In his Article, Professor Faigman argues that the principal complaint about balancing-that rights and government interests are incommensurable and therefore not amenable to balancing- is misplaced. The so-called apples and oranges complaint assumes that the only way to compare liberty and government interests is through a common denominator. Although liberty and government interests are indeed independent factors, he argues, they are not unrelated. Departing from some of his earlier works on "Madisonian Balancing," Professor Faigman proposes a theory of "Constitutional Modeling," in which he describes how the relationship between liberty and government interests can be delineated through a third factor: constitutionality.
Professor Faigman describes the relationship between liberty and government interests, and their relationship to constitutionality, algebraically. Approaching the problem algebraically rather than arithmetically, Professor Faigman demonstrates how factors can be readily compared, despite the fact that they do not share a common scale and are independent. Describing constitutional adjudication in this algebraic fashion offers several lessons for constitutional analysis. Most importantly, this approach will promote candor and clarity in the debate regarding the nature of individual freedom and the extent of government power.
Finally, Professor Faigman argues for a transactional approach to constitutional adjudication. This perspective would require courts to aggregate rights. Currently, courts routinely aggregate government interests when balancing, yet measure liberty in a fractured and myopic way through the necessarily constricted lenses of individual amendments. A transactional approach would require courts to account for the full liberty infringement suffered by the individual and to measure that liberty against the full government justification for its action.
David L. Faigman,
Measuring Constitutionality Transactionally,
45 Hastings L.J. 753
Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss4/3