Balancing of interests in the law is under attack

 Context

Since the founding of the Republic, American laws have generally taken into account cost-benefit for affected people and interests when a law has significant impacts. Balancing of interests has been ubiquitous in constitutional law since the early 20th century. Even when absolutists claim the Constitution is silent about balancing, e.g., clauses asserting a right "shall not be infringed" or congress "shall make no law", their decisions are usually crafted in ways that actually do some balancing, even when that is denied.

Although absolutism and hostility toward balancing of interests is a minority legal view, it is arguably dogma among MAGA legal practitioners, generally including all six Republicans on the US Supreme Court bench. That makes absolutism a powerful influence on modern law despite it being a minority position. The majority view is that constitutional rights and laws must be interpreted in a manner that is sensitive to their purpose and to the necessities of society and the law.

Some legal scholars have called out the hypocrisy of selective anti-balancing originalism in the law. That brand of originalism almost always results in partisan outcomes, not principled outcomes. It uses the law as means to partisan ends. One scholar asserted that originalism is a form of a living constitution that is simply not honest about its values, aims, and commitments. In the hands of MAGA US Supreme Court judges, originalism functions as an after-the-fact rationalization, and an anti-democracy weapon, for partisan decisions made on partisan grounds.

In short, anti-balancing legal scholars and judges are, or at least look like they are, asserting anti-balancing absolutism as a smoke screen for MAGA authoritarianism. The current US Supreme Court is increasingly extending absolutist levels of protection to current favored rights, e.g., speech, religious exercise, bearing arms, and holding property, while zeroing out protection for currently" disfavored rights, e.g., abortion, voting rights and consumer rights and protections.

The Founders' Approach

The Founders explicitly embraced balancing. James Madison cautioned against "absolute restrictions in cases that are doubtful, or where emergencies may overrule them". He understood that rigid rules will not be well-respected when they significantly oppose the public interest. Jefferson similarly acknowledged that declarations protecting free press will not take away the liability of the printers for false facts printed" and that protecting religious freedom "does not give impunity to criminal acts, dictated by religious error. The historical record makes clear that the Founders assumed rights had limits.

MAGA Hypocrisy

Today's conservative Supreme Court majority claims to reject interest balancing in favor of "text, history, and tradition." However, historian Eric Foner has observed that originalism is intellectually indefensible because there is no important document in the world that has only one original meaning or one original intention.

The hypocrisy is glaring. The same justices who eliminated interest balancing for gun safety laws (the 2022 Bruen decision) employ balancing when it favors preferred outcomes. Preferred outcomes include expanding executive power (under the authoritarian unitary executive theory), religious exemptions (allowing discrimination against target groups), and weakening protections for voting rights. Legal scholars document that when convenient, conservative originalists announce decisions and doctrines that have no basis in the Constitution's original meaning.

The Authoritarian Threat

The net effect of MAGA's selective anti-balancing dogma is authoritarian. Recent scholarship argues that the widespread adoption of originalism has diminished the ability of the United States to stare down anti-democratic threats because it has eroded two key bulwarks against authoritarianism, namely individual rights and an independent judiciary.

Since January 2025, the Supreme Court has sided with the Trump administration in 20 of 23 shadow-docket rulings. Lower-court judges who ruled against the administration have been consistently overturned by a Supreme Court majority that claims fidelity to constitutional text while functionally expanding executive power beyond anything the Founders contemplated. There's little to no balancing in that.

Public Ignorance

Most Americans remain unaware that abstract-sounding debates over "originalism" versus "balancing" determine whether their rights have practical meaning. When courts refuse to balance, they either make rights absolute by blocking all regulation, or they defer to government or special interest power. Neither outcome reflects the Founders' nuanced understanding that liberty requires both protection and prudent limits. Both are anti-democracy

The stakes are democracy itself. Empowered originalism creates a legal environment where authoritarianism is viable and democracy weakened. When a an anti-democratic constitutional dogma becomes a weapon wielded for partisan ends, the rule of law and democracy have eroded. Understanding this battle is an important first step toward defending democracy and self-governance.

Supporting democracy: Citizen's assemblies

 

Context

Decades of polarizing and often anti-democratic rhetoric have contributed to declining trust in democratic institutions and processes, especially among Republicans. The radical right MAGA wealth and power movement that is dominated by elites envisions some form of corrupt authoritarianism to replace democracy and the rule of law as they exist now. Government infrastructure to enable that is being built now by MAGA elites in power in the federal executive branch, the courts and congress. The goal is to have in place enduring authoritarian government and law in place once Trump is gone. To attain power, decades of radicalizing demagoguery was necessary for the rise of MAGA to its current position of federal government power.

Upgrading democracy

A Scientific American article, Citizens’ Assemblies Are Upgrading Democracy: Fair Algorithms Are Part of the Program, points to a way that can augment trust in democracy. The article describes a case of a group of 99 Irish citizens who were chosen to be representative of all of the Irish people in terms of age, gender, and where they lived. This citizen's assembly heard from experts, learned about the topic, extensively discussed and debated among themselves, and then made recommendations about legalizing abortion in Ireland. Its recommendation to allow abortions in all circumstances, subject to limits on the length of pregnancy, was supported by a significant majority of the 99. That paved the way to a national referendum that resulted on voters adopting the assembly's recommendations.

The episode was remarkable. Irish politicians would not touch the subject, fearing they would get voted out of office. Since the 99 citizens were not worried about getting voted out of office, they dealt with the issue rationally and reflected that most Irish people, 66%, wanted abortion legalized. The assembly was trusted because the people on it were chosen to represent or be like the Irish people generally.

Citizens’ assemblies bring together ordinary people, selected by lot, to learn about an issue, deliberate, and recommend policies. They often work complex or contentious topics such as climate policy or major reforms. Because participants are not professional politicians, they are insulated from reelection and other pressures such as such as party discipline, campaign incentives, donor blowback, special interests lobbyists, etc. They are free to simply focus on relevant evidence, learning the complexities and deliberation among themselves.

What makes citizen assemblies at least somewhat trusted by the public is selection to make them representative of the rest of the country, state or locality. Some of the people in the assemblies are like many other people in multiple ways. That tends to foster trust to some extent.

Why descriptive representation matters: The article points out that descriptive representation for assemblies should roughly match the population in gender, age, geography, and other characteristics. That boosts public perception that decisions are made by “people like us”. This contrasts with elected legislatures that remain skewed, for example, underrepresentation of women, which undermines perceived legitimacy compared to well-balanced assemblies.

Naive random sampling rarely yields a group that closely resembles the broader population, especially when many demographic and attitudinal criteria are tracked, so practitioners face a trade-off between randomness and representativeness. The piece frames this as an optimization problem: choosing a subset of volunteers that best matches target quotas across multiple dimensions while retaining the core idea of random selection.

The article discusses an algorithm (developed with collaborators and now used by organizations like the Sortition Foundation) that first defines target distributions for demographic categories, then uses computational search to randomly select a panel that satisfies these constraints as closely as possible. This approach allows the “dice” to be loaded in a transparent, rule‑based way to correct for practical biases—such as some groups being less likely to respond to invitations—without letting organizers handpick participants.

By combining sortition with fairness-focused algorithms, citizens’ assemblies can better uncover the will of the people and help build consensus on divisive issues. Assemblies offer a complement to electoral democracy, not a replacement. The article suggests that as citizen assemblies and how they are created become better known, and the underlying algorithms remain open and auditable, they can help counter distrust in institutions and democracy itself. All of this can also show how carefully designed procedures can make democratic representation both more inclusive and more representative, e.g., by eliminating anti-democratic influence by special interests and political parties.

Points for consideration

Would you at least consider recommendations from a citizen assembly if it's makeup and means of selecting people for it are transparent and reasonably representative of "people like you"?

Does this article at least somewhat change the way you view the working of American democracy, which is seriously undermined by corrosive, and often irrational, special interest money, propaganda and influence?

The epitome of moral rot

Context

Cognitive biology: Although some people are uncomfortable with linking subjective, personal morality to politics, social science makes clear that moral reasoning cannot be completely avoided. Humans are inherently moral thinkers and actors. Humans perceive the world and think about it through a human lens. For better or worse, our perceptions and reasoning are usually heavily influenced by personal moral values. That influence tends to arise mostly or completely unconsciously before conscious reasoning is brought to bear. To a large extent, we are basically unaware of much of our moral reasoning and attendant behavior.

News reporting: Various sources report about Trump's pardon of the drug kingpin and Honduran president Juan Orlando Hernández. Hernández was involved in the trafficking of hundreds of tons of illegal drugs into the US. US Senator Tim Kaine asserted that Hernández was aggressive and arrogant in his attitude, allegedly commenting that Hernández said he wanted to ‘shove the drugs right up the noses of the gringos by flooding the United States with cocaine’.

When asked why he pardoned Hernández, Trump gave these reasons:

“I was asked by Honduras, many of the people of Honduras. The people of Honduras really thought he was set up, and it was a terrible thing. They basically said he was a drug dealer because he was the president of the country. And they said it was a Biden administration set-up. And I looked at the facts and I agreed with them.” 

Trump provided no evidence of a setup. In his US trial, Hernández was convicted by a jury who carefully considered the evidence of criminal culpability. Hernández told the jury he was innocent and was set up. But based on available reporting, Hernández provided no verifiable evidence to the court that he was framed or set up. Despite his unsupported claims of innocence, the jury convicted him and then Trump pardoned him. The jury vindicated the rule of law in a fair trial based on evidence. But Trump reversed that and in doing so he denigrated the law and disrespected the jury on the basis of no tangible evidence.

Moral rot

As explained here before, when there is sufficient evidence of dishonesty and bad faith dealings by players and interests doing politics, it is rational for people who support democracy and the rule of law to distrust those players and interests.

Years ago, Trump reached a point where significant numbers of reasonable, fair-minded people could conclude that Trump cannot be trusted. He is not just an aggressive chronic liar[1], which is beyond rational dispute. His authoritarian behavior over the years made clear that his character is grounded in moral rot. Whatever his morality is, it does not include respect for either facts and honest rhetoric, or democracy and the rule of law.

Pro-democracy, pro-rule of law people acting and thinking in good will can rationally argue that Donald Trump is a profoundly morally rotted person. His moral rot manifests in various ways, e.g., inciting insurrection on 1/6/21, fornication with Stormy Daniels (and lying about it), running a fraudulent charity, defaming people, and being convicted of business fraud felonies.

Points to consider

Morality is almost always assessed from different points of view. It depends on who is doing the assessing. From his own point of view, is it more likely that Trump sees himself as a mostly honest player who is at least as moral and good as other politicians? Or does he understand who and what he really is, e.g., mendacious, corrupt, authoritarian, etc., but that's acceptable in his moral world?

Is Trump's pardon of Hernandez an example of moral rot regardless of what point of view it is assessed?

Footnote:

1. PolitiFact's assessment of Trump's lies was blunt: "American fact-checkers have never encountered a politician who shares Trump's disregard for factual accuracy". PolitiFact's assessment noted that Trump's fast-and-loose style with facts persisted from his 2011 promotion of crackpot birther conspiracy theories through his presidency and into his political activities as of Feb. 2024 when PolitiFact published its 1000th fact check of Trump.

Evidence of moral rot

Fact checking technology update

A paper submitted to Arxiv, FlashCheck: Exploration of Efficient Evidence Retrieval for Fast Fact-Checking, considers the obvious idea of using AI (artificial intelligence) to try to counter some of the power of demagoguery and its effectiveness in deceiving and manipulating people. 

The FlashCheck concept addresses a critical bottleneck in automated fact-checking: the high computational cost and time lag in retrieving evidence from massive knowledge bases like Wikipedia. Current systems rely on "dense retrieval" (vector search), which is accurate but resource-heavy, making real-time verification difficult. 

To reduce the problem, the researchers propose a two-pronged optimization strategy, Corpus Pruning, which is indexing only factual statements instead of full text, and Index Compression using joint product quantization (JPQ)[1], a data compression technique. To move closer to real time fact checking, the researchers reduced Wikipedia size by ~93% from 9.70 GB to ~673 MB using JPQ. That resulted in​ a shorter latency time with up to a 10-fold speedup on CPUs and 20-fold speedup on GPUs compared to reference standards. The researchers used their AI model to fact-check the 2024 US Presidential Debate in real-time. The result was a 3.4-fold fact checking speed increase over existing fact check methods. Despite aggressive data compression, negligible performance loss was observed.

As time passes, continued fast fact checking will very likely further improve. A big question is whether it will make much difference. At present, a significant minority of the American public has been conditioned to treat MAGA's blatant lies and flawed reasoning as acceptable and reasonable. As long as that remains the case, it is unclear what effects might flow from improved fact checking.

Footnote for wonks:

1. JPQ employs (1) Joint Optimization to align the query encoder and the compressed index codewords using a shared ranking-oriented loss function, ensuring they work perfectly together, and (2) Hard Negative Sampling during training, where the program retrieves "hard negatives" (incorrect but similar answers) directly from the quantized index, teaching the model to distinguish subtle differences even in compressed data. The result was a massive compression effect that reduced the data size by ~93%, but with faster retrieval speeds without the same level of accuracy drop usually associated with compressing data.