Balancing, Constitutional Review, and Representation

Abstract

Balancing is one of the main issues in current debates on the interpretation of constitutional rights. Numerous authors have raised the objection that balancing is both irrational and subjective. It is argued that this objection is unjustified. To show this, balancing is embedded in a theory of discursive constitutionalism that connects the concept of balancing with the concepts of constitutional rights, discourse, constitutional review, and representation. The main theses are these: first, balancing is based on a rational form of argument that can be made explicit by means of the Weight Formula, and second, constitutional review comports with the requirements of democratic legitimation to the extent that it succeeds in becoming an argumentative representation of the people.