it [i.e., the Supreme Court] Attention must be paid to the constitution, whether it has a big or small C, written or unwritten (or both), because it is the constitution of a society and represents the basic distribution of power within that society. It is in its constitution that a society accepts the plain fact that every decision must ultimately be made based on someone’s stewardship, prudence, and particular judgment, but in reality few decisions can be made by everyone at the same time to judge. It is in the Constitution that society recognizes that everyone is capable in principle of accepting the Olympian view, but that in fact most people will disagree in accepting this view. In short, a constitution is a necessary and prudent arrangement for the allocation of powers to adopt a prudent attitude. If courts ignore the limits of their own scope of prudential judgment, then courts, like everyone else, will fail to respect constitutional prudence.
Charles Freed, Two Concepts of Interest: Some Thoughts on the Supreme Court’s Balancing Test, 76 Huff. L. Rev. 755, 772 (1963).
