The Reasonable Adjustment of Basic Liberties. Liberalism and Judicial Balancing

The contribution focuses on the “balancing” approach to constitutional adjudication, conceived as a decisional technique establishing a “reasonable” equilibrium among conflicting norms, values, and interests of constitutional rank, so as to adjust the abstract form of the law to the concrete needs. I outline the balancing techniques 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, for historical and ideological reasons, being regarded as a threat for the priority of rights. Focusing on the controversial interconnection between liberal constitutionalism and judicial balancing, I draw on John Rawls’ account of practical reasoning over constitutional essentials and argue that the ideas of reasonableness and public reason, along with the nested idea of reciprocity, provide judicial balancing with a theoretical foundation and a normative framework which bring proportionality analysis together with the primacy of rights. In this perspective, I analyse how this framework should apply to constitutional adjudication and claim that the reasonable, here, requires: (1) a balancing of reasons and arguments in terms of “proportionality as reciprocity”, and (2) a sliding-scale exercise of public reason, so as to adapt the theoretical density and ambitiousness of the judicial-balancing discourse to the different levels of abstraction required, from time to time, in the forum of constitutional justice.