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From Interests-Based Balancing To Rights-Based Balancing: Two Models Of Balancing In The Early Days Of American Constitutional Balancing, Iddo Porat

Iddo Porat

Balancing tests are ubiquitous in current constitutional law. This Article reviews the development of constitutional balancing over the first five decades of the 20th century and identifies the formation of two types of balancing during these years: interests-based and rights-based balancing. Since these two types of balancing are still present within current constitutional law, this review may also help to better understand balancing today. The Article attempts to show how the early development of balancing in the early 20th century by legal Progressives such as Holmes, Pound and Cardozo, was related to their criticism on the jurisprudence of rights, and …