Scalia takes aim at balancing

Earl Maltz emaltz at crab.rutgers.edu
Mon Mar 8 22:29:26 PST 2004


What is the metric that one uses to compare "police powers'" with 
"constitutional protections?"

At 10:17 PM 3/8/2004 -0500, David wrote:
>The courts went astray in this regard when they largely stopped using the 
>concept of "police power," an inexact concept to be sure, but it makes a 
>heckuva lot more sense to talk about balancing constitutional protections 
>against inherent state police powers than against state "interests"
>
>In a message dated 3/8/2004 9:55:45 PM Eastern Standard Time, 
>emaltz at crab.rutgers.edu writes:
>I would in fact go further, and contend that the entire concept of state
>interests, on which balancing depends,  is a fiction invented by judges and
>law professors.  A government is not a person; it can have rules and
>objectives, but how can it have an interest?
>
>
>
>Professor David E. Bernstein
>George Mason University School of Law
><http://mason.gmu.edu/~dbernste>http://mason.gmu.edu/~dbernste
>blog: 
><http://bernstein.blogspot.com/>http://volokh.com/index.htm?bloggers=DavidB
>***********************************************
>My latest book, You Can't Say That!
>The Growing Threat to Civil Liberties
>from Antidiscrimination Laws, has just
>been published
>***********************************************




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