The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State
Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.
The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be communicated. In cases contesting a law’s authority, the Court must determine the governmental interest in a law’s enforcement.
The presumption the Court applied in numerous cases in the years following World War II is that the exercise of state police power is valid. The most controversial area of police powers regulation is the enactment of laws to promote good public morals. Legal perfectionism is the notion that the law’s purpose is to encourage individuals to be better citizens. A test could be derived from this perfectionist approach to evaluate moral laws according to a citizen’s understanding of the moral implications of the law. Evaluating moral claims of the state with this rule may improve predictability. By clarifying the moral obligations lawmakers have to citizens, the authority for judges to act independently of the legislature becomes more apparent. The clarification of this rule would also enhance the legitimacy of a judicially recognized change in norms unacknowledged by other lawmakers.
Steve Sheppard. "The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State" Hastings L.J. 45 (1994): 969.
Available at: http://works.bepress.com/steve_sheppard/6