The "Ordered Liberty" of Substantive Due Process and the Future of Constitutional Law as a Rhetorical Art: Variations on a Theme from Justice Cardozo in the United States Supreme Court

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I. INTRODUCTION

Few judges are as revered in American legal history as Benjamin Nathan Cardozo (1) (1870-1938). And few have had as influential an impact on the growth of American law as Justice Cardozo. (2) Both on the bench and in the lecture hall, he crafted an enduring legacy as a compelling practitioner of the creative possibilities present within the common law tradition. His long tenure on the New York Court of Appeals (1914-1932), leading it as Chief Judge for five years (1928-1932), (3) brought fame to the court. (4) His creative use of the common law in several famous opinions (5) as well as his Storrs Lectures on the role of creativity in the judicial process delivered at Yale in 1921 (6) made him the most influential common law jurist of the first third of the twentieth century. (7)

In 1932, after his distinguished service in New York State, Judge Cardozo was tapped to become an Associate Justice of the United States Supreme Court. (8) During his brief six years on the Court (1932-1938), Justice Cardozo left a notable legacy in constitutional law that continues to influence the most recent opinions of the Court. That legacy mostly originates in the following oft-quoted phrases from Justice Cardozo's 1937 opinion for the Court in Palko v. Connecticut:

"[The Due Process Clause of the Fourteenth Amendment protects those rights which are] of the very essence of a scheme of ordered liberty. To abolish them is ... to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" (9)

These phrases often appear in the opinions of the Court today, seventy years after Justice Cardozo first wrote them. (10) They are part of the long history of the constitutional doctrine of fundamental rights that stretches back to the earliest days of constitutional history in the eighteenth century. (11) Today they are deeply woven in the fabric of contemporary substantive due process doctrine, (12) and also serve as the touchstone of the fundamental rights strand of the equal protection doctrine. (13) In contemporary substantive due process doctrine, Justice Cardozo's Palko phrases have, as we shall see, played a prominent role in cases involving some of the most controversial cases to come before the Court since 1965, and continue to shape constitutional argument about due process at the dawn of the twenty-first century. The story of these recent controversial cases is a story of variations on Justice Cardozo's memorable theme in Palko that continues to reverberate today through the opinions of different justices who hold quite different views on the content and application of Justice Cardozo's theme as an elaboration of the substantive dimensions of the Due Process Clauses of the Fifth and Fourteenth Amendments. A close look at this story can shed new light on the nature and meaning of the controversy that surrounds the substantive due process doctrine today; at the same time, it illuminates the nature of legal reasoning in a constitutional context and the continuing controversy surrounding the Court's role in interpreting the Constitution.

Based on a critical examination of the substantive due process cases in which Justice Cardozo's theme appears, I shall argue the following:

Constitutional argument is a rhetorical art, marked by a special form of practical reasoning that involves the task of persuasion to support a particular choice of action in the interpretation and application of the Constitution. While analogical reasoning is employed in such opinions for the purpose of drawing on precedent in the classic case-by-case reasoning of the Anglo-American legal tradition, contrary to the primacy given to such reasoning from precedent, it is practical reasoning to support a particular choice of action, among several choices available, and NOT analogical reasoning that best explains the activity of the justices who decide constitutional cases and the lawyers who appear before the Court in constitutional cases. …