In constitutional adjudication, the balancing test is the predominant mode of case resolution, although major differences exist on ‘‘how to strike the balance.’’ The balance that must be struck is between individual freedoms and societal needs such as the need to preserve order. There is only one theory of constitutional decision making in which balancing does not occupy a position—the absolutist position. Proponents—most notably Justice Hugo Black— argued that the specific provisions of the Constitution and Bill of Rights are often stated in absolute terms. For example, when the First Amendment says, ‘‘Congress shall make no law . . . abridging the freedom of speech,’’ Justice Black was fond of saying that this meant ‘‘no’’ law, plain and simple. Most other justices and legal scholars, however, disagree with this absolutist position, and opt instead for balancing between individual liberties and government needs. Some would weigh equally the government’s need and constitutional protections. Greater protection is given to individual freedoms in the famous ‘‘clear and present’’ test. Here governments are forbidden to transgress on protected liberties unless there is both a ‘‘clear’’ and ‘‘present’’ danger. Finally, even more protection is given to individual liberties by the ‘‘preferred position’’ rule. Under this standard, individual protections are to be given very special protection, and only substantial, grave, imminent threats justify government encroachment. Balancing becomes especially acute during crisis times. For example, does/ has/should 9/11 justify tipping the scales more in the direction of government powers, trading off individual liberties to obtain a higher likelihood of safety in our society? What are the costs of these tradeoffs? Balancing allows these decisions to be made but remains silent on any hard and fast rule about how to strike the balance.
References and Further Reading
- Black, Hugo, The Bill of Rights, New York University Law Review 35 (April 1960): 865–31.
- Pritchett, C. Herman. The American Constitution. New York: McGraw-Hill, 1968.