Balancing Acts
(You never saw tightrope walkers in suits before!)
For a long time now, the legerdemain of the legislators and the courts has been “balancing:” a supposed measurement of individual rights against public policy. Legislators have largely ignored individual rights as they write and pass laws. They leave it up to the courts to declare whether the “harm” to the relevant rights is greater or less than the “benefit” to “the public” achieved by the law.
There’s a lot of sleight-of-hand in that “balancing” business. Let’s tease it apart a little. Maybe we can see where and how the magician palms a card.
First, there’s the legislative aspect to it. Legislators are bound by the Constitution of the United States. They must so swear before being installed in their seats. Yet when questioned about the Constitutional basis for their legal emissions, they nearly always duck the question. Sometimes they denounce the asker for his lese majeste. So many a bill passes both houses of Congress and gets to the president’s desk without ever being measured against the Constitution’s grants of powers and declarations of rights.
Now comes the judicial test. Federal judges are also bound by the Constitution; they too must so swear before they’re allowed to mount the bench. But once again, the “supreme law of the land” isn’t much of a consideration for them. Judges have actually declared in open court that specific provisions of the Constitution don’t apply in their jurisdictions. They rule by personal whim as often as not.
But now we get to the semantics of the matter:
What is a “right?”
Is it possible to “harm” a “right” non-fatally?
What do legislators and jurists mean by “benefit” to “the public?”
With regard to question #3, what if the law under discussion doesn’t produce said “benefit?”
I’ve said at other times that either the Constitution means exactly what it says, or it means nothing. In the former case, its terms are absolutely binding: any federal official who violates them, whether by asserting powers not granted or by violating a Constitutional constraint, is in a state of insurrection. In the latter case, the document is merely an interesting bit of history; legislators and judges can do whatever they can get away with.
Contemporary practice follows the latter course. That’s the essence of the Balancing Act. “Oh, we’re only going to infringe on your rights a tiny bit! Just wait until the benefits from this new law kick in. You’ll see it was as good a bargain as we said!”
But a right is an absolute constraint upon the State. It cannot be harmed “just a little.” To violate a right deliberately, no matter what the rationale, destroys it utterly. Once it’s been punctured, it no longer exists. The failure of the imagined “benefits” to arrive is only a dash of irony added to this rancid sauce.
As for the benefits to the public, it’s even easier to dissect that corpse:
Whom do we mean by “the public?”
What about those persons who are demonstrably harmed by this law?
How do we measure the “benefits” against the “harms?”
Have a hypothetical case: Some persons are making and selling item X in our nation; others are purchasing it. Congress seeks to forbid it. The legislators argue that the harm from forbidding that item is eclipsed by the benefit it would bring. That benefit is stated as an improvement in “public order” or “decency.” Perhaps it also envisions an increase in the sale of substitutes for X by American makers thereof. So Congress passes a law that forbids the making, selling, and possession of X in these United States.
In the above case, X is legal to produce, sell, and own in the U.S. before the law is passed and signed. Yet the kind of law I’ve proposed above has been passed, signed, and enforced at various points in American history. It would criminalize anyone who’s in the business of making or selling X. Those persons would lose their livelihoods. So clearly, whatever the imagined “benefit” to “the public” the law envisions, it would not include them. The law implicitly excludes them from “the public.”
Where does the Constitution grant Congress the power to do such a thing? The Commerce Clause? What limiting principle would apply here? Is there one?
It’s worth more thought than legislators, presidents, and judges usually give it.
Just now, there’s a foofaurauw in progress over the Administration’s policy of destroying the vessels of drug traffickers in the Caribbean. The drugs at issue are illegal under current federal law. The Administration has termed the would-be importers terrorists, such that eliminating them in international waters is consistent with international practice:
The traffickers are deemed “enemies of all Mankind;”
National laws and constitutions do not apply to international waters;
Targeting and destroying such enemies is consistent with historical practice.
The same premises and reasoning have defended the destruction of pirates and their craft throughout history. Moreover, “the public” generally accepts all of that. The outlawing of the drugs involved has popular support. The traffickers are deemed to possess evil intentions. No First World nation opposes the elimination of such traffic. The use of military force to sink those vessels follows logically.
Yet the actual practice of sinking those vessels has elicited considerable opposition. Somewhere in the process, logic has blown a fuse. Nor would the results be different were X any other commodity currently illegal to sell in the United States.
Retired Los Angeles detective “Jack Dunphy” (a pseudonym) has this to say”
There can be no denying the harm done by illegal drugs. The CDC reports there were 76,516 drug overdose deaths in the U.S. during the 12 months ending in April 2025. And the tens of thousands of deaths are only the most obvious ramification of a public scourge that has incapacitated or immiserated millions of others from sea to shining sea. There is moral and legal culpability at every link in the supply chain that produces these drugs and transports them to consumers.
But what is to be done about it?
In his 1989 bestseller Clear and Present Danger, the late Tom Clancy wrote of an American military campaign being waged clandestinely against a Colombian drug cartel. I was a drug warrior at the time, and just as I have at recent images of drug boats and their crews being sent to the bottom of the ocean, I cheered at Clancy’s fictional depictions of cocaine-laden airplanes being shot out of the sky and of a gathering of cartel chieftains being vaporized in an airstrike.
But while Clancy’s drug war was conducted in secret, the Trump administration is proudly broadcasting its videos of the attacks and labeling anyone who questions this escalation in the drug war as sympathetic to criminals.
I’ve been writing for various conservative outlets for 25 years, and no one who is the least bit familiar with my oeuvre would call me soft on crime or sympathetic to criminals, but one must recognize the moral peril in these airstrikes.
Dunphy has been adamant about the matter throughout his op-ed writing years. Yet even he, a longtime supporter of the War on Drugs, is troubled. Has he sensed a flaw in the logic? Unclear, but there’s time.
Some of the most ardent supporters of the War on Drugs are also Second Amendment absolutists. If X were some gun that’s illegal under current federal law – many guns formerly imported to the U.S. are illegal imports now – would their sentiments change? What would their rationale be?
Food for thought.
I’m an absolutist of a sort myself. I hold that there are absolute rights and absolute responsibilities, that those things are written into the laws of Nature, and that attempts to contravene them invariably bring death and destruction, no matter what the rationale. It doesn’t matter what the context is, or how others feel about such things.
The right to bodily autonomy isn’t recognized at the moment, regardless of the Fourth Amendment. The right to peaceable commerce has been nullified as well. The destruction of those rights has been justified by supposed “benefits to the public.” Infringements on other rights explicitly protected by the Constitution are in progress as we speak.
I decline to speculate on how much longer our federal tightrope walkers can maintain their supposed balance. But when they fall, the crash will be massive. Of that, I have no doubt.