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 to better understand 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.
- Progressive Legal Thought,
- Lochner Court,
Available at: http://works.bepress.com/iddo_porat/1/