[rklhcoxl] Promote the general welfare

For the truly difficult court decisions, perhaps weighing one very important human (and Constitutional) right against another, let the final decider be from the Preamble: "promote the general welfare".  And if the direction which better promotes the general welfare is not clear, choose the direction which will provide more information for revisiting the issue in the future (probably favoring a change from the status quo, or perhaps the direction which promotes more freedom which will cause people to explore the state space of society more), and note that in the decision: "this decision is not intended to set precedent, but to gather information for making a future determination about whether it promotes the general welfare".

As a case in point, consider abortion in 1973.  Much has been said about the important rights on each side, and let's assume there's no definitive answer.  Then, which promotes the general welfare?  That's unknown, too (as of 1973).  Then, we choose legalizing abortion, because then we can study the effect on society between those who choose to have abortions and those who don't (favoring more freedom).  (Alternatively, we choose leaving up to the states (which is the reverse of Roe v. Wade), then we can compare different states who choose to legalize or not.)  Perhaps we discover the decline in murder rates.  Perhaps (as seen in India and China) sex-selective abortions skyrocket and we have a definitive answer against promoting the general welfare (though forbidding abortion is probably not the best way to solve their problems).  The point here is, deciding on abortion is relatively easy, and not full of emotion.

On the flip side, people like precedent.  It makes the legal system more predictable, and greater predictability means less risk.  But judicial risk in court decisions are probably cases in finance and the economy, and less about weighing one human right against another.