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55 Alb. L. Rev. 605 (1991-1992)
Governmental Interets and Unconstitutional Conditions Law: A Case Study in Categorization and Balancing

handle is hein.journals/albany55 and id is 629 raw text is: GOVERNMENTAL INTERESTS AND UNCONSTITUTIONAL CONDITIONS LAW: A CASE STUDY IN CATEGORIZATION AND BALANCINGt Kathleen M. Sullivan* My topic is categorization and balancing. What I would like to do first is lay out a general description of the roles of categorization and balancing in recent constitutional law, and take issue with some of the characterizations we have heard earlier in the conference about this being an age of balancing. Second, I want to talk about some of the characteristic moves between these modes of constitutional rea- soning, from categorization to balancing and from balancing to cate- gorization, in some recent cases. Then I want to get to the heart of the matter, which is: does it make any difference? And, what theories might we have to explain the relationship between the modes of rea- soning? Finally, how does it play out in unconstitutional conditions cases? Let me start by laying out the general descriptive claim. I take a little bit of issue with Professor Gottlieb and with people like Profes- sor Aleinikoff in his article, Constitutional Law in the Age of Balanc- ing.1 We have heard a great deal of discussion of modern constitu- tional law as the era of balancing, a time when all of the modes of reasoning are grocer-like, rather than taxonomist-like. They are modes of reasoning that are about weighing things against each other, not about classifying cases into different predetermined categories. I think that is partially right, but greatly overstated. I think that the formalism/functionalism distinction is recapitu- lated in an endless dialectic between categorization and balancing within the functionalist mode. To put that in English, the Court stated a set of tests that sound like balancing: e.g., if we use strict t © 1992 by Kathleen M. Sullivan. These remarks were based on a paper prepared for the Conference on Compelling Government Interests at Albany Law School, September 26-28, 1991. The full paper, on which these remarks were based, is scheduled to appear in a volume tentatively entitled Compelling Government Interests: The Mystery of Constitutional Analysis (Stephen E. Gottlieb ed.) to be published by the University of Michigan Press. * Professor of Law, Harvard Law School. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987).