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Does balancing adequately capture the nature of rights? 289
I have thus sought in this article to show that understanding the way in
which rights can be limited is not just a technical matter of constitutional
law doctrine. It goes to the heart of what it is to have a fundamental right.
It is imperative that the courts in their reasoning about rights understand
what they are doing and so ensure that rights are not treated as simply one
consideration to be balanced against many others, but are given the
normative weight they deserve. Such weight should not, though, preclude
the limitation of rights where this is, in fact, warranted. Balancing indeed
has an important part to play in constitutional law: it must, however, be
supplemented with a proper structural and substantive understanding of
rights.