A Democratic Defense of Constitutional Balancing
Law & Ethics of Human Rights, Vol. 4, 2010
36 Pages Posted: 19 Feb 2009 Last revised: 9 Sep 2009
We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can, in principle, be limited or overridden by non-constitutional rights claims premised on conflicting public policy objectives.
It is not surprising, then, that a significant literature about constitutional balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses or "rational reconstructions" of balancing and/or the general structure of rights; (3) explaining how and why balancing has become dominant; (4) advancing critiques of balancing; and (5) attempting to rebut certain parts of these critiques.
In this paper, I present one particular affirmative justification of constitutional balancing; namely, a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification of constitutional balancing for how courts should exercise their powers of review.
Keywords: balancing, proportionality, constitutional rights, comparative constitutional law
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