First, remember, we, in a sense, on the court patrol the boundaries. The Constitutions sets very broad boundaries. Life on the frontier, on those boundaries, is not always pleasant…Is abortion inside or outside the constitution? What about school prayer? What about Bush versus Gore? What about the cases you’ve mentioned? They are always pretty difficult cases and there something to be said on both sides.
This sounds a lot like what I wrote about the social cost frontier in Judging the Constitutionality of Social Cost.
Here is the quote from my paper:
The cases at the margin—along the curve—are often the toughest to decide, and the cases that implicate high amounts of social costs (the upper ends of the parabola). High liberty costs that can harm society nudge the Court to show deference to the interests of society via rational basis scrutiny, even at the expense of denying individual liberty. High safety costs that can harm liberty nudge the Court to show deference to individual liberty interests via strict scrutiny, even at the expense of disregarding the interests of the state to protect society. Cases somewhere in the middle, where the safety costs and liberty costs are closer, fall into intermediate scrutiny.