It [i.e., the Supreme Court] should look to the Structure, be it with a big or small C, written or unwritten (or each), for it’s the structure of a society which represents the elemental allocation of competences inside that society. It’s in its structure {that a} society involves phrases with the homely fact that each determination should lastly be taken on the managerial, prudential, particularistic judgment of any person, and but only a few choices certainly could also be left to the judgment of all people directly. It’s within the structure {that a} society acknowledges that everybody is in precept able to the Olympian view, and but in reality most individuals will differ once they take it. The Structure, in brief, is a vital, prudential association for the allocation of competences to take a prudential view. And a court docket, a minimum of anybody else, will fail to respect the prudence of the Structure, if it ignores the constraints by itself scope for making prudential judgments.
Charles Fried, Two Ideas of Pursuits: Some Reflections on the Supreme Court docket’s Balancing Check, 76 Harv. L. Rev. 755, 772 (1963).
