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.
Katharine T. Bartlett, Tradition as Past and Present in Substantive Due Process Analysis, 62 Duke Law Journal 535-578 (2012).
Available at: http://scholarship.law.duke.edu/dlj/vol62/iss3/2