Judicial Balancing

Introduction Legal conservatives have long opposed balancing in constitutional cases, and the Supreme Court has taken up the cause.[footnote]See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1185 (1989) [hereinafter Scalia, The Rule of Law] (condemning “standardless balancing” by judges); see also N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129 (2022) (rejecting “any ‘judge-empowering “interest-balancing inquiry”’” (quoting District of Columbia v. Heller, 554 U.S. 570, 634 (2008))).[/footnote] Everyone agrees that rights should be “balanced” to serve good ends at tolerable costs. The question is whether rights will be balanced not just by their framers but also by those applying them over time. The Court is trying to avoid balancing in application—which it seems to understand loosely to mean determining a right’s contours based on highly general political-moral considerations (like competing public interests), not just text, history, and narrow analogies.[footnote]See infra section I.B. Some reserve the word “balancing” for direct cost–benefit analysis, which is just one instance of the category of analysis that this Article shows one cannot avoid every instance of: freeform political - moral reasoning about when the interest underlying a right is too light or when enforcing the right would unacceptably undermine other aspects of the common good. The narrower, cost–benefit sense of “balancing” may be more natural, and I doubt balancing in that sense is coherent in many cases, much less inevitable. See infra note 159. Still, conservative Justices use “balancing” to mean the broader category, and it’s their campaign that this Article addresses, so “balancing” will be used to state this Article’s inevitability thesis. Thanks to Professor Larry Solum for helpful discussion on this point among many.[/footnote] The effort to avoid balancing reached a crescendo in New York State Rifle & Pistol Ass’n v. Bruen ,[footnote]142 S. Ct. 2111 (2022).[/footnote] which replaced circuit courts’ Second Amendment balancing with a “history and tradition” test.[footnote]See infra section III.B.2.a.[/footnote]That’s unsurprising: Circuit courts’ particular sort of balancing in gun cases needed reforming, having hollowed out an enumerated right.[footnote]See United States v. Rahimi, 144 S. Ct. 1889, 1909 (2024) (Gorsuch, J., concurring) (“How did the government fare under [the pre- Bruen ] regime? In one circuit, it had an ‘undefeated, 50–0 record.’” (quoting Duncan v. Bonta, 19 F.4th 1087, 1167 n.8 (9th Cir. 2021) (en banc) (VanDyke, J., dissenting))).[/footnote] (Lower court decisions upholding the law in Bruen proved the point.[footnote]See infra note 339 and accompanying text (arguing that Bruen should have rested on the fact that the challenged law blocked most people’s ability to carry at all).[/footnote]) But the Court also hoped to avoid balancing more broadly, based on democratic legitimacy concerns that this author shares. For deep reasons, however, the broader campaign to avoid balancing is bound to fail.

True, as Bruen noted, some rights provisions—like the Confrontation[footnote]U.S. Const. amend. VI; see also infra note 237 and accompanying text.[/footnote] and Establishment Clauses[footnote]U.S. Const. amend. I; see also Stephanie H. Barclay, Replacing Smith , 133 Yale L.J. Forum, 436, 442 (2023), https://www.yalelawjournal.org/pdf/ BlarclayYLJForumEssay_33fxoyey.pdf [https://perma.cc/TJ4V-XCHN] [hereinafter Barclay, Replacing Smith ] (“The Establishment Clause generally gives rise to categorical, rather than rebuttable, prohibitions.”).[/footnote]—can be applied without balancing except at the semantic margins.[footnote]See N. Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022) (noting that courts consult history, not balancing tests, when enforcing the Confrontation and Establishment Clauses).[/footnote] But balancing at the right’s semantic core is inevitable for what this Article will call general liberties , including free speech,[footnote]U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”).[/footnote] free exercise,[footnote]Id. (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”).[/footnote] and Second Amendment rights.[footnote]Id. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”).[/footnote] General liberties are rights that shield some conduct from indefinitely varied regulations. They differ from the kinds of rights Bruen held up as examples: rights defined by the specific regulations they exclude (like religious establishments) and positive rights to government resources (like a chance to confront witnesses).[footnote]See Bruen , 142 S. Ct. at 2156. Though some reserve the word “right” for categorical protections, here it will also cover presumptive protections that can be overridden. “Liberties” will denote rights against regulation of private conduct. And “balancing a liberty against public interests” will be shorthand for so balancing the interests underlying a liberty. Nothing substantive turns on these terminological choices.[/footnote] With general liberties especially, the framers cannot do the needed balancing and adjusting of scope. So the rights’ implementers must balance on a rolling basis. It’s not that they must inevitably apply their own high-level moral theory (say, Judge Richard Posner’s wealth-maximization view[footnote]For an account of Judge Posner’s normative legal theory of wealth maximization, see generally Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. Legal Stud. 103 (1979).[/footnote]).[footnote]See infra notes 163–169 and accompanying text (arguing that it is not inevitable, and is undesirable, that courts apply their own moral theories).[/footnote] They might channel a rights theory ascribed to the framing generation.[footnote]See Steven J. Heyman, Righting the Balance: An Inquiry Into the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275, 1279–80 (1998) (contrasting “natural rights theory,” which would limit free speech “by the rights of others” with “utilitarianism, which repudiated the concept of natural rights” and framed cases “as clashes between free speech and ‘social interests’”).[/footnote] But they will inevitably rely on some broad normative considerations (competing rights or public interests) to draw and redraw the right’s contours—which falls within the Court’s critique of balancing as a way of “decid[ing] . . . case-by-case . . . whether the right is really worth insisting upon.”[footnote] Bruen , 142 S. Ct. at 2129 (internal quotation marks omitted) (quoting District of Columbia v. Heller, 554 U.S. 570, 634 (2008)). For a survey of legal conservatives’ compelling concerns about balancing, see infra section I.B.1; see also infra notes 163–169 and accompanying text (arguing that those concerns are not fully assuaged by restricting judges to relying on the framers’ moral theory of rights).[/footnote] This inevitability flows not from general liberties’ vagueness, breadth, or sparse text or history, but from their special role. Their purpose doesn’t preclude balancing, as critics say,[footnote]See, e.g., Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1449 (1962) (arguing that balancing undercuts the First Amendment’s “function as a constitutional limitation” and “virtually converts that amendment into its opposite” by turning “[a] prohibition against abridgment” into “a license to abridge”); see also Bruen , 142 S. Ct. at 2129 (arguing that “[t]he very enumeration of the right” precludes balancing and that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all” (first alteration in original) (internal quotation marks omitted) (quoting Heller , 554 U.S. at 634)).[/footnote] but compels it.

General liberties offer adaptive protection, guarding certain conduct against whatever threats it might face as regulatory needs change.[footnote]See infra section II.A.1.[/footnote] So while all constitutional norms are “adaptive” in applying to many entities in many times and places, a general liberty varies in another way: in the types of regulation it protects against. For this, it must be irreducible to any finite list of specific regulations excluded. The liberty’s scope cannot be concretely specified at its framing or any later point[footnote]Cf . United States v. Rahimi, 144 S. Ct. 1889, 1925–26 (2024) (Barrett, J., concurring) (noting that the Second Amendment “does not apply only to the catalogue of arms that existed in the 18th century, but rather to all weapons satisfying the ‘ general definition ’ of ‘bearable arms’” (emphasis added by Rahimi , 144 S. Ct. at 1926) (quoting Bruen , 142 S. Ct. at 2132)).[/footnote]—not even to a close approximation (which might’ve cabined later balancing to close analogical reasoning at the margins).[footnote]A right specified to a close approximation might be defined as, say, “protection from religious tests for office and their close analogues.” See infra section I.B.2 (defining the “close analogical reasoning” needed to apply such a right and its contrasts with the balancing that legal conservatives oppose).[/footnote] For example, free speech is not just shorthand for discrete rights to burn flags,[footnote]See Texas v. Johnson, 491 U.S. 397, 399 (1989) (invalidating a conviction for flag-burning in protest).[/footnote] parade,[footnote]See Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 559 (1995) (protecting parade organizers’ discretion to reject floats bearing messages they oppose).[/footnote] and preach at street corners.[footnote]See Cantwell v. Connecticut, 310 U.S. 296, 306–07 (1940) (invalidating a licensing requirement for religious solicitation).[/footnote] Nor does it just forbid laws clearly serving illicit goals like the quashing of offensive speech.[footnote]See Johnson , 491 U.S. at 414 (“[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).[/footnote] Its scope can only be defined in presumptive terms that invoke the values or “rationale underlying” it.[footnote]Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899, 909 (1979) [hereinafter Schauer, Speech and “Speech”]; see also Frantz, supra note 18, at 1442 (“As treated by the balancing test, ‘the freedom of speech’ . . . is not affirmatively definable. It is defined only by the weight of the interests arrayed against it and it is inversely proportional to the weight accorded to those interests.”).[/footnote]

The special need to balance arises from this irreducible open-endedness of general liberties: their being defined so that they could always adapt to block new laws, laws serving different aims to different degrees. Since by design the framers couldn’t have foreseen which laws might be blocked, they couldn’t have shrunk the liberty to allow for laws that would prove crucial. They could not have done the balancing and trimming up front even with endless time, precise words, and reams of text. That’s why implementers will need to balance over time.[footnote]See infra section II.A.3.[/footnote] It’s why general liberties’ creation—the shaping of their core based on political-moral reasoning—is always necessarily unfinished .[footnote]Many critics of balancing think that a norm is purely legal only insofar as it can be applied without moral or policy reasoning. See infra notes 125–128 and accompanying text. It’s against this backdrop that one might call a legal norm “unfinished” if its application requires some additional political-moral reasoning.[/footnote]

The Court’s anti-balancing effort is abetted by a surprising dearth of arguments that balancing is inevitable.[footnote]Three related works are worth flagging. Professor Richard Fallon’s book on rights takes “strict scrutiny as a starting point” and uses “reverse-engineering” to “work out what is or must be true about the nature of constitutional rights for them to be defined and applied” using that test, which Fallon then shows (at length) will involve balancing. See Richard H. Fallon, Jr., The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 4, 67 (2019) [hereinafter Fallon, Nature of Constitutional Rights]. Fallon then shows (at length) that this test will involve balancing. See id. This Article questions what Fallon’s analysis takes as fixed. It asks whether some alternative to strict scrutiny or other balancing tests could be used—and answers “no” for certain rights based on their function. If Fallon shows that strict scrutiny involves balancing, this Article shows that one cannot avoid balancing by replacing strict scrutiny and similar tests. Professor Fred Schauer argues that the scope of free speech makes it hard to build all needed exceptions “into our definition of a [free speech] right absolute in strength.” Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 277 (1981) [hereinafter Schauer, Categories and the First Amendment]. This Article clarifies the kinds of scope that do and don’t induce balancing, see infra sections II.A.1–.2; explains why a balancing-inducing scope is crucial to the function of not just speech but also other general liberties, see infra section II.A.1; shows how the resulting balancing runs afoul of the vision of judging behind the originalist movement, see infra Part I; and canvasses solutions for judicial balancing’s foes, see infra Part IV. Finally, an unpublished essay by Professor Larry Sager, brought to my attention by a reader, argues that some rights create Kantian “imperfect duties” that are defined “by an underlying set of values and desired outcomes rather than by a catalog of specific behaviors” and that therefore require “judgement and discretion” in core applications. See Larry Sager, Imperfect Constitutional Duties 1–2 (March 2024) (unpublished manuscript) (on file with the Columbia Law Review ).[/footnote]Landmark works debate whether balancing is desirable,[footnote]See Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart 89–90 (2021) [hereinafter Greene, How Rights Went Wrong] (“The rights Americans enjoy should depend on what the government has done to us and why it has done it . . . .”); see also Aharon Barak, Proportionality: Constitutional Rights and Their Limitations 8 (2012) (“[P]roportionality suffers from many shortcomings; still, none of the alternatives is better—or even as good as—proportionality itself.”). For two bookends to voluminous scholarship, see generally T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375 (2009). For early interventions, see Frantz, supra note 18, at 1429–49 (critiquing the Supreme Court’s balancing approach to free speech that was spearheaded by Justice Felix Frankfurter); Wallace Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 Calif. L. Rev. 821, 821 (1962) (responding to Frantz’s critique). For a recent book-length treatment of the desirability of balancing in speech cases, see generally Alexander Tsesis, Free Speech in the Balance (2020).[/footnote] thus presupposing it’s avoidable (why else bother arguing for or against it?). Some scholars suggest that balancing is required by a right’s vague language, broad readings,[footnote]See Philip Hamburger, More Is Less, 90 Va. L. Rev. 835, 837 (2004) (“[W]hen the right of free exercise of religion came to be defined broadly, it was rendered conditional on government interests.”).[/footnote] or thin historical records.[footnote]See, e.g., Mendelson, supra note 30, at 821 (noting the First Amendment’s “highly ambiguous” “language” and “history”); see also Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 867 (1960) (critiquing balancing but bracketing questions about “the marginal scope of each” right); cf . Timothy Endicott, Proportionality and Incommensurability, in Proportionality and the Rule of Law: Rights, Justification, Reasoning 311, 324 (Grant Huscroft, Bradley W. Miller, & Grégoire Webber eds., 2014) (finding balancing unavoidable in private law and sentencing).[/footnote] But many texts with these features are implemented with little balancing beyond modest analogical reasoning in marginal cases.[footnote]See infra section I.B.2.[/footnote] So arguments stressing these factors have left it open to balancing’s critics to say that looser balancing, and balancing in core cases, should be as rare for religion, speech, and guns as it is for Confrontation Clause rights.[footnote]See infra section I.A.[/footnote] To prove that campaign hopeless, this Article identifies obstacles more peculiar to general liberties. While that more specific inevitability claim might strike some as obvious, to half the judiciary and many scholars such balancing seems obviously worth avoiding.[footnote]See infra Part I; see also Joel Alicea & John D. Ohlendorf, Against the Tiers of Constitutional Scrutiny, Nat’l Affs., Fall 2019, at 72, 73 (critiquing a balancing approach to rights as faithless to the Constitution and inappropriate for judges); John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. Ill. L. Rev. 737, 767 (arguing against leaving the balancing of free speech “to future interpreters”).[/footnote] That’s why the Court is trying to reduce it, with leading judges pressing it to go farther.[footnote]See Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, 117 F.4th 389, 398–401 (6th Cir. 2024) (Thapar, J., concurring) (calling for the replacement of tiers of scrutiny with a Bruen -style history-and-tradition approach in free speech cases); Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1261 (11th Cir. 2022) (Newsom, J., concurring in part and concurring in the judgment) (critiquing First Amendment “doctrinal bloat” and arguing for a “text and history” approach akin to Bruen ’s).[/footnote]

I share critics’ concerns about balancing. I do not think that balancing is endemic to constitutional law or that the law/politics distinction is everywhere hopelessly porous. As an originalist,[footnote]For a discussion of the sort of originalism I find compelling, see generally Jeffrey Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 Geo. L.J. 97 (2016) (developing, with some modifications, the theory propounded in Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J. L. Pub. Pol’y 817 (2015)).[/footnote] I think federal judges have only those powers lawfully delegated to them by the people and that these include no general power to balance constitutional norms. Judges’ doing so generally usurps the people’s right to make major policy choices not settled by higher law. (While some rights were originally understood to require balancing in application, their enshrinement was not originally understood to authorize judges to do the balancing.[footnote]See infra section III.A. If originalism and distaste for broad judicial discretion pulled in opposite directions—because the Constitution, as originally understood, gave judges broad discretion—I would follow the lead of originalism. Professor Joel Alicea has argued that the Second Amendment does delegate broad discretion. See J. Joel Alicea, Bruen Was Right, 174 U. Pa. L. Rev. (forthcoming 2025) (manuscript at 65–66), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5122492 [https://perma.cc/K2ER-XAH8] [hereinafter Alicea, Bruen Was Right]. Yet Alicea believes that courts’ resulting reliance on highly general normative principles does not run afoul of Bruen ’s critique of balancing because Bruen left room for analogical reasoning. See id. (manuscript at 67–68). By contrast, I read Bruen as insisting that such reasoning use only fairly narrow, concrete standards. That reading is reinforced by writings in other cases by some members of Bruen ’s majority, as Alicea notes, see id. (manuscript at 34), but also by Bruen ’s embrace of accounts of analogical reasoning that make such narrowness and concreteness integral to it—and by the need to distinguish the reasoning that Bruen meant to allow from the looser analogical reasoning that defines originalism’s arch-rival, common law constitutionalism. See infra section I.B.2.[/footnote]) And some courts have clearly overstepped by using balancing to gut, rather than carefully implement, enumerated rights.[footnote]See supra notes 5–6 and accompanying text.[/footnote] Courts should do all they can to avoid or tame balancing, consistent with the Constitution’s original understanding and stare decisis.[footnote]For ways to discipline balancing doctrines, see Gabrielle M. Girgis, Taming Strict Scrutiny, 76 Fla. L. Rev. (forthcoming 2025) (manuscript at 26–39), https://ssrn.com/abstract=4742225 [https://perma.cc/CEY3-FPNV] [hereinafter G. Girgis, Taming Strict Scrutiny].[/footnote] But having come to think balancing is inevitable for general liberties , I doubt courts can avoid it while remaining the sole enforcers of these rights.[footnote]As noted above and discussed below, courts can avoid applying their own overarching moral theory, as by channeling the Founders’. See supra text accompanying notes 14–17; infra notes 163–168 and accompanying text. But it is inevitable that they will often lack concrete guidance on what the relevant abstract theory requires, creating many of the same problems as more idiosyncratic judging.[/footnote] (And yet rights should and will be enforced somehow .[footnote]See infra section IV.A.[/footnote]) Other critics of judicial balancing who agree might support the kinds of popular enforcement sketched below.[footnote]See infra Part IV.[/footnote] Meanwhile, analyzing liberties as unfinished rights bears theoretical fruit. It crisply explains a remarkable range of patterns and pathologies in speech, religion, and Second Amendment law.

Part I reviews the Court’s recent recapitulation of an enduring critique of judicial balancing: that it usurps the people’s role and departs from a balance struck by the framers. This critique impugns doctrines that would have courts weigh costs and benefits case-by-case but also the “definitional balancing” by which courts settle on a rule meant to then apply categorically.[footnote]See Aleinikoff, supra note 30, at 979–81 (critiquing definitional balancing).[/footnote] It reaches strict and intermediate scrutiny, as many have shown[footnote]See infra section I.A.[/footnote] and section I.B confirms against those who think heightened scrutiny less problematic.[footnote]See, e.g., Barclay, Replacing Smith , supra note 8, at 448–61 (advocating “a version of strict scrutiny” that attempts to avoid criticisms of ahistoricism and judicial intervention).[/footnote] And the balancing critique reaches some, though not all, forms of judicial analysis often described as “analogical reasoning.”[footnote]See infra section I.B.2.[/footnote] Yet it’s not clear that general liberties have been enforced without balancing in these senses—not in our early practice or modern doctrine or in other democracies.[footnote]See infra section I.C.[/footnote]

Part II explains why. To offer adaptive protection for conduct as regulatory needs evolve, general liberties have to curb laws that will differ—unforeseeably—in which public interests they advance and how much. That makes it impossible to say in advance when these rights might undercut laws too valuable to give up. So what heightens these rights’ need for balancing in implementation[footnote]See generally Richard H. Fallon, Jr., Implementing the Constitution 4 (2001) (observing that Justices “must craft doctrines and tests that reflect judgments of constitutional meaning but are not perfectly determined by it” to implement the Constitution).[/footnote] (or “construction”[footnote]Originalists distinguish interpretation (discerning meaning) from construction (giving legal effect to that meaning). See Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 10–13 (2018) (tracing the distinction’s origins and influence).[/footnote]) is their special function, not just a general tendency of wooden rules to break down or a need to preserve political legitimacy,[footnote]See Jack M. Balkin, Living Originalism 29–34, 41, 59–64, 282 (2011) (urging reading certain texts this way to ensure that their application reflects each generation’s moral vision, for the sake of political legitimacy). Balkin also touts flexible standards as giving governments leeway to meet evolving needs as “social, economic, and technological [conditions] change[].” Id. at 145. But to show a need for flexibility is not to show a need for balancing, or thus the “unfinishedness” of the legal norm, as this Article shows for certain rights. See infra note 226 (exemplifying this contrast with separation of powers). Moreover, Balkin’s argument about the benefits of flexible standards leaves it open to critics to respond that their harms are greater. Cf . Scalia, The Rule of Law, supra note 1, at 1185 (condemning “standardless balancing” for undermining rule-of-law values). This Article makes a descriptive argument immune to that response: that for some rights, our legal culture has so persistently assigned them a job that creates such a felt need to balance that even those most critical of balancing cannot quash it. See infra Part III.[/footnote] justify popular precedents,[footnote]See Ronald Dworkin, The Moral Reading of the Constitution, N.Y. Rev. Books (Mar. 21, 1996), https://www.nybooks.com/articles/1996/03/21/the-moral-reading-of-the-constitution/ (on file with the Columbia Law Review ) (arguing that reading rights provisions as embodying principles is needed to justify canonical cases).[/footnote] or deal with vagueness or broad scope.[footnote]See supra note 31 and accompanying text.[/footnote] After all, some broad norms can avoid balancing (and some narrow ones can’t).[footnote]See infra section II.A.2. To preview: A right could be broad but not open-ended if the regulations it covered were numerous but concretely specifiable. Then balancing over time would not be inevitable as it is for open-ended rights.[/footnote] And while rights defined in vague terms will have uncertain application at their semantic edges, courts in those cases need only use a cabined sort of analogical reasoning or give political actors the benefit of the doubt.[footnote]See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 151 (1893) (urging that laws be upheld unless they are “unconstitutional beyond a reasonable doubt”).[/footnote] Both tacks presuppose a core in which analogical reasoning and deference are unnecessary. That’s what general liberties lack. Though some of their doctrines may be categorical, there will always be core applications that require balancing.

Open-endedness doesn’t plague many criminal procedure rights[footnote]Not all other rights are balancing-free. For example, some contain normative terms that invite case-by-case balancing. See, e.g., U.S. Const. amend. IV (barring “unreasonable” searches and seizures).[/footnote] or rights against discrete types of regulation like religious establishments as currently applied.[footnote]See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2429 (2022) (referring to a few discrete historic “hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment”); see also Shurtleff v. City of Boston, 142 S. Ct. 1583, 1608–10 (2022) (Gorsuch, J., concurring in the judgment) (discussing six concrete practices as constitutive of religious establishments under the First Amendment).[/footnote] So these rights’ costs are more constant and easier to anticipate; framers can shrink their scope to avoid intolerable costs, reducing the need to balance later. It’s no accident that the balancing-free rights Bruen held up involved the Confrontation and Establishment Clauses.[footnote]See supra note 9.[/footnote] General liberties’ distinctive role demands a different approach.

The inevitability claim is not conceptual.[footnote]Cf. Robert Alexy, A Theory of Constitutional Rights, at xviii, 47–56 (Julian Rivers trans., 2002) (arguing that balancing is required because, as a conceptual matter, rights are “optimization requirements”).[/footnote] It’s not that our notions of “right” or “liberty” imply balancing or that we can’t imagine other implementations. It’s about the incompatibility of two aims. We can’t avoid ex post balancing of a right while also having it shield conduct from unforeseeably varying laws. With rights playing that adaptive role (more than with others), applying them categorically is as predictably untenable as following rules designed by someone who could see only their benefits, not their costs. It’s like following a rule that wasn’t balanced ex post or ex ante. While some have floated ways to avoid freeform balancing and categoricity alike, Part II offers related reasons to expect the failure of the two main proposals. One approach tries to stick to close analogical reasoning. The other would have the law list which regulatory goals will justify burdening these rights, in hopes of avoiding extralegal balancing by courts. Both predictably face a dilemma—between crippling the ability to regulate or destroying these rights’ open-endedness—that pushes implementers back to balancing.[footnote]See infra section II.A.3.[/footnote]

All this has prima facie upshots for interpretation and judging. Since categorically applying open-ended rights is predictably untenable, we should not lightly assume their creators made them categorical. And if judges try to apply them categorically anyway, we should expect their efforts to fail. The same impulse—to avoid untenable outcomes—that suggests designers likely defined these rights to require balancing, would eventually move judges to apply them that way despite their scruples.

Part III confirms these upshots historically. Our legal culture,[footnote]The term “legal culture” signals that even if not every official holds this view, enough do that all attempts to stray from it are overtaken by counterreactions—as when Congress moves to counteract a Supreme Court case rejecting the view or when the Court’s own doctrine soon evolves to do so. See infra section III.B.[/footnote] including originalists, has long treated three texts as enshrining adaptive, open-ended liberties: the U.S. Constitution’s free exercise, free speech, and Second Amendment rights. The Founders read these to capture rights that would guard against indefinitely varied laws and be regulable for sufficiently weighty public interests.[footnote]See infra section III.A.[/footnote] (A word will be added about unenumerated liberties like the abortion right announced in Roe v. Wade .[footnote]See infra note 279.[/footnote]) And these rights’ modern judicial enforcement over eight decades has had just the features predicted by the “unfinished” model.[footnote]See infra section III.B.[/footnote] Attempts to eliminate open-endedness have always sparked counterreactions.[footnote]See infra section III.B.1.a.[/footnote] Categorical rules have repeatedly cratered.[footnote]See infra section III.B.3.a.[/footnote]

For long stretches after the Founding, to be sure, the First and Second Amendments were not vigorously enforced by courts. The transition to courts’ enforcing them as sources of open-ended rights may have been contingent on various historical factors and so initially avoidable. But since courts have done so,[footnote]This Article does not attempt to defend that initial interpretation, so it needn’t take a position on the proper method of constitutional interpretation. It shows only that once we have committed to reading these texts to ground open-ended rights, balancing in their application will be inevitable.[/footnote] Part III shows, our legal culture has resisted efforts to reread these texts as enshrining more discrete rights. The Roberts Court, the keenest of all to stamp out balancing,[footnote] See infra note 415 and accompanying text.[/footnote] has consistently reintroduced it sub silentio under all three rights. Even scholarly proposals for ending balancing would do the same—precisely to preserve these rights’ open-endedness.[footnote]See infra sections III.B.1.b (showing this with scholarly proposals for free exercise), III.B.2.b (showing the same for gun rights), III.B.3.b (showing the same for speech).[/footnote] Thus, Part III offers strong inductive evidence that our legal culture is firmly committed to the role for these rights that then makes balancing inevitable.

Part IV sketches ways out for foes of judicial balancing. We should not cease rigorous enforcement of these rights. But while balancing must therefore happen, not all balancing need be done by judges. Courts can hold each state to the protections offered by a majority of states[footnote]See infra section IV.B.[/footnote] or standards set by Congress in statutes framed to match each liberty’s scope.[footnote]See infra section IV.C.[/footnote] That would keep judges’ balancing revisable by the people’s representatives. While this Article can’t exhaustively assess such proposals, it needn’t. Each is explored elsewhere. Part IV puts those proposals in conversation with this Article’s core analysis about the inevitability of balancing. It casts them as solutions to concerns the anti-balancing Court has raised but cannot resolve for itself.