Source: Richard A. Posner, How Judges Think (2008). p 332 Middle.
The problem is not that he is asking the court to weigh impondera. bles. For while "weighing imponderables" sounds like an oxymoron ("imponderable" is from the Latin ponderare, meaning "to weigh"), it isn't quite. Often a judge can know, even without quantification, that one interest at stake in a case is weightier than another. In a negligence case neither the burden of precautions nor the probability and magni- tude of the accident that will occur if the precautions are not taken may be quantified or even quantifiable, yet it may be apparent that there isa grave risk of a serious accident that could easily be averted (negligence), or that the cost of the precautions would be disproportionate to the slight risk of a minor accident (no negligence). That is the "tolerable windows" approach that I advocated in chapter 9. But the key terms in Breyers test, such as "impact upon the publicS confidence in, and ability to communicate through, the electoral process" and the "importance" of a challenged law's "electoral and speech-related benefits," are so nebu- Ious that they cannot be weighed against each other at all. High-level ab- stractions such as "democracy" and "active liberty" can be arrayed with equal plausibility on either side of constitutional questions. They are makeweights. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing de- cision (as reapportionment decisions are widely thought to be) it can be defended as an application of the "higher democracy" embodied in the Constitution. So originalists are democrats along with loose construc- uonjsts. Likewise federalists. who want to honor the democratic choices made at the state and local levels, and nationalists who want to honor the democratic chojces made at the federal level.
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