According to Charles Fried in his article “Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test,” the Supreme Court must look to the Constitution, whether written or unwritten, with a large or small C. The Constitution represents the fundamental allocation of competences within a society. It is within the constitution that a society grapples with the reality that decisions must ultimately be made by someone’s judgment, and very few decisions can be left to the judgment of everyone at once. A society acknowledges in its constitution that while everyone is theoretically capable of taking an Olympian view, in reality, most will disagree when they do so. The Constitution serves as a necessary, prudent arrangement for allocating competences to allow for a prudent view. Any entity, including a court, will fail to uphold the prudence of the Constitution if it disregards the limitations on its own ability to make prudent judgments.
Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court’s Balancing Test, 76 Harv. L. Rev. 755, 772 (1963).
