How does one conceive of such values in a way to make it possible to weigh them one against another and come out with a normative conclusion? I don’t think we poll the dead, but rather the living, about whose understanding of and support for such values the legislature is far better able to make judgments than are courts.

Of course judges often weigh values in particular cases, e.g. to come to conclusions as to whether and to what extent conduct should be controlled by a court order or the nature of the punishment appropriate to a particular offense (within limits set by the legislature). But when the task is to make the rule by which agents of government or private individuals should be limited in the pursuits of their chosen ends, I insist that politicians subject to periodic elections are better able than judges to make such judgments.

When may (should) the courts step in and set their understanding of constitutional limits against the action of the Legislature? To start with, the result should be relatively easy to explain, either because the constitutional limits are clear or because a result other than the one reached by the court “shocks the conscience”. Yes, that’s an awfully squishy concept. Whose conscience? What degree of shock? It makes the selection of judges a political problem of the highest order.