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

By Balmer, Thomas A.; Thomas, Katherine | Albany Law Review, Summer 2013 | Go to article overview

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


Balmer, Thomas A., Thomas, Katherine, Albany Law Review


"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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.