The Charade of Tradition-Based Substantive Due Process

Abstract

This Article criticizes the Supreme Court's substantive due process standard, by which the Court protects unenumerated constitutional rights only if they are deeply rooted in history and tradition. First, the Article objects to the standard by way of internal critique, arguing that it does not serve the principal rationale for its adoption, constraining judicial discretion. The standard fails to constrain judicial discretion for three main reasons: First, the Court has vast discretion in deciding which traditions to take into account. Second, there is substantial discretion in determining how to define the tradition at issue, which can be exploited to advance the predilections of the Justices. Finally, even if the Court finds that an asserted liberty interest is supported by American tradition, it must take the further step of determining whether that interest should receive contemporaneous protection, an inquiry which depends heavily on the type of moral judgment the Court sought to avoid by using the deep roots test. Taken collectively, these points show that the deep roots test does very little to cabin judicial discretion, as the Supreme Court had hoped it would. Second, the Article objects to the standard by way of external critique, arguing that it is at war with principles of personal autonomy, majoritarianism and normative progress. To avoid these problems, the Article proposes that the Court replace the current substantive due process standard with the open-ended standard articulated by Justice Cardozo in Palko v. Connecticut.