Jump to ContentJump to Main Navigation
Show Summary Details
More options …

Law & Ethics of Human Rights

Editor-in-Chief: Stopler, Gila

Editorial Board: Benvenisti, Eyal / Cohen-Eliya, Moshe / Macedo, Stephen / Rosenblum, Nancy


CiteScore 2018: 0.19

SCImago Journal Rank (SJR) 2018: 0.118
Source Normalized Impact per Paper (SNIP) 2018: 0.225

Online
ISSN
1938-2545
See all formats and pricing
More options …
Volume 4, Issue 1

Issues

A Democratic Defense of Constitutional Balancing

Stephen Gardbaum
Published Online: 2010-04-30 | DOI: https://doi.org/10.2202/1938-2545.1045

We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives.It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses; (3) explaining balancing's rise to dominance; (4) advancing critiques of balancing; and (5) rebutting these critiques.In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review.

Keywords: constitutional balancing; democratic defense; comparative law; constitutional rights; proportionality

About the article

Published Online: 2010-04-30


Citation Information: Law & Ethics of Human Rights, Volume 4, Issue 1, Pages 79–106, ISSN (Online) 1938-2545, DOI: https://doi.org/10.2202/1938-2545.1045.

Export Citation

©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston.Get Permission

Citing Articles

Here you can find all Crossref-listed publications in which this article is cited. If you would like to receive automatic email messages as soon as this article is cited in other publications, simply activate the “Citation Alert” on the top of this page.

[2]
VLAD PERJU
Global Constitutionalism, 2012, Volume 1, Number 02, Page 334

Comments (0)

Please log in or register to comment.
Log in