The Transformation of American Constitutional Balancing: The History of Constitutional Balancing From Holmes to the Present Day


Balancing tests are ubiquitous in constitutional law. This Article traces the development and history of balancing in American constitutional law, and argues that balancing has gone through a fundamental change during its history—a transformation. The legal Progressives, such as Holmes, Cardozo and Pound, who were the first to introduce balancing into American law, used balancing in a very specific, and somewhat unfamiliar, historical context—they used it to criticize a conservative and formalistic Court, that was nevertheless an activist and pro-rights Court. This special judicial blend was due to the Court's activist protection of such "conservative" free market rights as the right of contract and the right to individual liberty. In this context, also known as the Lochner era, balancing was used to portray free market rights as mere policy interests that had to be balanced with other policy interests, and identified the legislature, rather than the Court, as the proper organ to perform such balancing. This, however, changed when the historical context changed, around the late 1930s. Once the judicial battle against the New Deal was over, the Court started concentrating on political rights, such as free speech, rather than free market rights, and the same tool that was originally devised as an anti-activist and anti-rights tool, was now being used, by the Court itself, as a pro-activist and pro-rights tool. Balancing was therefore transformed. This transformation has persisted, with several intermittent setbacks, to this day. It is argued, however, that the original use of balancing was more appropriate than the later one. Balancing should be used, as the Progressives used it, to show that certain rights are based on policy. If, however, we wish to achieve strong protection of "hard-core" rights, we had better do it formalistically, rather than through balancing.