2015] MCCUTCHEON, CONFLICTS & THE SUFFICIENCY QUESTION 1599
a possibility, for he endorses a strict multilateralist approach that
permits tradeoffs among only a subset of constitutional interests.
289
One can reject Rawls’s predetermined hierarchy among constitu-
tional rights without embracing unilateralism. For example, rather
than the Rawlsian conclusion that R
1
has strict priority over R
2
in
all circumstances, a methodology might undertake context-sensitive
analysis that inquires whether the benefits to R
1
justify the costs to
R
2
. Such a context-driven analysis is not only imaginable but, as
explained above, basically describes Alexy’s approach.
290
Once one recognizes the possibility of a multilateralist analysis,
a unilateralist doctrine (like Sufficiency Simpliciter) seems to be
normatively suspect as applied to constitutional conflicts. After all,
when a statute addresses a constitutional conflict, why should a
court’s assessment of the statute’s constitutionality consider only
one of the two constitutional interests?
291
This is a powerful objection, but there is a plausible answer.
Courts may not be institutionally competent to undertake a compar-
ison of the costs and values of two constitutional rights because, as
explained above, they typically are incommensurable goods.
Legislatures and the executive, by contrast, may be more institu-
tionally competent, and democratically appropriate, than courts to
make such determinations.
292
Sufficiency Simpliciter’s unilateralism
thus may reflect courts’ appropriate deference to the more political
branches. Fully defending the merits of this proposition lies beyond
289. To review, basic liberties can be limited only for the sake of other basic liberties, not
for the sake of non-basic liberties. See supra Part II.A.
290. See supra Part II.B.3.b.
291. Against this, it might be insisted that strict scrutiny is not fairly characterized as
being unilateralist since a court’s decision to deploy strict scrutiny (and admittedly look only
to R
2
when analyzing if there is a compelling governmental interest) is preceded by the court’s
conclusion that the regulation implicates R
1
. Thus, continues the objection, the court’s
analysis in fact has taken account of both R
1
and R
2
, and for that reason is not unilateralist.
This objection is technically true, but does not address the substance of the critique of
unilateralism. To see why, suppose that a governmental goal to achieve some constitutional
end R
2
automatically satisfies strict scrutiny’s compelling governmental interest requirement.
In effect, this would mean that limitations on R
1
would be permissible without taking any
comparative measure of the value of R
1
in relation to R
2
. And that, of course, is the type of
unilateralist analysis that multilateralism criticizes.
292. Indeed, they do so all the time; legislating and budget writing are quintessential acts
of harmonizing incommensurable commitments. See generally Rosen, supra note 287, at 18-
25.