This process is ordinarily called “balancing,” but the scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.Bendix Autolite Corp. v Midwesco Enterprises, 486 U.S. 888, 897 (1988)
Scalia's latest criticism of judicial balancing tests was his shot in Heller at Breyer's "judge-empowering 'interest balancing inquiry' that 'asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other governmental interests.'" (p. 702)
He goes on to say that: "A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all." (p. 703)
Do you see the problem? How do you balance the state's interest in a particular policy against an individual's right to a particular liberty? How "heavy" is the interest and how long is the "right?" Is a 100 pound governmental interest heavier than an individual right that is 100 feet is long? Where in the written Constitution is the table of scales and measures? Or are balancing tests inherently subjective, judge-empowering tests rather than tests designed to interpret the actual meaning of the text of the Constitution?
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