Origins: two sets of debates
For all its present day global pervasiveness, the discourse of balancing in constitutional rights adjudication has remarkably concentrated origins. It exploded onto the constitutional scene, as it were, in very similar circumstances, and at almost exactly the same time.
Balancing first explicitly surfaced in a handful of major decisions of the German Bundesverfassungsgericht and of the US Supreme Court of the late 1950s and early 1960s. The synchronicity is striking. The Bundesverfassungsgericht's first seminal balancing decision, in the Luth case, dates from January 1958, while a balancing war erupted on the US Supreme Court mainly over cases decided between 1959 and 1961.[91] In both settings, balancing was first referred to and discussed in the area of free speech adjudication. But it quickly spread - as lens, if not quite so clearly as doctrine - to other areas of constitutional law.[92] A further point of commonality is that in both settings, these first discussions of balancing in constitutional law self-consciously and explicitly relied on earlier theoretical work on balancing. This earlier work was again carried out virtually contemporaneously, in the first decades of the twentieth century, by scholars of the Interessenjurisprudenz in Germany and by adherents of Sociological Jurisprudence in the US.These two great parallel debates on the nature, virtues and flaws of balancing that ensued from the early Supreme Court and Bundesverfassungsgericht cases of the late 1950s and early 1960s form the main subject of comparative investigation in this book, in Chapters 3 and 4. This account will, in Chapter 2, be grounded, just as in these original debates themselves, in a comparative study of the earlier phase in balancing's genealogy in the Interessenjurisprudenz and Sociological Jurisprudence. For both sets of debates, every effort will be made to present balancing as it was discussed - whether as free speech law, constitutional rights law, constitutional law generally or even law as a whole - and in the terms and analytical categories adhered to by participants at the time.
There are a number of reasons for taking a historical approach to the discourse of balancing, and for taking this particular approach specifically.
In general terms, a historical investigation fits well with the aim of trying to unpack the meaning of balancing. All legal language comes with baggage from its earlier uses. Even if we are now convinced that earlier debates were unfortunate and misconceived, they still influence what this language stands for today, informing the associations made - wittingly and unwittingly - by contemporary actors.[93] From that perspective, the German and US debates on balancing are still without doubt the most influential historical sources for the contemporary meaning of balancing.[94]More particularly, though, this book deliberately relies on narrowly focused case studies, as part of an effort to pierce the veil of similarity that shrouds contemporary balancing discourse. The idea that language of balancing will always mean more or less the same thing itself originates in the earlier discussions canvassed here. All throughout the twentieth century, commentators have pointed out ‘basic similarities' between first Interessenjurisprudenz and Sociological Jurisprudence, and later the Bundesverfassungsgericht’s and the US Supreme Court's uses of balancing in constitutional rights decisions.[95] Those impressions also sustain the persistent attraction of broad, similarity-focused comparative accounts of balancing and proportionality. Showing how, in fact, both these earlier episodes, for all their remarkable similarities, were also characterized by crucial differences, should be an important step towards dismantling overbroad claims for a global age of balancing today.