Law & Economics Working Papers
In law and politics, some people are trimmers. They 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 deepest in and 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 many 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.
Cass R. Sunstein, "Trimming" (John M. Olin Program in Law and Economics Working Paper No. 421, 2008).