The Seen and Unseen Social Costs

September 1st, 2011

It is easy to see and count the number of indictments dismissed and criminals who go free due to violations of miranda or the fourth amendment, or prisoners being released because of overcrowded prisons in California, or detainees in¬†Guantanamo¬†being released due to habeas corpus, but it is much harder to see coercive police interrogations where suspects are unreasonable searched and questioned in violation of their rights. It is really easy to see fred phelps protesting at a funeral or a crush film or a minor playing a violent video game, but it is harder to see people modifying their expressive activities out of fear of running afoul of the law. in the words of Bastiat, there is the seen, and the unseen. The seen costs–usually liberty costs–are easy to visualize because they are right in front of our eyes. The unseen costs–usually safety costs–are usually not visible to the public, and much harder to discern. The court’s ability, and indeed willingness, to peel back the layers, and consider the unseen safety costs is the essence of strict scrutiny. The unwillingness, indeed willful blindness of the unsee safety costs, is the essence of rational basis scrutiny. Reading an opinion, and looking at how a judge treats the seen, and unseen costs, provides a glimpse into how probing, or how superficial, the judicial scrutiny actually this.