Legal Commentary

Trimmers

By Jack M. Balkin

Cass Sunstein

Some people are trimmers. They seek to steer between the poles. In
the context of sexual and reproductive rights, trimming has
considerable appeal.

Trimmers are not minimalists; they do not seek to leave issues
unresolved. Instead their goal is to ensure, to the extent possible,
that no side feels excluded, humiliated, or hurt. A decision to
preserve Roe v. Wade, but to permit parental notice requirements,
would be a form of trimming. So too with a decision to require states
to provide all legal benefits to same-sex couples, but to allow
states to reserve the term "marriage" to heterosexual couples.

Trimmers come in two different varieties: compromisers and
preservers. Compromisers believe that when judges lack information,
they do well to split the difference. If, for example, some people
want to understand the Constitution to allow women to choose abortion
whenever they like, and other people want to understand the
Constitution to contain no abortion right at all, compromisers will
seek some approach that looks like the middle. (I put to one side the
many difficulties in deciding what counts as the middle.)

At first glance, compromise, as such, seems to have little appeal in
the domain of constitutional law. But on certain assumptions,
compromise can claim epistemic credentials, by reference to the same
kinds of arguments that underlie appeals to "the wisdom of crowds."
The Condorcet Jury Theorem provides some analytical help on this
count.

By contrast, preservers attempt to preserve what is deepest, most
essential, and most deeply felt on the part of all sides. Sometimes
their task is impossible. But in some cases, preservative trimmers
think that they can accept the deepest commitments of the apparent
adversaries. Some restrictions on reproductive freedom -- again
parental notice requirements are an example -- can be upheld in a way
that counts as preservative. Some defenses of bans on partial birth
abortion and refusals to fund abortion can also be understood in
preservative terms.

Trimming raises a host of questions and doubts, and no one can claim
that it provides a full or adequate approach to constitutional law.
But it does count as an alternative to rights fundamentalism (as
shown by Roe's strongest defenders), minimalism (as occasionally
shown, in this domain, by Justice O'Connor), and democratic primacy
(as shown by Roe's strongest critics). Whenever the nation is badly
divided along moral lines, and arguments of good faith and some force
are made by contending sides, trimming has a strong claim on our
attention.

Full post as published by Balkinization on September 15, 2008 (boomark / email).