Balancing’s US local meaning

Given the language and images described in this chapter, what was the US American meaning of the discourse of balancing during the period portrayed here? By way of interim observations, here are a number of dis­tinctive features that emerge particularly clearly when compared to the German meaning of balancing discussed in Chapters 3.

One important conclusion must be that the discourse of balancing in the US was so much narrower than that in Germany. Balancing in Germany was the cornerstone of a comprehensive constitutional vision: that of the ‘perfect constitutional order'. In the US, balancing was largely a feature of first amendment law. This first amendment balancing, in add­ition, was the product of a much more gradual process: Not the proverbial big bang of one seminal decision like Luth, but the incremental modifica­tion and replacement of familiar older concepts and doctrines lay at the heart of balancing's rise in the US.

Within this narrower, more incrementally developing discourse, it was much less clear in the US context than it was in German jurisprudence what the language of balancing was supposed to stand for. Assessments of balancing ranged from ‘mere rhetoric', through a narrow doctrine for certain well-defined categories of first amendment cases, to a description of the judicial function more generally. In addition, many of these differ­ent meanings came loaded with (contradictory) assumptions as to how ‘balancing courts' were likely to behave, and to what results ‘balancing decisions' were likely to lead. As a result, many of the participants in the relevant debates were often talking to each other - and to easily debunked straw men - rather than with each other. Their contributions remain col-

³⁵⁰ For an overview, see Kennedy (1969).

³⁵¹ Reprinted in Dworkin (1977), pp. 197-200.

Amidst all this uncertainty, one aspect of balancing's meaning does emerge with great clarity. This is the fact that balancing in US jurispru­dence was, to a very large extent, understood by way of opposition and contrast. In part, this occurred in the course of the struggle over appro­priate standards for judicial reasoning. These were the clashes between the values ofjudicial honesty and legal craftsmanship, between the attrac­tions of situated, realistic decision making and the virtues of the rule of law. Most comprehensively, these were the conflicts over what it meant for courts to be acting as ‘courts of law'. A second main contrast opposed the discourse of balancing to that of the definitional tradition in American jurisprudence, mainly in its contemporary guises of categorization and ‘absolutism'.

That latter opposition in particular, I argue in the next chapter, remains central to balancing's contemporary meaning in the US. Many later debates, such as the ‘rules versus standards' dichotomy pervasive in the late 1980s and early 1990s, self-consciously trace their roots to the classic disputes in early 1960s first amendment law. The repeated resurgence and disappearance of these questions supports two related conclusions. First, the basic American meaning of balancing is still strongly connected to its 1950s and 1960s intellectual foundations. And second, the theme of opposition, contrast and tension, that was so important during this foun­dational period, continues to play out also over time, as ‘revisitings' are revisited, and spectres are brought back to haunt again.