Balancing Freedoms

In human affairs, very few cases are open and shut. A plausible argument can almost always be made for both sides (or every side, if there are more than two), and reasonable people can honestly disagree about who is right.

This is especially true in matters of law, where it is all but impossible to enunciate hard-and-fast principles that always apply no matter what the circumstances. Almost without fail, whenever such principles are announced, a new set of facts comes along, and applying the principle to those facts produces the “wrong” answer. This paradox makes the law forever incomplete and endlessly fascinating.

What judges do, then, is to balance competing interests, putting each side’s arguments on the scales and deciding which has the greater weight. Frequently, the competing interests involve fundamental principles and values. For example, there is a fundamental tension between freedom and order, both of which our society cherishes.

Every law is an infringement of your freedom to do what you like. Yet we all give up a certain amount of freedom in the interest of an orderly world. Where to strike the balance between freedom and order is a judgment that each of us makes individually based on our personal preferences and beliefs, and that we make collectively through the political process.

Consider three familiar situations that have much in common: screening of air passengers and their baggage, police roadblocks to catch drunken drivers and random urine testing for illegal drugs. In each of these circumstances, large numbers of innocent people are searched in order to catch a few who are guilty. Yet, while hardly anyone objects to airport screening, many people, ourselves included, object to wholesale, mandatory drug testing without individualized cause. Sobriety checkpoints are probably in the middle.

The difference in these cases comes in the balancing. Society’s interest--and each passenger’s interest--in preventing airplane hijackings is large and immediate. The search that is conducted is minor, and each passenger knows beforehand that his hand baggage will be X-rayed and may be searched. In weighing society against the individual, society wins hands down.

In the case of drug testing, many people believe that the social danger is also great, though the immediate threat to others is not so palpable. The invasion of the individual, however, is much greater. A urine sample must be produced and usually it must be produced in the presence of someone else, who certifies that it comes from the person being tested. When these interests are balanced, the result is different than it is for airport screening. To our mind, the individual’s rights outweigh society’s.

Sobriety checkpoints are the troubling middle ground. As in the airport case, drunken drivers present an immediate danger to others, though not as great as an airline passenger with a bomb. And the police “search” is more of an intrusion than X-ray screening but less than imposed by a urine test. A state appellate court in Santa Ana ruled last week that sobriety checkpoints are unconstitutional. Another appellate court in San Francisco had previously held them to be legal. On balance--notice the balancing--we’ll live with the roadblocks, though they make us uncomfortable.

Some judges, including the new chief justice of the United States, invariably balance on the side of society, finding in almost all cases that the broad social interest outweighs individual rights. Other people, including us, put their thumbs on the scale of the individual in weighing competing claims.

The answer cannot be found in the law but in each person’s sense of what is right. Overarching principles are a valuable guide, but each situation must be decided on the specific facts and their relative weights.