While many commentators have disputed the merits of the balancing approach to constitutional interpretation, as opposed to the more formalistic categorical approach, Professor Sheppard argues in this Article that the two approaches are not mutually exclusive. Rather, he argues that both approaches involve a reduction of the arguments of each party to a description of an interest. As a result, the Court's adjudication of arguments between individuals and government turns not so much upon the method of comparison as upon the means by which those arguments are reduced to interests.
With this in mind, Professor Sheppard examines the method by which individual and government interests are defined, then considers current difficulties of defining those interests in the absence of effective rules for doing so. Drawing from the theory of legal perfectionism, Professor Sheppard recommends analyzing "unfocused" interests-particularly the government interests represented by the state's broad police power-as a function of the level of scrutiny necessary to satisfy the requirements of due process of law. Finally, Professor Sheppard suggests that courts should engage in a review of the rational relationship between a statutory means and the moral end of "unfocused" police powers laws-to evaluate morals laws according to whether a citizen could understand the morality the law is supposed to enshrine.
The State Interest in the Good Citizen: Constitutional Balance between the Citizen and the Perfectionist State,
45 Hastings L.J. 969
Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss4/9