None of this is conclusive against the balancing approach. “Rights as trumps”
is so far just another piece of imagery to pit against “striking a new balance.”
And we must not be seduced by our technical familiarity with ideas like sideconstraints
or lexical priority into thinking that these can be applied
unproblematically to civil liberties. On the contrary, there is much in our
tradition of civil liberties thinking which cannot be modelled in this way. For
instance, existing legal guarantees of civil liberties are always hedged around
with explicit provisos to the effect that they may be limited “in the interests of
national security, territorial integrity or public safety,”9 and sometimes with
implicit doctrines to the effect that the rights must be adapted to circumstances,
the constitution is not a suicide pact, etc.10 How far these should be regarded as
political compromises to get the state to offer any guarantees at all, or how far
they should be regarded as reasonable features of a well-thought-through theory
of civil liberties is an open question.