The Reasonable Adjustment of Basic Liberties. Liberalism and Judicial Balancing

Abstract

This paper focuses on the “balancing” model of constitutional adjudication, conceived as a decisionmaking approach aimed to establish a “reasonable” equilibrium among conflicting norms of constitutional rank, so as to adjust the abstract form of the law to concrete needs. I outline the balancing models which are dominant in practice and stress their argumentative structure: on the one hand, the model centered on proportionality analysis that has been spreading over Europe and at a transnational level; on the other hand, the model adopted in the US context, where proportionality analysis meets a strong resistance and is regarded, for historical and ideological reasons, as a threat for the priority of rights. Focusing on this controversial aspect of the interconnection between liberal constitutionalism and judicial balancing, I draw on John Rawls’ account of practical reasoning to outline a model of constitutional adjudication that brings balancing and proportionality analysis together with the priority of rights. In this perspective, I argue that the Rawlsian idea of reasonableness, along with the nested idea of reciprocity, provides the balancing approach with a theoretical foundation and serves as the unitary argumentative guideline along which the exercise of public reason unfolds - from the foundational level to the applicative level - by mutually adjusting conflicting values and goods under some rules of priority and the criterion of “proportionality as reciprocity”.