Kant's Categorical Imperative: An Unspoken Factor in Constitutional Rights Balancing

Abstract

Over the years, constitutional lawyers have attempted to make analysis of rights claims more determinate by developing tests that would produce easily predictable, consistent outcomes. But in recent years, these tests have been breaking down and blurring, leading some to object vigorously to what appears to be a new, indeterminate era in constitutional rights jurisprudence. This article will contend that the breakdown in the easy use of categories, and the increased incidence of balancing in these cases, is, at least in part, a consequence of courts' recognition of countervailing legitimate values to the traditional, essentially utilitarian concerns of earlier constitutional cases. Specifically, this article will attempt to demonstrate the presence, at least implicitly, in constitutional balancing of the Kantian principle that a person may not be treated solely as a means to the achievement of some end independent of that person's own welfare. The recognition of, and respect for, this principle will by no means banish utilitarian concerns from constitutional analysis, but it will help to shed light on the factors that courts do, and must, consider when engaging in the inevitable, if messy, process of constitutional balancing.