Constitutional Law in the Age of Balancing

Balancing: The metaphoric term generally used in the law to describe an exceedingly important conceptual operation. In almost all conflicts, especially those that make their way into a legal system, there is something to be said in favor of two or more outcomes. Whatever result is chosen, someone will be advantaged and someone will be disadvantaged; some policy will be promoted at the expense of some other. Hence it is often said that a "balancing operation" must be undertaken, with the "correct" decision seen as the one yielding the greatest net benefit. That some such process must be a part of any practical legal system is undeniable. But that should not blind us to the extreme danger of too facile a use of "balancing" in a system of justice.'