In all constitutional adjudications that involve competing liberty and safety costs, there is always the proverbial “forgotten man.” We know what is seen, but are frequently blinded to what is unseen.
Perhaps this is an argument against judicial review–how are insulated judges equipped to know about the forgotten man? Arent’ ex parte nonparties not properly before the court?
Or not? Are the courts essential in order to reinforce the representation of the forgotten man, these discrete and insular minorities, for whom the majoritarian legislature has chosen to forget about.
Now if the court can identify the forgotten man in some cases (think fn 4, which mentioned about voting and the like), why not about other cases (rights not in first 10 amendments, for example)
The courts, detached from the political process, are perhaps uniquely situated to see the forgotten man. Thus, measuring the liberty and safety costs may indeed be within the provence of the judiciary.