Balancing: The metaphoric term generally used in the law to describe an exceedingly important conceptual operation. In almost all conflicts, especially those that make their way into a legal system, there is something to be said in favor of two or more outcomes. Whatever result is chosen, someone will be advantaged and someone will be disadvantaged; some policy will be promoted at the expense of some other. Hence it is often said that a "balancing operation" must be undertaken, with the "correct" decision seen as the one yielding the greatest net benefit. That some such process must be a part of any practical legal system is undeniable. But that should not blind us to the extreme danger of too facile a use of "balancing" in a system of justice.' This essay is an attempt to explore and evaluate a form of constitutional reasoning-balancing-that has become widespread, if not domi-" Professor of Law, University of Michigan Law School. B.A. 1974, Swarthmore College; J.D. 1977, Yale Law School. This Article is dedicated to the memory of Robert M. Cover. Bob was my teacher, my advisor, my mentor, my friend. No one I have ever known has possessed such a rare combination of brilliance, compassion, humility, and moral conviction. The law has lost a tzaddik. Many colleagues and friends slogged through drafts of this Article or tolerated conversations about it. Sincere thanks to all.
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