Unfinished Liberties, Inevitable Balancing

Abstract

In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is bound to fail. Though avoidable for many constitutional rights, balancing is inevitable for general liberties like religion, the Second Amendment, and speech. This inevitability arises not from gaps in text or history but from these liberties’ special role.

General liberties are irreducibly open-ended—not reducible to finite lists of specific laws or regulatory motives to be excluded. Thus, free speech is more than the sum of discrete rights to parade, burn flags, and give offense. Such liberties curb laws that differ unforeseeably in which interests they advance and how much. This makes it impossible for the Founders or anyone to say in advance when general liberties might (if applied categorically) come to block laws too important to give up. Hence the greater need to fix these rights’ scope over time—not just through close analogical reasoning where text or history is vague but through looser normative reasoning in core cases. The task of drawing these rights’ contours is thus always and necessarily unfinished. This account powerfully explains many otherwise bizarre features of the doctrinal histories of guns, religion, and speech. And it leaves foes of judicial balancing one option: to embrace more popular enforcement of liberties.