Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse

290 Pages·2014·5.965 MB·English

by  Jacco Bomhoff

BALANCING CONSTITUTIONAL RIGHTS
h e language of balancing is pervasive in constitutional rights jurispru-
dence around the world. In this book, Jacco Bomhof of ers a compara-
tive and historical account of the origins and meanings of this talismanic
form of language, and of the legal discourse to which it is central.
Contemporary discussion has tended to see the increasing use of balanc-
ing as the manifestation of a globalization of constitutional law. h is book
is the i rst to argue that ‘balancing’ has always meant radically dif erent
things in dif erent settings. Bomhof makes use of detailed case studies
of early postwar US and German constitutional jurisprudence to show
that the same unique language expresses both biting scepticism and pro-
found faith in law and adjudication, and both deep pessimism and high
aspirations for constitutional rights. An understanding of these radically
dif erent meanings is essential for any evaluation of the work of constitu-
tional courts today.
JACCO BOMHOFF is Associate Professor of Law at the London School of
Economics and Political Science.
CAMBRIDGE STUDIES IN CONSTITUTIONAL LAW
h e aim of this series is to produce leading monographs in constitutional
law. All areas of constitutional law and public law fall within the ambit of
the series, including human rights and civil liberties law, administrative
law, as well as constitutional theory and the history of constitutional law.
A wide variety of scholarly approaches is encouraged, with the governing
criterion being simply that the work is of interest to an international audi-
ence. h us, works concerned with only one jurisdiction will be included
in the series as appropriate, while, at the same time, the series will include
works which are explicitly comparative or theoretical – or both. h e
series editors likewise welcome proposals that work at the intersection
of constitutional and international law, or that seek to bridge the gaps
between civil law systems, the US, and the common law jurisdictions of
the Commonwealth.
Series Editors
David Dyzenhaus , Professor of Law and Philosophy,
University of Toronto, Canada
Adam Tomkins , John Millar Professor of Public Law,
University of Glasgow, UK
Editorial Advisory Board
T.R.S. Allan , Cambridge, UK
Damian Chalmers , LSE, UK
Sujit Choudhry , Toronto, Canada
Monica Claes , Maastricht, Netherlands
David Cole , Georgetown, USA
K.D. Ewing , King’s College London, UK
David Feldman , Cambridge, UK
Cora Hoexter , Witwatersrand, South Africa
Christoph Moellers , Goettingen, Germany
Adrienne Stone , Melbourne, Australia
Adrian Vermeule , Harvard, USA
BALANCING
CONSTITUTIONAL RIGHTS
h e Origins and Meanings of Postwar
Legal Discourse
JACCO BOMHOFF
U niversity Printing House, Cambridge CB2 8BS, United Kingdom
Published in the United States of America by Cambridge University Press, New York
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781107044418
© Jacco Bomhof 2013
h is publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2013
Printed and bound in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data
Bomhof , J. (Jacco)
Balancing constitutional rights : the origins and meanings of postwar
legal discourse / Jacco Bomhof .
pages cm. – (Cambridge studies in constitutional law)
Includes bibliographical references and index.
ISBN 978-1-107-04441-8 (hardback)
1. Proportionality in law. 2. Constitutional law.
3. Civil rights. 4. Jurisprudence–Philosophy. I. Title.
K247.B65 2013
342.08′5–dc23
2013023418
ISBN 978-1-107-04441-8 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Die Rechtsprechung zu den Grundrechten und deren Dogmatik sind
in den letzten Jahren so sehr von der h eorie der Abw ä gung domi-
niert worden, dass weder deren vielfach unausgesprochen gebliebenen
Voraussetzungen noch dogmatische Alternativen ü berhaupt Konturen
gewinnen konnten.
Karl-Heinz Ladeur, Kritik der Abw ä gung in der
Grundrechtsdogmatik , 2004
Over the past few decades, with little justii cation or scrutiny, balancing
has come of age. […] Without a pause, our minds begin analysis of [con-
stitutional law] questions by thinking in terms of the competing inter-
ests. Before we have time to wonder whether we ought to balance, we are
already asserting the relative weights of the interests. Constitutional law
has entered the age of balancing.
T. Alexander Aleinikof , Constitutional Law in the Age of
Balancing, 1987
[European] Continental legal theory is uncannily ‘other’ for an American,
perhaps because just about everything in our legal culture is present in
theirs, ot en translated word for word, but nothing seems to have the
same meaning.
Duncan Kennedy, A Critique of Adjudication (i n de si è cle) , 1997

CONTENTS
Acknowledgements page viii
Introduction 1
1 Q uestioning a global age of balancing 10
2 B alancing’s beginnings: concepts and interests 31
3 A perfect constitutional order: balancing in
German constitutional jurisprudence of the 1950s
and 1960s 72
4 A dangerous doctrine: balancing in US
constitutional jurisprudence of the 1950s and 1960s 122
5 Two paradigms of balancing 190
Conclusion 2 35
Bibliography 244
Index 273
vii
ACKNOWLEDGEMENTS
I am particularly grateful to Janneke Gerards for her unwavering sup-
port during all the dif erent phases of work on this project. For critical
readings and stimulating conversations along the way, I thank Maurice
Adams, Eduard Bomhof , Antoine Buyse, Neil Duxbury, Jan Komá rek,
Peter Kugel, Susan Marks, Kai Mö ller, Jo Murkens, Andrew Lang, Mitchel
Lasser, Anne Meuwese, Ralf Michaels, Marthias Reimann, Anne-Isabelle
Richard, Helen Reece, Annelise Riles, Felix Ronkes Agerbeek, Yaniv
Roznai, Mathias Siems, Emmanuel Voyiakis, Catherine Valcke, Gré goire
Webber, Michael Wilkinson, Lorenzo Zucca and Peer Zumbansen. Jan
Kleinheisterkamp provided invaluable encouragement and advice. h e
generosity of these colleagues and friends is not to be confused with
any responsibility for what follows. Special thanks are due to Frederick
Schauer, Martijn Polak and Janneke Gerards for commenting on the doc-
toral manuscript on which this book is based. Emma and Matthias have
been quiet – and not so quiet – sources of inspiration and playful distrac-
tion. Andrea’s patience and support would merit mention on every page.
h is book is dedicated to her, s l á skou .

viii
u

Introduction
A. h e local meanings of balancing
h is book is about the origins and meanings of one of the central features
of postwar Western legal thought and practice: the discourse of balancing
in constitutional rights jurisprudence. h is discourse is pervasive in legal
systems around the globe. Paradoxically though, its very ubiquity makes
it in some ways more dii cult to grasp. One important reason for this is
the widespread assumption that identical, or nearly identical, terminol-
ogy will mean more or less the same thing wherever it appears. h at – nor-
mally unstated – assumption is only reinforced by the ways in which the
imagery of weights and proportions corresponds to popular and scholarly
notions of what constitutional rights justice should look like.
h e central argument of this book is that references to balancing, of
rights, values or interests, in case law and legal literature, have a far wider
and richer range of meanings than conventional accounts allow for. On
a most basic level, this argument builds on a change in perspective from
balancing as something we think judges do, to something we know judges
say they do – a shit in emphasis, that is, from balancing as doctrine, tech-
nique or principle to balancing as discourse. h e project for the next few
chapters is to uncover what this balancing discourse means to local actors
in dif erent legal systems.
h ese local meanings of balancing , as I show in a case study of
German and US constitutional rights jurisprudence, can and do dif-
fer dramatically. Uncovering these dif erent meanings matters. h is is,
at er all, the legal language that, more than any other currently in use,
constitutional rights jurisprudence turns to for justii cation, legitim-
ization and critique. h is book aims to contribute to an understand-
ing of how so much has come to be invested, in so many dif erent and
contradictory ways, in this one particular, talismanic form of legal
language.
1