In the balance: thoughts on balancing and alternative approaches in state constitutional interpretation.

Author:Balmer, Thomas A.

"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. (10) That approach, in turn, caused the Oregon court to attempt to interpret and apply the words used by the constitution's framers and to look with greater skepticism at balancing tests that weighed competing "interests" not spelled out in the constitutional provisions themselves. Thus, in an array of cases beginning in the late 1970s and early 1980s, the Oregon court identified problems associated with using a balancing approach in constitutional cases and began exploring alternative approaches. (11)

One of the alternative modes of analysis that the Oregon court explored has been called a categorical approach. Like a balancing approach, a categorical approach can take different forms. (12) In Oregon, the court focused on the constitutional text to identify relevant categories of rights, interests, or government actions that the constitution's drafters intended to protect, require, or prohibit. (13) After defining the scope of those categories, the court would determine if the conduct at issue--whether private conduct or government action--came within the constitutionally prescribed category. (14) That determination generally led to the court's resolution of the case, regardless of whether competing "interests," if balanced against one another, might have suggested a different result. (15) For example, if a publication fell within the category of "speech," the government could not regulate that expression--absent a well-established historical exception--even if the government had a compelling reason for doing so. Thus, while the categorical approach allowed the court to avoid the case-by-case weighing of opposing interests, it often required the court to engage in line-drawing when deciding whether a particular private or government action fell within the scope of the category. (16)

Of course, these two approaches did not arise in a vacuum, and they are relevant only in helping to understand how particular constitutional provisions are applied in actual cases. Courts interpreting the constitution must inevitably start with the text, and both a categorical approach and a balancing approach begin from that premise. But the text of provisions found in both the U.S. Constitution and the Oregon Constitution can support both approaches: some constitutional provisions are "impossibly absolute," and others are "inherently indeterminate. (17) For example, as discussed more fully below, article I, section 8 of the Oregon Constitution provides, in part, that "[n]o law shall be passed restraining the free expression of opinion," (18) which appears to be a categorical prohibition of laws expressly restricting free expression. In contrast, article I, section 9 of the Oregon Constitution protects people "against unreasonable search, or seizure" (19) and thus appears to invite case-by-case analysis of what qualifies as unreasonable. Beyond the text, both approaches may also account for values and interests that are not explicitly set out in the text, but that nevertheless underlie the constitutional purposes. The categorical approach maintains its focus on the text by examining the interests that the framers enshrined in the constitution, and the balancing approach maintains its flexibility by focusing on the often more contemporary interests asserted by the parties in a particular case. (20) Thus, while both approaches examine the text and certain values or interests in trying to understand and apply the meaning of a constitutional provision, the approaches diverge in how they define and examine the text and relevant interests.

In this essay, we begin by introducing the "balancing" approach to constitutional adjudication and discussing some of the flaws that the Oregon court perceived in that approach. We then examine Oregon's use of an alternative, categorical approach to interpreting key constitutional provisions, as well as several more recent cases in which the Oregon Supreme Court has seemed to question (or has been asked to question) the implications of a "strong" categorical approach. The essay concludes by suggesting that courts should acknowledge that, while each approach has flaws as a comprehensive theory of constitutional interpretation both approaches can be valuable tools in deciding state constitutional cases.


    Professor Aleinikoff has offered a thoughtful analysis and critique of balancing in federal constitutional decision making. (21) He defines balancing as an approach that identifies the competing interests at stake in a particular case and reaches a decision by assessing the relative values of those interests. (22) Aleinikoff argues that the balancing approach was first explicitly adopted by the U.S. Supreme Court in the late 1930s and early 1940s when the Court began to approve state and federal social legislation that had been held unconstitutional in earlier years. (23) He traces the impetus for balancing back to turn-of-the-century attacks by Holmes and other legal realists on legal formalism and the related push for a more pragmatic approach to constitutional interpretation. (24)

    Aleinikoff suggests that constitutional cases from the first half of the nineteenth century--including leading opinions by Justices Marshall, Story, and Taney--had recognized and addressed the strong competing "interests" often at stake in constitutional adjudication--"federal versus state, public versus private, executive versus legislative, free versus slave." (25) Those cases were not decided, however, by judicial balancing of those interests, but more often were resolved in a "categorical" fashion. (26) Thus, in Cooley v. Board of Wardens, (27) the Court reviewed a state's rule regarding the use of local pilots for ships entering the Philadelphia harbor to determine whether those rules impermissibly...

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