| dc.description.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”. | en |
