Modem constitutional adjudication is often structured as a conflict between individual rights and state interests, which leads courts into the quagmire of balancing. Professor Pildes challenges this dominant modern technique of constitutional interpretation, arguing that, in many cases, balancing is not the best understanding of constitutional reasoning. Rather, constitutional decision making is often a qualitative process, one in which courts define the kinds of reasons for which government may appropriately act in different arenas or spheres.
Borrowing from the philosophy of practical reasoning, Professor Pildes argues that much of constitutional law involves the definition of "exclusionary reasons," which are categorically invalid justifications for state action. Under this view, a central task of constitutional law is to define the principles that give structure to these different spheres of political authority and to measure state action against those principles. Thus, in many cases rights are best understood in structural terms, as devices by which courts define the boundaries between separate spheres of political authority.
The Article first explores certain areas of thought in American political theory and history that recognize the distinctions between the norms governing legitimate state action in different arenas or spheres. Next, Professor Pildes argues that a focus on these distinctions should play a more direct role in constitutional adjudication. Finally, he explores a number of contemporary examples in which this alternative approach, rather than the "balancing" metaphor, better explains the process of constitutional reasoning.
Richard H. Pildes,
Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law,
45 Hastings L.J. 711
Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss4/2