The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law

Abstract

One of the most pressing problems of current constitutional law in the aftermath of September 11 is how to balance constitutional rights and national security interests. No one however seems to pause and ask should we balance individual rights and national security interests and if so when. One of the reasons for this is the widespread acceptance of what I shall term in this Article, the balancing consciousness: the view that every problem can and should be solved through balancing conflicting considerations.

This Article demonstrates that the balancing consciousness is misleading. Not every problem can and should be solved through balancing conflicting considerations. Instead of the balancing consciousness, this Article argues for a dual model, which envisions two logical forms of decision-making - balancing and non-balancing. This model has far-reaching implication for constitutional adjudication.

The dual model is based on a distinction between two levels, or orders, of considerations: first-order considerations, and second-order considerations. The Article argues that constitutional rights can be divided between these two types of considerations, and that balancing between a constitutional right and a governmental interest is appropriate only when the constitutional right is of the first order, not when it is of the second order. Interestingly this insight, concerning the limited scope of balancing, was once acknowledged in constitutional jurisprudence, but has since been abandoned. This Article is therefore also a call for reinstalling the original scope of balancing as it was once installed in American constitutional law.

Keywords: law, constitutional law, jurisprudence, practical reasoning, philsophy, free speech, balancing

JEL Classification: K1