BALANCING COSTS IN CONSTITUTIONAL CONSTRUCTION - THE BURGER COURT'S EXPANSIVE NEW APPROACH

• NCJ Number: 64629
• Journal: American Criminal Law Review Volume: 17 Issue: 2 Dated: (FALL 1979) Pages: 160-200
• Author(s): J S ELSON
• Date Published: 1979
• Length: 41 pages
• Corporate Author: American Bar Association
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE COST BALANCING APPROACH OF THE BURGER SUPREME COURT TO INDIVIDUAL RIGHTS VERSUS GOVERNMENT INTERESTS IS VIEWED AS AN UNJUSTIFIED DEPARTURE FROM TRADITIONAL CONSTITUTIONAL ANALYSIS.

Abstract

INTEREST BALANCING HAS HISTORICALLY BEEN LIMITED TO CLOSE CONSTITUTIONAL CASES WHERE CONSIDERATION OF GOVERNMENT NEEDS IS REQUIRED TO ACCOMMODATE UNCERTAIN PURPOSES OF THE CONSTITUTION. GOVERNMENT INTEREST IN REDUCING COSTS HAS BEEN A DECISIVE FACTOR IN BALANCING INTERESTS ONLY WHERE INDIVIDUAL RIGHTS ARE OF MINOR SIGNIFICANCE. SUPREME COURT DECISIONS CONCERNING THE SIXTH AMENDMENT RIGHT TO COUNSEL AND JURY TRIAL INDICATE THAT THE BURGER COURT MAY BE EMPLOYING A NEW MODE OF CONSTITUTIONAL ANALYSIS WHICH PERMITS BROADER CONSIDERATION OF STATE INTERESTS SUCH AS FINANCIAL AID. THIS APPROACH TO INTEREST BALANCING DIFFERS FROM THE PRIOR APPROACH IN THAT IT BALANCES GOVERNMENT INTERESTS INCLUDING FINANCIAL COSTS AS A GENERAL OR PREFERRED METHOD OF RESOLVING CONSTITUTIONAL UNCERTAINTIES. THE BROADENED INTEREST BALANCING APPROACH OF BURGER IS NOT WARRANTED, AND IT IS CONTRARY TO DEMOCRATIC PRINCIPLES LIMITING THE DEGREE TO WHICH CONSTITUTIONAL PURPOSES DEPEND ON MORAL AND SOCIAL VALUES OF JUDGES. A DETAILED ANALYSIS OF THE TRADITIONAL ROLE OF INTEREST BALANCING IN CONSTITUTIONAL ADJUDICATION, THE USE OF FINANCIAL COSTS TO LIMIT THE RIGHT TO COUNSEL AND JURY TRIAL, AND THEORETICAL JUSTIFICATIONS FOR THE BURGER APPROACH IS PRESENTED. CASE LAW IS CITED. (DEP)