Tradition as Past and Present in Substantive Due Process Analysis
Bartlett, Katharine T., Duke Law Journal
Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases under the substantive due process clause. Some conservative Justices say that substantive due process protects only rights that were firmly established when the Constitution was ratified. In contrast, some liberal Justices dismiss tradition as being too stagnant and oppressive to serve as a limit on substantive due process rights, relying instead on contemporary norms and reason. Both of these approaches share an oppositional view of past and present, and permit little opportunity for deeper, searching inquiry into what liberty interests are so deeply embedded in this Nation's identity that they should be protected by the U.S. Constitution. The Essay presents a richer, interactive understanding of tradition as a continuity between past and present. Tradition represents what elements of our evolving past we wish to own in the present. The Essay explores this alternative view of tradition using as exemplars some judicial opinions in the substantive due process area, largely from the Court's center. It argues that tradition does not deserve a place in substantive due process analysis simply because it represents a fixed truth from some distant past, nor should tradition be entirely rejected as a source of substantive due process rights simply because of its connection to the past. Understood as a source of our identity that is both inherited and changing, tradition can serve as a constructive focal point for determining substantive due process rights.
TABLE OF CONTENTS Introduction I. Tradition in Substantive Due Process Jurisprudence: Two Opposing Views A. Tradition as Positive, Fixed, and Limiting 1. The Model 2. The Critique B. Tradition as "Steeped in Prejudice and Superstition" 1. The Model 2. The Critique II. Beyond the Past/Present Dichotomy A. An Integrative View of Past and Present: The Model B. The Interactive View of Past and Present: Applications 1. End-of-Life Decisionmaking 2. Private Sexual Conduct Between Individuals of the Same Sex 3. Grandparent Visitation III. Implications of an Integrative View of Tradition Conclusion
Some political candidates speak of restoring traditional values, as if going backwards were a meaningful direction and could erase today's undesirable social norms. Other candidates speak of completely changing the way we do business, as if the past could be swept aside and the present constructed upon a foundation disconnected from what has come before. These invocations have rhetorical power and provide a shorthand in political discourse. The trouble is that, in making a virtue out of distancing past from present, they also exaggerate divisions within current politics, discourage efforts to find common ground and shared commitments, and mask actual commitments behind rhetorical screening.
This dichotomous way of thinking about traditional values operates not only in politics, but in judicial decisionmaking relating to individual constitutional rights. For some members of the U.S. Supreme Court, tradition is the only legitimate source of substantive due process rights; in other words, no matter how well-accepted a liberty or identity interest has come to be in present society, substantive due process protection is not available unless the right was already, at some specific chronological moment, "deeply rooted in this Nation's history and tradition." (1) Even with respect to equal protection rights, Justice Scalia believes that "the function of [the Supreme Court] is to preserve ... society's values ... not to revise them." (2) For some other Justices, in contrast, tradition is a source of oppression, and thus a cause for suspicion, not constitutional instantiation. …