Julian Sanchez writes:
Reading Orin Kerr’s new paper outlining an “equilibrium-adjustment theory” of the Fourth Amendment, I found myself reflecting on how thoroughly the language of “balancing” pervades our thinking about legal and political judgment. The very words “reasonable” and “rational” are tightly linked to “ratio”—which is to say, to relative magnitude or balance. We hope to make decisions on the basis of the weightiest considerations, to make arguments that meet their burden of proof. We’re apt to frame almost any controversy involving heterogenous goods or values as a problem of “striking the right balance” between them, and many of those value dichotomies have become well worn cliches: We’ve all seen the scales loaded with competing state interests and individual rights; with innovation and stability; with freedom and equality; with privacy and security. There’s obviously something we find natural and useful about this frame, but precisely because it’s so ubiquitous as to fade into the background, maybe it’s worth stopping to unpack it a bit, and to consider how the analogy between sound judgment and balancing weights may constrain our thinking in unhealthy ways.
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