In law and politics, some people are trimmers. They attend carefully to competing positions and attempt to steer between the poles. Trimming might be defended as a heuristic for what is right, as a means of reducing political conflict over especially controversial questions, or as a method of ensuring that people who hold competing positions are not humiliated, excluded, or hurt. There are two kinds of trimmers: compromisers, who follow a kind of “trimming heuristic” and thus conclude that the middle course is best; and preservers, who attempt to preserve what is most essential to competing reasonable positions, which they are willing to scrutinize and evaluate. It is true that in some cases, trimming leads to bad results in both politics and law, including bad interpretations of the Constitution. It is also true that trimmers face difficult questions about how to ascertain the relevant extremes and that trimmers can be manipulated by those who are in a position to characterize or to shift those extremes. Nonetheless, trimming is an honorable approach to some difficult questions in both law and politics, and in some domains, it is more attractive than the alternatives. In constitutional law, there are illuminating conflicts among those who believe in trimming, minimalism, rights fundamentalism, and democratic primacy.
More from this Issue
Vol. 122 No. 4 Our administrative law contains, built right into its structure, a series of legal “black holes” and “grey holes” – domains in which statutes, judicial decisions and institutional practice either explicitly or implicitly exempt the executive from legal constraints. Legal black holes and grey holes are best understood by drawing upon the thought of Carl Schmitt, in particular his account of the relationship between legality and emergencies. In this sense, American administrative law is Schmittian. Moreover, it is inevitably so. Extending legality to eliminate these black and grey holes is impracticable; any aspiration to eliminate the Schmittian elements of our administrative law is utopian.
Vol. 122 No. 4 Table of Contents Introduction Compensating Victims of Wrongful Detention, Torture, and Abuse in the U.S. War on Terror Mandatory Arbitration Clauses: Proposals for Reform of Cons of Defendant Arbitration Access to Courts and Videoconferencing in Immigration Court Proceedings The Political Question Doctrine, Executive Deference, and Foreign Relations Aesthetic Injuries, Animal Rights, and Anthropomorphism
Vol. 122 No. 4