The Inadequacy of Methodology
In addition to the assaults on normative premises, liberal legal theorists must confront the problems of their methodological preferences. To mediate value conflicts, liberal theory prefers the method of 'balancing,' the sensitive sifting and weighing of the circumstances, typically on an ad hoc basis.150 The process of balancing normative values predominates in current constitutional doctrine. Even a perfunctory examination of the Supreme Court's decisions in the areas of fourteenth amendment state action and privacy and of first amendment free speech makes this predominance all too apparent.151
The liberal preference for balancing can be explained, in part, by pragmatism. A realistic legal system that refuses to hold any principle absolute and transcendent will depend on the parsing of and the contextualization of principle.152 Furthermore, the viability of the constitutional regime over time may depend on flexible and efficient accommodation of governmental exercises of power. This defense of liberal legal balancing is allied with one pluralist view of American politics, where results are understood as the amalgamation or compromise of preferences expressed by competing interest groups.153
Balancing will be undertaken, however, at a certain expense to the liberal program. The definition and weighing of competing values by reference to the collective conscience, or to a morality tied to intrinsic human values, pits individual rights against the force of societal interests.154 The likely results of balancing should be obvious: restraints on exercises of governmental power are largely understood only after the fact; and, a right against society is only as strong as the collective is willing to tolerate.155 At a minimum, liberals may need to incorporate a greater sense of the necessity for judgment based on a centrality of values.156
