Even when the Constitution flatly forbids doing something – for example, prohibiting the free exercise of religion, or abridging freedom of speech or press – courts often weigh competing considerations to decide whether the “something” may be done, pleading that the meaning of the prohibition isn’t clear.

When courts require that different things be balanced, the only way to tell whether they have been balanced in the way the courts think they should be balanced is to go right back to the courts.  So you can see why some judges would love balancing tests.  They encourage litigation and make judges more important.  They increase their power at the expense of the power of legislators.

This is a dangerous tendency, because courts are far less well equipped to balance competing considerations than legislatures are.  That is the sort of thing legislators are for.

But wouldn’t this problem solve itself?  The Framers expected each branch to be jealous of the power of the others, so one would expect legislators to use their checks to resist the judicial invention of balancing tests.  One would think they would say that if it is really true that the meaning of a particular Constitutional prohibition isn’t clear, pinning its meaning down is a legislative, not a judicial job.

On the contrary, when issues are so hot that legislators are afraid to exercise their constitutional responsibilities for fear of what the voters might do, sometimes they even insist that courts use balancing tests.  They are only too happy to kick the ball into the courts.

My lecture this evening in Arlington, Virginia

Sometimes married grad students ask me when is the right time to have children.  After I get my degree?  After my wife gets hers (or my husband gets his)?  After I land a teaching job?  After I win tenure?  After I am established in my field?  You see how it goes; the right time never comes.

My suggestion:  Children change us.  Don’t wait to have children when the right time has come; the time becomes right when you have them.  If you were ready for marriage, you are ready for children.  Stop waiting.  Stop dithering.  Just begin.

The same people often assert both of the following propositions:

#1:  I may have intercourse with anyone at any time whenever I feel desire, because I am only a body.

#2:  It doesn’t matter whether I am having intercourse with the opposite sex, the same sex, or Martians, because I am not defined by my body.

We don’t often stop believing in God, then start looking for new sins to commit.  We become attached to sins we don’t want to give up, then start looking for reasons not to believe in God.

My lecture later this week in Arlington, Virginia

Evidence is piling up that women are attracted to different kinds of men when they are in the fertile phase of their monthly cycle than when they aren’t.  When ovulating, they more strongly prefer men who are masculine, intelligent, and competitive with other men.  By “smoothing” hormone levels throughout the cycle, the oral contraceptive pill cancels out the monthly surge in preference for men with these qualities.  To put it another way, female use of the pill is good news for males who are less masculine, less intelligent, and less competitive.

Men, in turn, find women most attractive precisely when they are most fertile.  By suppressing ovulation, the pill makes a woman’s average attractiveness to men over the monthly cycle lower than it would have been otherwise.

Must I list all the reasons why this is disturbing?

(Summarizing the results of Alexandra Alvergne and Virpi Lummaa, “Does the Contraceptive Pill Affect Mate Choice in Humans?”  Trends in Ecology and Evolution, Vol. 30, No. 10.)