had to balance them with other interests, rather than use them as trumps against public policy considerations. Later, however, balancing was used hand in hand with a heightened rhetoric of rights. The Article attempts to place the change from interests-based to rights-based balancing in historical context (in the change from the Lochner era to the post Lochner era) and explain its meaning - mainly its correlation with judicial activism (rights-based) and judicial deference (interests-based) and its interrelation with the ideas of judicial formalism and anti-formalism. Finally the Article suggests that the original interests-based model may have been more adapt to the anti-formalist movement from which it sprang, and to the metaphor of balancing itself, than the later rights-based model.

Keywords: Balancing, Constitutional Law, Progressives, History of Legal Thought

Suggested Citation

Porat, Iddo, From Interest-Based Balancing to Rights-Based Balancing: Two Models of Balancing in the Early Days of American Constitutional Balancing (September 2007). Available at SSRN: https://ssrn.com/abstract=1012592 or http://dx.doi.org/10.2139/ssrn.1012592

Iddo Porat (Contact Author)

College of Law and Business - Ramat Gan Law School ( email )

26 Ben-Gurion St.
Ramat Gan, 52275
Israel

College of Law and Business ( email )

26 Ben-Gurion St.
Ramat-Gan
Israel

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