Introduction

1. Two debates

During a remarkably concentrated period in the late 1950s, the German Bundesverfassungsgericht and the US Supreme Court, as well as academic commentators in their two jurisdictions, first began to use the language of balancing in relation to constitutional rights adjudication.

It is striking how quickly and how completely ‘balancing' came to dom­inate discussions on freedom of expression adjudication, in Germany and in the US.^[286] These early debates shared a number of intriguing charac­teristics. To begin with, judges and commentators quite visibly operated on the basis of a widely shared understanding that balancing actually ‘was something’. That is, they generally seem to have held the view that the language of balancing, in these free speech opinions but also in other contexts, referred to a discrete and in some way coherent set of practices and ideas that could cogently be discussed and contrasted with alterna­tives. The precise nature of these practices, of course, was a major point of contention. Second, the courts' balancing language was generally taken to refer to something new. Balancing language denoted the incidence of doctrines, methods and sensibilities within constitutional jurisprudence that had not been present in the same way at earlier times. Third, most of these same judges and commentators apparently believed that differ­ent positions on balancing mattered in one or more ways.

2. Argument: synthesis and paradox

This chapter and the next chart the rise of balancing language as a prominent feature within constitutional rights adjudication in postwar Germany and the US. Their aim is to unearth the ‘zugrunde liegende Vorstellung’, (‘the underlying general conception'), the pervasive associ­ations, the aspirations held out for and critiques raised against balancing, by judges, primarily those of the Bundesverfassungsgericht and of the US Supreme Court, and by their surrounding communities of constitutional legal scholars and commentators in the US and Germany.

Summarily stated, my argument in these chapters is as follows. While American balancing discourse is characterized by pervasive antinomies, balancing in the German constitutional landscape of the time is the prin­cipal embodiment of one of the most significant and successful efforts at overcoming these same basic oppositions in modern constitutional jurisprudence. While American constitutional jurisprudence continu­ously draws fundamental distinctions between ‘pragmatic action' and ‘reasoned deliberation', between ‘policy' and ‘principle' and between the substantive and the formal, always relegating balancing firmly to one side of these dichotomies, German constitutional jurisprudence has managed, to a large extent, to fuse these elements, adopting balancing as the main vehicle of a jurisprudence that casts the pragmatic as reasoned, policy as principle and the substantive as formal.

This chapter elaborates the first leg of this argument. The German idea of ‘balancing as synthesis', I argue, lies at the heart of a conception of ‘the perfect constitutional order' that dominated early postwar German legal thinking.^[288] The ideas associated with the language of balancing are simul­taneously the principal expression of, and a crucial source of support for, this notion of constitutional legal perfection. That concept, in turn, can be disaggregated into the twin postulates that the constitution should be the expression of a constellation of ‘material' or ‘substantive' values, and that this constellation should somehow encompass as much of the reality of public and private life as possible. Judicial balancing figured at the centre of each of these two related visions, reflecting and sustaining both.

Both these strands, of ‘material' and of ‘comprehensive' constitution­alism, are pervasive features of early postwar German legal life. They represent particularly influential efforts at transcending traditional oppositions in constitutional thinking, including notably between the formal and the substantive in constitutional law. That specific dichot­omy will be taken up again in Chapter 5. ‘Material constitutionalism', I will argue there, is a dominant German expression of ‘the substantive' in law. This particular German version, however, is in many ways much more heavily formalized than its US counterparts, such as ‘policy', ‘pragmatism' or ‘instrumentalism'. ‘Comprehensive constitutional­ism', in turn, will be identified as a prominent German expression of legal formality. In this regard, the argument will be that by nudging legal actors towards the pursuit of completeness and ‘perfection', com­prehensive constitutionalism exercises a compelling and constraining force very similar to the power attributed to expressions of legal formal­ity more familiar in American law, such as per se rules or hard-edged definitions.

These three ideas of ‘the formal' as comprehensiveness and perfection, ‘the substantive' as material constitutionalism and the formal-substan­tive interrelationship as synthesis will serve in Chapter 5 to frame a local German meaning of balancing that is radically different from notions familiar in US legal thought.

3. Balancing and freedom of expression: textual foundations

Before turning to the relevant Bundesverfassungsgericht case law and associated commentary, a brief comparative look at the textual founda­tions for the constitutional protection of freedom of expression in the US and Germany is necessary. This is in order to answer a basic ques­tion: to what extent did these written source materials dictate, or at least make more likely, resort to some kind of balancing approach in either system?

A quick glance reveals that the textual foundations for the protection of expression in the US and in Germany are at once highly similar and utterly different. The first amendment to the US Constitution, on its face, famously appears to forbid any kind of limitation of the freedom to speak, providing:

Congress shall make no law abridging the freedom of speech.

Art. 5 Grundgesetz (GG, or Basic Law), on the other hand, in its paragraph 2, would seem to allow virtually any kind of limitation,^[289] providing:

1. Every person shall have the right to freely express and disseminate his opinion in speech, writing, and pictures [Th Freedom of the press and the freedom of reporting by means of broadcasts and films shall be guaranteed.

2. These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.^[290]

In a sense, both provisions are worded in absolute terms. The first amendment, on its face, providing for unqualified protection of speech, and Art. 5 Basic Law allowing unqualifiedly for limitation by way of ‘general laws', in addition to limitations specifically for the protection of youth and personal honour.^[291] Neither the US nor the German guarantee, then, offers any clear textual basis for an explicit weighing of competing values or interests. Neither provision in fact offers an indication of any kind of relationship or comparison at all - whether expressed in terms of balancing or otherwise - between the nature or value of expression on the one hand and the nature or value of its limitations on the other.

That some form of limitation or qualification had to be attached to these two seemingly absolute provisions was, of course, inevitable. Neither unqualified protection for expression nor the unqualified permission of its abridgement is tenable on any generally accepted theory of this right. What was not inevitable, though, was the resort to nearly identical lan­guage in giving shape to these qualifications. And what was certainly not inevitable, and what makes a comparative analysis of the work of these two courts during this period so intriguing, is that this language should come to dominate so much of our thinking about constitutional adjudi­cation generally.

B.