Report No. 95
V. The Element of Choice
3.17. The aspect of choice.-
The burden of the constitutional judge is thus a heavy one. One important circumstance accounting for this heavy burden of the judge is that constitutional cases usually involve a choice. This itself is primarily due to two reasons. In the first place, some provisions of the Constitution are (by sheer necessity) stated in wide or ambiguous terms. To decide what they mean in the circumstances of the particular cases involves a choice between competing values. Secondly, some of the critical phrases occurring in the Constitution cannot be intelligently understood or given shape without a substantial injection of content from some source beyond the language and the discoverable intention of those who wrote it. In constitutional adjudication, the choice is not between parties as such, but between goals. As has been observed:
"There is no objectivity in constitutional law, because there are no absolutes". Every constitutional question involves a weighing of competing values. Some of these values are held by virtually everyone, others by fewer people. Supreme Court justices likewise hold values. "The more widely held are the values in society, the more likely the Supreme Court will hold them, the more controversial the values, the Supreme Court is divided over them."1
1. Leonard W. Levy (Ed.) Judicial Review and the Supreme Court: Selected Essays, p. 197.