In the Balance: Thoughts on Balancing and Alternative Approaches in State Constitutional Interpretation

Article excerpt

"Thou art weighed in the balances, and art found wanting." (1)

The scales Lady Justice holds conjure notions of balance and fairness because the scales "may be the mechanism by which ... a person 'receives that which is due, ... no more and no less." (2) The scales can represent the ways in which courts balance competing interests in a particular case. However, "[t]he scales, like the sword, have potential for absolute rather than compromised outcomes." (3) This essay explores the different ideas represented by the scales, examining two approaches to constitutional adjudication: one approach has been described as a "balancing" approach and the other approach may be called a categorical approach. In particular, this essay examines the two approaches from the perspective of Oregon courts, which have identified problems associated with a balancing approach and yet have found it difficult to abandon balancing altogether.

Like other descriptions used in discussing constitutional interpretation, the labels "balancing" and "categorical" are necessarily imprecise. As we discuss below, what we call here the "categorical" approach is sometimes associated with what others have described as "modest literalism" and also "textualism." It does not necessarily imply the "originalist" textualism often associated with Justice Antonin Scalia, although it has similarities to that approach--and, as we argue, some of the same strengths and weaknesses as a way of deciding constitutional cases. "Balancing," too, is an imprecise term, but, as we elaborate below, it captures one common way in which courts interpret and apply constitutional (and other) texts.

Moreover, although this essay at times discusses the balancing approach and the categorical approach as methods of constitutional "interpretation," they might more accurately be called methods of constitutional "adjudication" or "application." "Interpretation" suggests examining the meaning of a constitutional provision as a conceptual matter. The balancing approach and the categorical approach, however, are ways of understanding how constitutional text operates in particular cases, which, of course, is the way constitutional law proceeds. Rather than defining one word or phrase in the constitution--what does "unreasonable" or "expression" mean--those approaches analyze how a constitutional provision functions in relation to a set of facts: Is a police officer's warrantless search of the curtilage unreasonable? Is an advertisement on a city bus protected expression? Nonetheless, because most scholarly discussions regarding the balancing and categorical approaches speak in terms of "interpretation," and because "interpretation," broadly defined, could be said to include adjudication and application, we use that word in this essay.

Although a balancing approach can take different forms, at its core, balancing as a means of deciding constitutional cases involves weighing the competing interests implicated by the constitutional provision at issue in light of the facts of a particular case. (4) Balancing may, at least in some cases, stand in contrast to a textual approach to constitutional interpretation; because the constitutional provisions under consideration rarely use the words "balancing" or "interests," the balancing approach often requires courts to look beyond the text in considering the interests at stake. (5) Even when the constitutional text arguably invites balancing, such as when the constitution uses the word "unreasonable," (6) the interests to be balanced will not necessarily be found in the text. (7)

The balancing approach is ubiquitous in federal constitutional analysis. (8) It also appears in cases in state courts, particularly when state courts apply federal constitutional analysis in the interpretation of state constitutional provisions that have federal analogues. (9) In Oregon, which embarked on a path of independent interpretation of its own constitution some thirty years ago, the Oregon Supreme Court shifted to a greater emphasis on the text of the constitutional provisions that it was interpreting. …