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ARTICLE
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
Howard J. Vogel*
I. INTRODUCTION
Few judges are as revered in American legal history as Benjamin
Nathan Cardozo1 (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 opinions5 as well as his Storrs
* Professor of Law, Hamline University School of Law. In preparing this Article I have been
greatly aided by CC Vassar, Hamline University School of Law Class of 2008. Her excellent
work and cheerful attitude in taking on a demanding task make her one of those special
students who make teaching a joy for me. I also appreciate the assistance I have received
from Susan Kiefer, J.D., during her tenure as Director of the Hamline Law Library and Barb
Kallusky, J.D., Faculty Services Librarian of the Hamline Law Library. Thanks also to the
editorial staff of the Albany Law Review for their constructive suggestions and careful editing
of this Article. This Article is dedicated to Truman and Reta Wood, in whose living room I
first learned the art of applied rhetoric during High School debate team practice.
1 ANDREW L. KAUFMAN, CARDOZO 3 (1998).
2 Id. at 303 (articulating Justice Cardozo’s impact on the legal community through his
refinement of negligence theory).
3 The Historical Society of the Courts of The State of New York, Benjamin N. Cardozo,
http://www.courts.state.ny.us/history/Cardozo.htm (last visited Aug. 8, 2007).
4 KAUFMAN, supra note 1, at 3; see also Robert M. Jarvis & Phyllis Coleman, Benjamin N.
Cardozo: New York Giant, 13 MARQ. SPORTS L. REV. 63, 102 n.292 (2002).
5 See, e.g., MacPherson v. Buick Motor Co., 111 N.E. 1050, 1055 (N.Y. 1916) (crafting
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Lectures on the role of creativity in the judicial process delivered at
Yale in 19216 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
negligence liability to include distributors of a finished product regardless of manufacturer
defects).
6 BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
7 For a biography of Justice Cardozo, see KAUFMAN, supra note 1, at 3, and for a historian’s
study of Justice Cardozo’s judicial opinions, see RICHARD POLENBERG, THE WORLD OF
BENJAMIN CARDOZO: PERSONAL VALUES AND THE JUDICIAL PROCESS (1997).
8 KAUFMAN, supra note 1, at 4, 471.
9 302 U.S. 319, 325 (1937) (quoting his opinion for the Court in Snyder v. Massachusetts,
291 U.S. 97, 105 (1934)).
10 E.g., Clark v. Arizona, 126 S. Ct. 2709, 2737 (2006); Washington v. Glucksberg, 521 U.S.
702, 768 (1997) (Souter, J., concurring).
11 See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 387–88 (1798) (stating that fundamental
rights are the basis in which “men enter into society” and they are principles that “flow[] from
the very nature of our free republican government[]”).
12 See, e.g., Chavez v. Martinez, 538 U.S. 760, 774–75 (2003) (discussing, inter alia,
whether a suspect subjected to a coercive interrogation after being shot could maintain an
action for violation of substantive due process rights); Roe v. Wade, 410 U.S. 113, 152–53
(1973) (upholding the right of privacy as encompassing the abortion decision process).
13 See, e.g., Romer v. Evans, 517 U.S. 620, 631–34 (1996) (striking down as
unconstitutional a Colorado constitutional amendment prohibiting any legal protection of
homosexual persons’ rights).
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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. This claim does not dispute the importance of
analogical argument and the doctrinal rules which occupy much of a
student’s time in the law school classroom, but it does make the
strong claim that analogical argument in constitutional law is
important only because it is secondary to the core of constitutional
argument. It is practical reasoning that marks constitutional
argument as a rhetorical practice. The implication for legal
education is that law students are engaged in the study and
development of skill in applied rhetoric, which makes use of the
peculiar vocabulary and rules of law, and that outcomes in legal
cases are determined by the choices made in applying those rules
rather than by the rules themselves. Such a view of legal reasoning
calls for us to reframe, rather than to abandon, what it means to say
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that the rule of law is independent and objective as a central tenet
of the Anglo-American legal tradition.
To make this argument, the Article is divided into three parts.
Part II, offers a brief historical survey of the constitutional doctrine
of “fundamental rights” in order to provide the historical context for
understanding Justice Cardozo’s opinion in Palko, both in terms of
constitutional history prior to his arrival on the Supreme Court, as
well as in terms of the debate over incorporation of the Bill of Rights
within the Fourteenth Amendment which was a feature of his brief
time on the Court. Part III takes up a critical analysis of the
variations on Justice Cardozo’s Palko theme as crafted by a number
of United States Supreme Court Justices in some of the most
prominent and controversial cases of the last forty years, starting
with Griswold v. Connecticut in 1965.14 What Justice Cardozo
contributed in Palko to the debate over incorporation has played an
important role in the establishment of what is now understood as
“selective incorporation,” through the Fourteenth Amendment, of
most of the guarantees of the Bill of Rights as applicable against the
states.15 Justice Cardozo’s theme from Palko has also come to play
a prominent and influential, but diverse, role in the Court’s
elaboration, under due process, of the implied non-economic
fundamental rights doctrine that has emerged in the last forty
years.16 Part III traces the use of Justice Cardozo’s theme from
Palko, by various members of the Court, in ten cases involving
substantive due process claims in five areas of especially
controversial contemporary political debate: Contraception;
Abortion; Family Autonomy; End of Life Health Care; and
Consensual Sexual Conduct between Adults of the Same Sex. This
critical assessment will demonstrate the central role that choice,
and thus practical reasoning, plays in the work of various justices in
these cases. Part IV assesses the meaning of the role of choice in
constitutional adjudication as illustrated in Part III in order to
understand the nature of constitutional law, and more generally for
the light it sheds on the nature of legal reasoning and the judicial
role in American life and culture. Part IV offers a constructive
theory of constitutional law that focuses on the activity of lawyers
as applied rhetoric and closes with some reflections on what the
implications of this analysis might be for the future of constitutional
14
15
16
Griswold v. Connecticut, 381 U.S. 479 (1965).
See, e.g., Williams v. Florida, 399 U.S. 78, 129–31 (1970).
See, e.g., infra notes 140–49 and accompanying text.
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law as a rhetorical art and the content and character of legal
education.
II. A THEME FROM JUSTICE CARDOZO IN THE CONTEXT OF AMERICAN
CONSTITUTIONAL HISTORY: FUNDAMENTAL RIGHTS AND THE RISE
AND FALL OF ECONOMIC SUBSTANTIVE DUE PROCESS
The ordered liberty as “rooted in the traditions and conscience of
our people as to be ranked as fundamental” espoused by Justice
Cardozo in Palko17 did not spring whole, completely new and fully
formed on the canvas of constitutional law doctrine at one
particular moment in time. It is indebted to, and is a notable
milestone in, the story of the venerable and troublesome tradition of
fundamental rights doctrine in American constitutional law.
Fundamental rights, as a term of art, while not explicitly found in
the text of the Constitution, has made its way to frequent
expression over the years in the Court’s work as a source of
protection for individual rights under various clauses of the
constitutional text.18
The fundamental rights doctrine is controversial for two reasons.
First, it has been the source of unenumerated rights—rights that
can only be implied because they are not explicitly mentioned in the
text of the Constitution.19 This point of controversy is especially
noteworthy since the Ninth Amendment, which seems to give
explicit textual recognition to a body of unspecified implicit rights,
has not been embraced as a source of such rights by the Court.20
Secondly, fundamental rights have engendered controversy over the
years because of the fact that it has moved around between three
textual sources in the Constitution: the Privileges and Immunities
Clause,21 the Due Process Clause,22 and the Equal Protection
Clause.23 Furthermore, in the last forty years, fundamental rights
have reappeared under due process.24 This history suggests the
Palko v. Connecticut, 302 U.S. 319, 325 (1937).
E.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997). For an excellent history of
fundamental rights, see MILTON R. KONVITZ, FUNDAMENTAL RIGHTS: HISTORY OF A
CONSTITUTIONAL DOCTRINE (2001).
19 E.g., Poe v. Ullman, 367 U.S. 497, 542–43 (1961) (Harlan, J., dissenting).
20 E.g., Griswold v. Connecticut, 381 U.S. 479, 491–92 (1965).
21 See, e.g., Saenz v. Roe, 526 U.S. 489, 501–04 (1999).
22 See, e.g., Duncan v. Louisiana, 391 U.S. 145, 148 (1968).
23 See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453–54 (1972).
24 See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (stating that the “right to liberty
under the Due Process Clause” includes consensual sexual conduct between same-sex
partners).
17
18
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lack of a principled basis for the Court’s work in protecting implied
rights not explicitly delineated in the constitutional text.25 Both of
these sources of controversy raise questions about the legitimacy
and the proper role of the Court.26
When the study of constitutional law in law schools turns to the
substantive as opposed to the procedural dimensions of the Due
Process Clauses of the 5th and 14th Amendments, first-year law
students typically encounter the most confusion they will experience
in the course. Plunging headlong into the cases in their quest for
the black-letter rules now becomes a frustrating task as students
encounter such illusive terms as “fundamental rights,” “liberty
interests,” “strict scrutiny,” and “undue burden”—all judicial glosses
on the text associated with due process. These terms have been
employed in the Court’s effort to specify the content of “liberty” as a
limit on governmental intrusion in the lives of individuals.27 This
effort to bring clarity to the inherent ambiguity of the meaning of
“liberty,” and the “process” that is “due” in order to protect it, has a
very dynamic history in the American constitutional tradition.28
How may the Court safely recognize a specific right, such as the
right to privacy, as a violation of “liberty” when the textual and
historical evidence for such right is weak or altogether absent?
Furthermore, how may the Court safely undertake judicial review of
legislative and executive action for this purpose without imposing
its own will as a choice of public policy that intrudes on the
authority and role of the coordinate branches of government? In
sum, what shall the Court rely on in the effort to identify the
authoritative source and content of implied rights? And what
interpretive approach to the constitutional text shall the Court take
in doing so?
The idea of implied rights predates the American constitution,
especially as an expression of the natural law background of the
Constitution that can be seen most notably in the Declaration of
Independence.29 After the adoption of the Constitution, the first
appearance of the idea of implied rights in the Court’s work, albeit
25 See Moore v. City of E. Cleveland, 431 U.S. 494, 502 (1997) (articulating concern when
the judicial branch acts outside the Bill of Rights on issues of substantive due process).
26 See id.
27 See KONVITZ, supra note 18, at 164.
28 See Washington v. Glucksberg, 521 U.S. 702, 720 (1977) (demonstrating development of
the term “liberty”).
29 See KONVITZ, supra note 18, at 38–40; EDWARD S. CORWIN, THE “HIGHER LAW”
BACKGROUND OF AMERICAN CONSTITUTIONAL LAW 80–82 (Cornell Univ. Press 1955) (1928)
(discussing the influence of the theory of natural rights on the Declaration of Independence).
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without explicit use of the term “fundamental rights,” came in
Calder v. Bull.30 It is embraced, again without mention of the term
“fundamental rights,” in the constitutional protection of vested
rights not expressly enumerated in the text of the Constitution in
Fletcher v. Peck.31 The first explicit use of the term “fundamental
rights” in the American constitutional tradition is most often traced
to Justice Bushrod Washington’s oft-quoted 1823 opinion in Corfield
v. Coryell.32
In that case, Justice Washington discussed
fundamental rights with a concern for constitutional protection of
the “Privileges and Immunities of Citizens in the several States” set
out in Article IV in the following well-known passage:
We feel no hesitation in confining these expressions to those
privileges and immunities which are, in their nature,
fundamental; which belong, of right, to the citizens of all free
governments; and which have, at all times, been enjoyed by
the citizens of the several states which compose this Union,
from the time of their becoming free, independent, and
sovereign. What these fundamental principles are, it would
perhaps be more tedious than difficult to enumerate. They
may, however, be all comprehended under the following
general heads: Protection by the government; the enjoyment
of life and liberty, with the right to acquire and possess
property of every kind, and to pursue and obtain happiness
and safety; subject nevertheless to such restraints as the
government may justly prescribe for the general good of the
whole. The right of a citizen of one state to pass through, or
to reside in any other state, for purposes of trade,
agriculture, professional pursuits, or otherwise; to claim the
benefit of the writ of habeas corpus; to institute and
maintain actions of any kind in the courts of the state; to
take, hold and dispose of property, either real or personal;
and an exemption from higher taxes or impositions than are
paid by the other citizens of the state; may be mentioned as
some of the particular privileges and immunities of citizens,
which are clearly embraced by the general description of
privileges deemed to be fundamental: to which may be
added, the elective franchise, as regulated and established by
the laws or constitution of the state in which it is to be
30
31
32
Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798).
See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 139 (1810).
Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823) (No. 3230).
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exercised.
These, and many others which might be
mentioned, are, strictly speaking, privileges and
immunities. . . .33
Since Corfield, fundamental rights as a constitutional term of art
have often been called on to refer to rights of a higher order.34 What
the source and character of that higher order might be has not
always been made clear.35 In the passage from Corfield, quoted
above, Justice Washington makes mention of rights that are
fundamental as an expression of the content of the privileges and
immunities mentioned in Article IV.36 In later years, fundamental
rights were found under the Due Process and Equal Protection
Clauses.37 Despite the ambiguity about the source, what does seem
to be clear is that, as a matter of constitutional doctrine,
fundamental rights have not been embraced by the Court as
grounded in natural law as suggested by Justice Chase in Calder.38
To the contrary, Justice Iredell’s rejection, in Calder, of Justice
Chase’s recourse to natural law became the dominant view of the
court.39
Justice Washington’s opinion in Corfield would be picked up by a
number of justices in the nineteenth century. A notable moment in
Id. (emphasis added).
See, e.g., Barrick Realty, Inc. v. City of Gary, 354 F. Supp. 126, 133 (N.D. Ind. 1973)
(stating that the right of privacy, equal protection, and freedom of expression are “clearly of a
higher order” than “the right of a homeowner to freely dispose of his property”).
35 Note that in Barrick, for example, reference to a “higher order” includes no more than an
assertion of what it includes without elaboration of how the rights specified as belonging to a
“higher order” do in fact represent such an order. Id.
36 Corfield, 6 F. Cas. at 551–52. In Corfield, the famous quotation on “fundamental rights”
merely asserts what some of these are, and claims no more about how to find them than that
they “belong . . . to citizens of all free governments.” Id. at 551.
37 E.g., Loving v. Virginia, 388 U.S. 1, 11–12 (1967) (holding that a Virginia law
prohibiting interracial marriage violated the Equal Protection Clause). Justice Stewart’s
concurrence in Loving addressed the due process side of the case by noting that the law
deprived individuals of “liberty without due process of law in violation of the Due Process
Clause of the Fourteenth Amendment.” Id. at 12; see also Roe v. Wade, 410 U.S. 113, 153
(1973) (holding that the right of privacy “founded in the Fourteenth Amendment’s concept of
personal liberty . . . encompass[ed] a woman’s decision whether or not to terminate her
pregnancy”).
38 Compare Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (stating that “[t]here are acts
which the federal, or state legislature cannot do, without exceeding their authority” due to the
limits placed on legislative powers by fundamental rights), with JOHN HART ELY, DEMOCRACY
AND DISTRUST: A THEORY OF JUDICIAL REVIEW 51–52 (1980) (stating that the concept of
natural law is “no longer respectable in [the constitutional] context” and has “all but
disappeared in American discourse”).
39 See Calder, 3 U.S. (3 Dall.) at 399 (Iredell, J., concurring); ELY, supra note 38, at 52
(stating that natural law concepts will not be relevant to constitutional disputes, which will
instead “involve an action that has been approved by the legislative branch of the
government”).
33
34
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this history came with the appearance of protection for privileges or
immunities in the Fourteenth Amendment in 1868, which raised
possibilities for the establishment of significant constitutional
rights-based limits on state power. But the post-Civil War Court
rejected that approach under all three of the clauses of the
Fourteenth Amendment (Privileges or Immunities, Equal
Protection, and Due Process) in its 1873 decision in the SlaughterHouse Cases.40 While this decision has rendered the Privileges or
Immunities Clause of the Fourteenth Amendment virtually
meaningless,41 soon thereafter the Court came to embrace due
process as a substantive check on state regulation of economic
liberty.42 Thus, fundamental rights, as a term of art, having first
explicitly appeared in an Article IV Privileges and Immunities
Clause case in 1823,43 was rendered meaningless as an additional
check on power in the first case to consider fundamental rights
under the Privileges or Immunities Clause of the Fourteenth
Amendment fifty years later.44 The term fundamental rights later
reappeared within the development of economic substantive due
process under both the Fifth and Fourteenth Amendments during
the so-called Lochner era of the late nineteenth and early twentieth
century.45
In the twentieth century, the fundamental rights doctrine came to
refer to those important rights which deserve heightened protection
expressed as the requirement for application of “strict scrutiny”
judicial review to government action which burdens the exercise of
such rights.46 Strict scrutiny review places a very large burden on
the government to prove that it has a “compelling interest” to justify
40 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80–81 (1872) (holding that “the rights
claimed by [the] plaintiffs . . . are not privileges and immunities of citizens of the United
States within the meaning of the clause of the fourteenth amendment,” nor could the stateimposed restraint on the “exercise of their trade . . . be held to be a deprivation of property” or
a violation of the Equal Protection Clause).
41 CONG. RESEARCH SERV., LIBRARY OF CONG., THE CONSTITUTION OF THE UNITED STATES
OF AMERICA: ANALYSIS AND INTERPRETATION 1674 (Johnny H. Killian et al. eds., 2004).
42 See, e.g., Munn v. Illinois, 94 U.S. 113, 134–35 (1876); Allgeyer v. Louisiana, 165 U.S.
578, 589 (1897).
43 Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230).
44 Slaughter-House Cases, 83 U.S. (16 Wall.) at 75.
45 See, e.g., Adair v. United States, 208 U.S. 161, 180 (1908) (“[T]he power to regulate
interstate commerce, great and paramount as that power is, cannot be exerted in violation of
any fundamental right secured by other provisions of the Constitution.”). The Lochner era
has been described as the “period beginning around the turn of the [twentieth] century with
Allgeyer [v. Louisiana] and ending by the middle of the 1930s with West Coast Hotel v.
Parrish.” 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1344 (3d ed. 2000). For a
more comprehensive guidepost on the Lochner era, see TRIBE, supra, at 1343–46.
46 See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997).
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the burden.47 In practice, application of strict scrutiny usually
means that the governmental action cannot pass constitutional
muster.48
The roots of contemporary substantive due process doctrine are
found in what we may call the “first era of substantive due process,”
when the Court provided significant protection for implied rights of
economic liberty during the Lochner era49—the name most often
given to the Court’s work during the laissez-faire period of American
history.50 The work of this period continues to have importance
today in the protection of non-economic liberty notwithstanding the
abandonment of economic substantive due process in the late
1930s.51 Starting as early as Munn v. Illinois, the Court began
reviewing state and federal regulation of economic liberty under the
Fourteenth Amendment Due Process Clause,52 and in Allgeyer v.
Louisiana, it struck down a state statute as a violation of that
clause.53 The formulation of the Court’s approach on due process
challenges to economic legislation is well-known from Justice
Peckham’s opinion for the Court in Lochner:
In every case that comes before this court, therefore, where
legislation of this character is concerned and where the
protection of the Federal Constitution is sought, the question
necessarily arises: Is this a fair, reasonable and appropriate
exercise of the police power of the State, or is it an
unreasonable, unnecessary and arbitrary interference with
the right of the individual to his personal liberty or to enter
into those contracts in relation to labor which may seem to
him appropriate or necessary for the support of himself and
See id. at 721.
See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (stating that under the “most rigid
scrutiny,” racial classifications “must be shown to be necessary to the accomplishment of
some permissible state objective, independent of the racial discrimination which it was the
object of the Fourteenth Amendment to eliminate”).
49 See, e.g., Coppage v. Kansas, 236 U.S. 1, 13–14 (1915) (discussing freedom of contract
and how “[i]f this right be struck down or arbitrarily interfere with, there is a substantial
impairment of liberty in the long-established constitutional sense”).
50 Iddo Porat, The Dual Model of Balancing: A Model for the Proper Scope of Balancing in
Constitutional Law, 27 CARDOZO L. REV. 1393, 1428 (2006).
51 See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391–92 (1937) (upholding the
constitutionality of a minimum wage law, and stating that while the Constitution “prohibits
the deprivation of liberty without due process of law[,] . . . [l]iberty under the Constitution
is . . . necessarily subject to the restraints of due process, and regulation which is reasonable
in relation to its subject and is adopted in the interests of the community is due process”).
52 Munn v. Illinois, 94 U.S. 113, 123 (1876) (reviewing the constitutionality of a state law
that fixed “the maximum of charges for the storage of grain in warehouses” under the Due
Process Clause of the Fourteenth Amendment).
53 Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897).
47
48
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his family?54
During this time, the Court frequently struck down legislation of
the state and federal governments that sought to regulate economic
and social life as an invasion of liberty under the Due Process
Clauses.55 During the Lochner era the court also took up checking
federal power under the Interstate Commerce Clause.56
The disaster of the Great Depression brought strong criticism of
the Court, including President Franklin D. Roosevelt’s “courtpacking plan” of 1936.57 By then, the Court had begun to show
signs of abandoning economic liberty as a limit on governmental
power.58 Shortly after Roosevelt’s resounding landslide victory in
the 1936 presidential election, the Court formally abandoned the
use of due process to protect economic liberty.59
Justice Cardozo’s time on the Court was spent during the waning
years of the Lochner era. The attack on the Court during this era
reached its peak during the election year of 1936, four years after he
joined the Court. The collapse of Lochner came shortly before
Cardozo’s death in 1938.
Justice Cardozo’s formulation in Palko (1937) was his
contribution to the incorporation debate. The debate involved the
question of whether the explicit guarantees of the first eight
Amendments to the Constitution were applicable to the states by
way of incorporation through the Due Process Clause of the
Fourteenth Amendment.60 The debate stemmed from the fact that,
Lochner v. New York, 198 U.S. 45, 56 (1905).
See, e.g., Adair v. United States, 208 U.S. 161, 180 (1908) (federal law prohibiting
employers from requiring that employees not join a union); Coppage v. Kansas, 236 U.S. 1, 11
(1915) (state law prohibiting employers from requiring that employees not join a union);
Truax v. Corrigan, 257 U.S. 312, 322 (1912) (state law limiting use of injunctions in labor
disputes); Adkins v. Children’s Hosp., 261 U.S. 525, 539 (1923) (state law setting minimum
wage for women and children). For a general discussion, see BENJAMIN F. WRIGHT, THE
GROWTH OF AMERICAN CONSTITUTIONAL LAW 148–179 (Phoenix Books 1967) (1942).
56 See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 269, 276–77 (1918) (invalidating a federal
statute regulating child labor as “exceed[ing] the constitutional authority of Congress” under
the Commerce Clause); Carter v. Carter Coal Co., 298 U.S. 238, 309–10 (1936) (invalidating a
federal statute that attempted to regulate wages, hours, and working conditions of miners).
57 For further discussion, see TRIBE, supra note 45, at 1360–61.
58 See, e.g., Nebbia v. New York, 291 U.S. 502, 525 (1934) (stating that due process under
the Fifth and Fourteenth Amendments “demands only that the law shall not be unreasonable,
arbitrary, or capricious”).
59 See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391–93 (1937) (upholding a state’s
power to regulate economic relationships when it reasonably promotes public welfare); NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (suggesting that there is a presumption
of constitutionality of regulatory legislation as long as there is a rational basis for the
legislation).
60 Palko v. Connecticut, 302 U.S. 319, 322–23 (1937).
54
55
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prior to the adoption of the Fourteenth Amendment, the Court held,
in Barron v. Mayor of Baltimore,61 that the Bill of Rights did not
serve as a limit on state power, only as a limit on federal power.62
The incorporation debate began as early as 1873 when it failed in
the Slaughter-House Cases.63 The opening salvo of the debate in the
twentieth century came in the non-economic liberty case of Twining
v. New Jersey.64 The appellants in Twining argued that the Fifth
Amendment privilege against self-incrimination was protected as
one of the privileges of citizenship under the Fourteenth
Amendment, as well as the Due Process Clause of that
The Court rejected both the privileges and
amendment.65
immunities and due process claims on the authority of the
Slaughter-House Cases,66 but, in commenting on the due process
claim, Justice Moody said:
It is sufficient to say that there are certain immutable
principles of justice which inhere in the very idea of free
government which no member of the Union may disregard.
The same words [of due process] refer to that law of the land
in each State, which derives its authority from the inherent
and reserved powers of the State, exerted within the limits of
those fundamental principles of liberty and justice which lie
at the base of all our civil and political institutions. . .. [Such]
proceedings [by the state] . . . in civil and criminal cases. .
.must not work a denial of fundamental rights. . ..67
Twining set the stage for those who wanted to argue either in
favor of selective incorporation or wholesale incorporation.
Proponents of selective incorporation maintained that some, but not
necessarily all, of the explicit guarantees of the first eight
amendments were incorporated by the due process clause of the
Fourteenth Amendment for application against the states. Those
who took this approach resisted a wholesale consideration of the
Bill of Rights under the Fourteenth Amendment. Nevertheless,
through the case-by-case approach of selective incorporation, which
won the day in the Court, most, if not all, of the explicit guarantees
of the Bill of Rights have become available as a limit on state
61
62
63
64
65
66
67
32 U.S. (7 Pet.) 243 (1833).
Id. at 250.
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72–78 (1873).
211 U.S. 78 (1908).
Id. at 93, 99.
Id. at 96–99, 113.
Id. at 102 (internal quotation marks and citations omitted).
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power.68
Beyond setting the stage for the 20th Century debate over
incorporation, Justice Moody’s opinion in Twining opened up
another debate that continues today—whether the Due Process
Clause offers protection for implied fundamental rights not
mentioned in the Bill of Rights or under the Fourteenth
Amendment, even though not explicitly found anywhere in the text
of the Constitution.69 Justice Moody’s embrace of the idea that the
rights of individuals are not exhausted by the list of those explicitly
specified in the constitutional text is firmly fixed in the Court
today.70 What the justices continue to intensely disagree with each
other on has already been mentioned—how may the Court reliably
discern the source and content of liberty and the choice of
interpretive approach for doing so without imposing the Justices’
personal values on the constitutional text?71
Justice Cardozo made his own distinctive contribution to both the
68 The earliest successful case for selective incorporation is Chicago, Burlington & Quincy
R.R. Co. v. Chicago, in which the court held that the Fourteenth Amendment Due Process
Clause prohibited the states from taking private property for public use without
compensation. 166 U.S. 226, 241 (1897). It is notable that this case involved a form of
economic liberty and this is consistent with the protection of economic liberty under the Due
Process Clause of the Amendment in Lochner v. New York, in which a New York statute
limiting hours for bakers was held to violate the Fourteenth Amendment Due Process Clause.
198 U.S. 45, 64 (1905). It is notable that these two cases, both decided during the so-called
Lochner era in which the Court protected economic liberty vigorously from state and federal
regulation, were the exceptions from the application of the Slaughter-House Cases. Other
cases of this era in which claims were made for selective incorporation that did not involve
economic liberty were unsuccessful. See, e.g., United States v. Cruikshank, 92 U.S. 542, 552–
53 (1876) (right to assemble and bear arms); Walker v. Sauvinet, 92 U.S. 90, 92 (1876) (right
to a civil jury trial); Hurtado v. California, 110 U.S. 516, 534–35 (1884) (right to grand jury
indictment); Presser v. Illinois, 116 U.S. 252, 164–66 (1886) (right to bear arms); Maxwell v.
Dow, 176 U.S. 581, 604–05 (1900) (right to a criminal jury trial of twelve members); Twining,
211 U.S. at 99 (right to freedom from self-incrimination).
Selective incorporation began to pick up steam in the years that followed. Before the late
1960s almost all of the first eight Amendments were held to be incorporated by the
Fourteenth Amendment as a limit on state power. Duncan v. Louisiana, 391 U.S. 145, 148
(1968) contains a list of those rights so incorporated, so that today only the right to grand jury
indictment, the right to be free of the quartering of troops in one’s home, and the right to bear
arms have not yet been incorporated under the Fourteenth Amendment Due Process Clause.
In Williams v. Florida, 399 U.S. 78, 102–03 (1970), and Burch v. Louisiana, 441 U.S. 130, 139
(1979), the Court established that the Sixth Amendment right to a jury trial at least requires
a trial by six jurors in which a unanimous verdict is mandated.
69 See Palko v. Connecticut, 302 U.S. 319, 322 (1937); Malloy v. Hogan, 378 U.S. 1, 15–17
(1964) (Harlan, J., dissenting).
70 The Supreme Court has consistently upheld the right to marital and family privacy as
implicit in the Fourteenth Amendment. E.g., Lawrence v. Texas, 539 U.S. 558, 578–79
(2003); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992); Griswold v.
Connecticut, 381 U.S. 479, 485–86 (1965); Moore v. City of E. Cleveland, 431 U.S. 494, 499
(1977).
71 E.g., Lawrence, 539 U.S. at 586–99 (Scalia, J., dissenting).
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incorporation debate and the broader implied fundamental rights
debate. He did this in a way that recalls the language of Corfield
when he speaks of “those ‘fundamental principles of liberty and
justice which lie at the base of all our civil and political
institutions’” when elaborating on the meaning of—his distinctive
contribution—”ordered liberty . . . rooted in the traditions and
conscience of our people.”72 In doing so, he characteristically
demonstrates careful attention to the work of the past while
embarking on the creative use of that past for the needs of the
present and future.
Justice Cardozo’s first approach to elaborating the meaning of due
process came in Snyder v. Massachusetts,73 where he wrote: “The
[state] is free to regulate the procedure of its courts in accordance
with its own conception of policy and fairness, unless in so doing it
offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.”74 Three
years later this phrase about the principles of justice “rooted in the
traditions and conscience of our people” was quoted in Palko when
Justice Cardozo wrote again on the rights protected by the Due
Process Clause of the Fourteenth Amendment.75 In Palko, he coined
his “ordered liberty” phrase when he wrote that these rights were
“of the very essence of a scheme of ordered liberty”76 and combined
this phrase with the language quoted immediately above from
Snyder.77 Near the end of his opinion, he adds to this formulation
when he says that the “unifying principle” in past cases, which
marks the dividing line between those cases which address rights
included within the ambit of due process from those which are not
so included, is the question of whether the “hardship [to which the
defendant has been subjected by the state statute is] so acute and
shocking that our polity will not endure it? Does it violate those
‘fundamental principles of liberty and justice which lie at the base
72 Palko, 302 U.S. at 325, 328.
Note the similarity of Cardozo’s language about the
foundations of our “civil and political institutions” and “the traditions and conscience of our
people” to Washington’s language about “those privileges and immunities . . . which belong, of
right, to the citizens of all free governments; and which have, at all times, been enjoyed by the
citizens of the several states which compose this Union, from the time of their becoming free,
independent, and sovereign.” Corfield v. Coryell, 6 F. Cas. 546, 551 (1823).
73 J. Richard Broughton, The Jurisprudence of Tradition and Justice Scalia’s Unwritten
Constitution, 103 W. VA. L. REV. 19, 34 (2000) (noting that the Supreme Court’s reliance on
tradition in due process cases was first expressed by Justice Cardozo).
74 Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (emphasis added).
75 Palko, 302 U.S. at 325.
76 Id. (emphasis added).
77 Id.
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of all our civil and political institutions?’”78
Palko involved an appeal from a second conviction in state court
for the same crime that Mr. Palko claimed violated the prohibition
of double jeopardy under the Due Process Clause of the Fourteenth
Amendment.79 The facts of the case would have constituted double
jeopardy under the Fifth Amendment if the case had arisen in
federal court.80 The Court denied his claim under both the Due
Process and Privileges or Immunities Clauses of the Fourteenth
Justice Cardozo cites Twining,82 where the
Amendment.81
appellant’s claims were denied, as they would be in Palko as well.83
In Palko, Justice Cardozo’s opinion, like that of Justice Moody in
Twining three decades earlier, embraced the possibility of locating
some of the guarantees of the Bill of Rights, as well as other implied
fundamental rights, within the ambit of the Fourteenth
Amendment’s Due Process Clause, while denying such protection
for the interests advanced in the case.84
Palko would be overturned in 1969.85 Thus, although Justice
Cardozo applied his due process formulation in Palko in a way that
did not support selective incorporation of the guarantees against
double jeopardy as a limit on state power,86 this formulation was
eventually vindicated in other selective incorporation cases.87 Most
importantly for our present purposes, Justice Cardozo’s Palko due
process theme came to provide an important source of precedential
authority in several implied fundamental rights cases in the socalled second era of substantive due process involving non-economic
implied rights, which opened with the Court’s decision in Griswold
v. Connecticut in 1965.88 Before going on to critically examine the
variations on Justice Cardozo’s theme in these cases and to consider
the meaning of that phenomenon, however, it will be instructive to
briefly consider the debate over constitutional interpretation that is
78 Id. at 328 (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)).
Note how this
language tracks with that in Corfield, quoted at text accompanying supra note 33.
79 Palko, 302 U.S. at 321–22.
80 See id. at 322.
81 Id. at 322, 328.
82 Id. at 325.
83 See Twining v. New Jersey, 211 U.S. 78, 114 (1908) (“[T]he exemption from compulsory
self-incrimination in the courts of the States is not secured by any part of the Federal
Constitution.”).
84 Palko, 302 U.S. at 326–27.
85 Benton v. Maryland, 395 U.S. 784, 794 (1969).
86 Palko, 302 U.S. at 322.
87 See, e.g., Williams v. Florida, 399 U.S. 78, 131–32 (1970) (Harlan, J., concurring); Price
v. Georgia, 398 U.S. 323, 330 (1970); Benton, 395 U.S. at 794.
88 381 U.S. 479, 482–83 (1965).
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present in the incorporation debate. That debate will continue in
later cases where the concern turns from incorporation to the
substantive content of the implied rights protected by due process.89
Justice Hugo Black was a prominent figure in both the
incorporation debate and the debate over substantive due process.90
Justice Black set out his view in the incorporation debate most
prominently in Adamson v. California.91 In Adamson, the Court
affirmed the holdings of Twining and Palko that neither the
privilege against self-incrimination, nor the prohibition on double
jeopardy are protected under the Privileges or Immunities and Due
Process Clauses of the Fourteenth Amendment.92 Justice Black
took the majority to task in a long and notable dissent.93
The majority in Adamson took the approach of Justice Moody in
Twining while finding that the facts in Adamson did not merit the
protection that approach held open.94 In his dissent, Justice Black
singled out Twining for criticism as an example of “natural law”
that would permit the Court to exercise “boundless power . . .
periodically to expand and contract constitutional standards to
conform to the Court’s conception of what at a particular time
constitutes ‘civilized decency’ and ‘fundamental [principles of]
liberty and justice.’”95 He went on to set out the argument for
adoption of his “total incorporation” view of the Fourteenth
Amendment.96 In Justice Black’s view, the legislative history of the
Its framers understood
Fourteenth Amendment was clear.97
Barron’s limit on the application of the Bill of Rights and intended
to overrule it.98 Black sums up his view in the following words:
I fear to see the consequences of the Court’s practice of
89 See, e.g., id.; Eisenstadt v. Baird, 405 U.S. 438, 446–47 (1972) (quoting Reed v. Reed, 404
U.S. 71, 75–76 (1971), in which the Court recognized that the Fourteenth Amendment does
not prohibit the states from treating classes of people differently, but instead prohibits the
states from placing people in classes and treating them differently based on criteria unrelated
to the objective of the statute).
90 Justice Black’s objection to substantive due process as the source of selective
incorporation is found in Adamson v. California, 332 U.S. 46, 68–92 (1947) (Black, J.,
dissenting), and Duncan v. Louisiana, 391 U.S. 145, 162–71, (1967) (Black, J., concurring).
His objection to substantive due process per se is found in Griswold v. Connecticut, 381 U.S.
479, 511–13 (1965) (Black, J., dissenting).
91 Adamson, 332 U.S. at 68, 70–71 (Black, J., dissenting).
92 Id. at 53 (majority opinion).
93 Id. at 68–92 (Black, J., dissenting).
94 Id. at 52, 58 (majority opinion).
95 Id. at 69 (Black, J., dissenting).
96 Id. at 89.
97 See id. at 74–75 (arguing that the language of the Fourteenth Amendment makes it
clear that no state could deprive its citizens of the protections provided by the Bill of Rights).
98 Id. at 68.
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substituting its own concepts of decency and fundamental
justice for the language of the Bill of Rights as its point of
departure in interpreting and enforcing that Bill of Rights.
If the choice must be between the selective process of the
Palko decision applying some of the Bill of Rights to the
States, or the Twining rule applying none of them, I would
choose the Palko selective process. But rather than accept
either of these choices, I would follow what I believe was the
original purpose of the Fourteenth Amendment—to extend to
all the people of the nation the complete protection of the Bill
of Rights. To hold that this Court can determine what, if
any, provisions of the Bill of Rights will be enforced, and if so
to what degree, is to frustrate the great design of a written
Constitution.99
The search for the source and content of fundamental rights in
Twining and Palko, the cases criticized by Justice Black in his
Adamson dissent, need not, of course, be viewed as an appeal to
“natural law.” They could be read as simply an appeal to “higher
law” rooted in the Anglo-American legal tradition and its relation to
the institutions of free citizens and the governments established by
them. In fact the phrase taken by Justice Cardozo in Palko, from
past cases, about what “lie[s] at the base of all our civil and political
institutions,” 100 does just that.
By the time Adamson was decided, Justice Cardozo had been gone
for ten years, and the selective incorporation approach was winning
the day in the Court.101 Justice John Marshall Harlan II joined the
Court in 1955, and he became a strong advocate for a reasoned
approach to interpreting the Due Process Clause to discern its
substantive content without reference to specific provisions of the
Bill of Rights by use of an incorporation argument.102 Justice
Harlan saw the Court’s task as simply discerning the content of
liberty and the due process which protected it, rather than drawing
on the Bill of Rights for the purpose of elaborating limits on
Id. at 89.
Palko v. Connecticut, 302 U.S. 319, 328 (1937) (quoting Hebert v. Louisiana, 272 U.S.
312, 316 (1926)).
101 The first success of the selective incorporation approach was Gitlow v. New York, 268
U.S. 652, 666 (1925) (freedom of speech). This was followed by Near v. Minnesota, 283 U.S.
697, 707 (1931) (freedom of the press); DeJonge v. Oregon, 299 U.S. 353, 364 (1937) (freedom
of assembly); Hague v. CIO, 307 U.S. 496, 513 (1939) (freedom of petition); and Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940) (freedom from establishment of religion).
102 See Malloy v. Hogan, 378 U.S. 1, 16–17, 24 (1964) (Harlan, J., dissenting).
99
100
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government power.103 But that distinctive position was contrary to
Justice Black’s view as set out in his Adamson dissent.104 In 1968,
Justices Black and Harlan clashed in Duncan v. Louisiana,105
another case involving the question of incorporation.106 Duncan
held that the right to jury trial was incorporated under the Due
Process Clause of the Fourteenth Amendment and was thus a limit
on the states.107 Justice White, writing for the Court, took note of
the fact that
[i]n resolving conflicting claims concerning the meaning of
[the] spacious language [of the Due Process Clause of the
Fourteenth Amendment], the Court has looked increasingly
to the Bill of Rights for guidance; many of the rights
guaranteed by the first eight Amendments to the
Constitution have been held to be protected against state
action by the Due Process Clause of the Fourteenth
Amendment.108
Justice White then set out the standard for determining which
guarantees of the Bill of Rights were so incorporated in the
following words:
The test for determining whether a right [specified in the
Bill of Rights] . . . is also protected against state action by
the Fourteenth Amendment has been phrased in a variety of
ways in the opinions of this Court. The question has been
asked whether a right is among those “‘fundamental
principles of liberty and justice which lie at the base of all
our civil and political institutions.’”109
103 See id. at 24. Justice Harlan’s most famous and elaborated statement of this view is
found in his opinion in Poe v. Ullman, 367 U.S. 497, 541–43 (1961) (Harlan, J., dissenting).
104 Adamson v. California, 332 U.S. 46, 89 (1947) (Black, J., dissenting) (stating his
preference for a total incorporation of the Bill of Rights). Harlan’s aversion to any form of
incorporation is set out in Duncan v. Louisiana, 391 U.S. 145, 172–73 (1968) (Harlan, J.,
dissenting).
105 391 U.S. 145.
106 The petitioner in Duncan claimed that the Sixth Amendment right to jury trial
qualifies as a fundamental right protected against state action by the Fourteenth
Amendment. Id. at 149.
107 Id. at 156 (holding that “[t]he deep commitment of the Nation to the right of jury
trial . . . qualifies for protection under the Due Process Clause of the Fourteenth Amendment,
and must therefore be respected by the States”).
108 Id. at 147–48.
109 Id. at 148 (quoting Powell v. Alabama, 287 U.S. 45, 67 (1932)). This identical language,
which has appeared in many opinions stretching back in constitutional history, is quoted in
Palko as noted above. See supra note 9. In Palko, Justice Cardozo cites Hebert v. Louisiana,
the original source for this quotation. Palko v. Connecticut, 302 U.S. 319, 325 (1937) (citing
Herbert v. Louisiana, 272 U.S. 312, 316 (1926)).
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Justice Harlan vigorously dissented from the result as well as
from the rationale offered by Justice White’s majority opinion and
the concurrence by Justice Black, in which Black reiterates his view
on total incorporation as set out in his Adamson dissent.110 Justice
Harlan argued that “the first section of the Fourteenth Amendment
was meant neither to incorporate, nor to be limited to, the specific
guarantees of the first eight Amendments.”111 In making this
argument, Justice Harlan cites to a law review article by Charles
Fairman that criticized Justice Black’s historical appendix in his
Adamson dissent.112 Justice Harlan then goes on to say that
“neither history, nor sense, supports using the Fourteenth
Amendment to put the States in a constitutional straitjacket with
respect to their own development in the administration of criminal
or civil law.”113 And then, in a reference to the total incorporation
approach of Justice Black, as well as Justice Black’s concurrence in
Duncan, Justice Harlan says:
I can see only one method of analysis that has any internal
logic. That is to start with the words “liberty” and “due
process of law” and attempt to define them in a way that
accords with American traditions and our system of
government.
This approach, involving a much more
discriminating process of adjudication than does
“incorporation,” is, albeit difficult, the one that was followed
throughout the 19th and most of the present century. It
entails a “gradual process of judicial inclusion and
exclusion,” seeking, with due recognition of constitutional
tolerance for state experimentation and disparity, to
ascertain those “immutable principles . . . of justice which
inhere in the very idea of free government which no member
of the Union may disregard.”
....
. . . [D]ue process is an evolving concept and
....
. . . old principles are subject to re-evaluation in light of
later experience . . . .114
See Duncan, 391 U.S. at 172–73 (Harlan, J., dissenting).
Id. at 174.
112 Id. at 174 n.9; Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of
Rights? The Original Understanding, 2 STAN. L. REV. 5, 65–66, 78–80 (1949).
113 Duncan, 391 U.S. at 175–76 (Harlan, J., dissenting).
114 Id. at 176, 183 (quoting Davidson v. New Orleans, 96 U.S. 97, 104 (1877); Holden v.
Hardy, 169 U.S. 366, 389 (1989)) (footnotes omitted).
110
111
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In so characterizing due process as an “evolving concept,” Justice
Harlan is making reference here to his view, first set out in his
dissent in Poe v. Ullman,115 that the constitution is a “living
thing.”116 This position engenders considerable controversy in
implied fundamental rights cases brought under the Due Process
Clause of the Fourteenth Amendment today as we shall see.117
In taking this position in Duncan in the incorporation debate,
Justice Harlan is consistent with the approach he took in the
substantive due process debate that emerged with Griswold three
years earlier.118 Indeed, the question of incorporation, to the extent
he addresses it, is the same as the question of the extent to which
the Due Process Clause of the Fourteenth Amendment offers
substantive protection for implicit fundamental rights, and if so,
how to go about discerning those rights as a matter of constitutional
law.119 Rather than seeking incorporation, Justice Harlan in effect
sees all of these cases as being similar to such substantive issues as
whether due process protects “privacy” as an implied fundamental
right in the case of state regulation of contraception.120 Harlan’s
opinion then, whether one agrees with his approach or not, makes
clear that the question faced in the incorporation cases and faced in
implied fundamental rights cases as due process questions, involve
the same issues of source, content, and interpretive approach in the
application of the Due Process Clause.121
Justice Cardozo’s opinion in Snyder came as the Due Process
Clauses of the Fifth and Fourteenth Amendments, embraced by the
Court under Lochner as sources of protection for economic liberty,
were coming under serious attack.122 By the time of Justice
Cardozo’s opinion three years later in Palko, substantive due
process as a source of protection for economic liberty had grown
367 U.S. 497 (1961).
Id. at 542 (Harlan, J., dissenting).
117 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 790–91 (1997) (Breyer, J.,
concurring) (discussing Justice Harlan’s dissenting opinion in Poe); Planned Parenthood of
Se. Pa. v. Casey, 505 U.S. 833, 848–50 (1992) (discussing Justice Harlan’s dissenting opinion
in Poe).
118 See Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring).
119 Id.
120 See id.; Poe, 367 U.S. at 548.
121 Compare Poe, 367 U.S. at 542–43 (discussing whether privacy is a fundamental aspect
of liberty), and Griswold, 381 U.S. at 500–01 (whether privacy is a basic value implicit in
liberty), with Duncan v. Louisiana, 391 U.S. 145, 171–73 (1968) (Harlan, J., dissenting)
(discussing whether jury trial is a necessary element of fundamental procedural fairness).
122 In early 1937, following his landside victory in the 1936 election, President Franklin
Roosevelt proposed his plan to change the composition of the Court. Later that same year,
the Court changed direction. See supra text accompanying notes 58 and 59.
115
116
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even weaker and was making its exit from the Court.123 The year of
Palko, 1937, also saw the decision in NLRB v. Jones and Laughlin
Corp.,124 in which the Court held that the idea of what constituted
“commerce” would no longer be defined narrowly to curb the power
of Congress to regulate interstate commerce.125 Then in 1938, the
year of Justice Cardozo’s death, Lochner’s death was confirmed in
United States v. Carolene Products Co.126 The abandonment of the
Lochner approach to economic regulation by government was now
complete. Chief Justice Stone summarized the new approach:
[T]he existence of facts supporting the legislative judgment
is to be presumed, for regulatory legislation affecting
ordinary commercial transactions is not to be pronounced
unconstitutional unless in the light of the facts made known
or generally assumed it is of such a character as to preclude
the assumption that it rests upon some rational basis within
the knowledge and experience of the legislators . . . . [B]y
their very nature such inquiries, where the legislative
judgment is drawn in question, must be restricted to the
issue whether any state of facts either known or which could
reasonably be assumed affords support for it. Here . . . it is
evident from all the considerations presented to Congress,
and those of which we may take judicial notice, that the
question is at least debatable whether commerce in filled
milk should be left unregulated, or in some measure
restricted, or wholly prohibited. As that decision was for
Congress, neither the finding of a court arrived at by
weighing the evidence, nor the verdict of a jury can be
substituted for it.127
Carolene Products made clear that the two forms of attack on
government regulation of economic liberty made during the laissezfaire period—namely the limit of congressional power through the
restricted meaning of “commerce” under the interstate commerce
123 See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 386, 388, 400 (1937) (upholding a
state law setting the minimum wage for women and children); Nebbia v. New York, 291 U.S.
502, 515, 539 (1934) (holding that it was not a violation of due process for a state to fix the
price at which milk could be sold).
124 301 U.S. 1 (1937).
125 Id. at 31, 37.
126 304 U.S. 144, 152, 154 (1938).
127 Id. at 152, 154 (footnote omitted). Carolene Products was decided on April 25, 1938,
after Justice Cardozo had become ill in December 1937 with what was to be his last illness.
Justice Cardozo had taken ill almost immediately after his Palko decision was handed down
on December 6, 1937. His last opinion for the Court came seven days later on December 13,
1937 and he died on July 9, 1938. KAUFMAN, supra note 1, at 566–67.
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clause, in conjunction with the power reserved in the states under
the Tenth Amendment, and the protection of economic liberty as a
matter of substantive due process under the Fifth and Fourteenth
Amendments—would no longer hold sway in cases filed to protect
economic liberty.128 The abandonment of Lochner was dramatically
reaffirmed three years after Carolene Products in United States v.
Darby when the Court overruled Hammer v. Dagenhart129 and
embraced an expansive view of the interstate commerce power of
Congress.130 With the announcement of the “substantial effect” test
in Darby as the basis for extension of interstate commerce power
into the realm of local activity typically reserved to the States,131
and the earlier confirmation in Carolene Products that due process
would no longer be viewed as a limit on government regulation of
economic activity,132 the twin bases for attack on government
regulation of economic activity that were the staple of the Lochner
era disappeared. But the potential for employing the Lochner
approach to substantive due process for the protection of noneconomic, implied fundamental rights remained, as noted by Justice
Stone in footnote four of his opinion in Carolene Products.133
Economic liberty in the post-Lochner era has remained moribund
up to the present day. Substantive due process in non-economic
liberty cases, however, has been upheld, as well as roundly
criticized, as the textual source of controversial rights in the five
areas discussed below. Today, substantive due process has clearly
re-emerged to protect non-economic liberty, and the tests for and
application of fundamental rights doctrine under due process and
equal protection are virtually indistinguishable from one another.134
In what follows, we shall focus on substantive due process and the
interpretive debate that surrounds what we may call the “Second
Carolene Prods., 304 U.S. at 147–48.
247 U.S. 251, 276–77 (1918) (holding that Congress did not have the power to regulate
the age of factory workers solely because the goods manufactured entered interstate
commerce), overruled by United States v. Darby, 312 U.S. 100 (1941).
130 Darby, 312 U.S. at 108, 116–17, 119 (holding that Congress could prohibit goods from
entering interstate commerce when the factory employees made less than minimum wage and
worked more than the prescribed maximum because this practice had a substantial effect on
interstate commerce).
131 See id. at 119 (“[I]t does not follow that Congress may not by appropriate legislation
regulate intrastate activities where they have a substantial effect on interstate commerce.”).
132 See Carolene Prods., 304 U.S. at 148 (upholding against due process attack a state law
forbidding the sale and manufacturing of skim milk mixed with coconut oil in order to
resemble milk or cream).
133 See infra notes 142–48 and accompanying text.
134 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 763 (2d ed.
2002).
128
129
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Era of Substantive Due Process.”135 Justice Cardozo’s formulation
of due process in Palko136 has come to figure prominently in today’s
ongoing debate today about the scope and substance of the
fundamental rights doctrine in the case of non-economic
unenumerated rights.137 This result is based in part on the stature
of Justice Cardozo and his way of writing in a historical context,
both of which have been a benefit to the twenty-first century
conversation about the substantive content of due process. In sum,
the idea, and thus the controversy over the content of fundamental
rights as a constitutional doctrine of the Lochner era, has been
carried forward to our day, and Justice Cardozo’s theme now often
defines our debate in substantive due process cases addressing noneconomic unenumerated rights.138 That debate is no more settled
today than it was at the height of the incorporation debate of his
time.139
III. VARIATIONS ON THE THEME FROM CARDOZO: TEN LEADING
CASES ON SUBSTANTIVE DUE PROCESS (1965–2005) AS EVIDENCE OF
THE ROLE OF CHOICE IN CONSTITUTIONAL DECISION-MAKING
With the collapse of Lochner and the death of Cardozo, one might
have expected that his theme from Palko, written as a contribution
to the incorporation debate, would fade into the past as the selective
incorporation doctrine became solidified in the years that followed.
But that was not to be the case. While economic substantive due
135 PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING
946 (3d ed. 1992) (including “The Birth of the Second Era of Substantive Due Process” within
a section of the casebook titled Methods of Fundamental Rights Adjudication).
136 Palko v. Connecticut, 302 U.S. 319, 324–26 (1937).
137 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (physician-assisted
suicide); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 951 (1992) (Rehnquist, C.J.,
concurring in part and dissenting in part) (regulation of abortion decision process); Cruzan v.
Dir., Mo. Dep’t of Health, 497 U.S. 261, 341–42 (1990) (Stevens, J., dissenting) (procedural
requirements for termination of life support); Griswold v. Connecticut, 381 U.S. 479, 500
(1965) (Harlan, J., concurring) (access to contraceptive information).
138 See, e.g., Troxel v. Granville, 530 U.S. 57, 100 (2000) (Kennedy, J., dissenting)
(upholding parent’s right to control upbringing of her child); Bowers v. Hardwick, 478 U.S.
186, 191–92 (1986) (upholding a state law prohibiting law consensual sodomy), overruled by
Lawrence v. Texas, 539 U.S. 558, 578 (2003) (invalidating a statute that prohibited sexual
conduct between same-sex partners); Roe v. Wade, 410 U.S. 113, 152 (1973) (holding that the
right of privacy protects a woman’s decision to terminate her pregnancy).
139 See supra text accompanying notes 60–87. See also Liggett Co. v. Baldridge, 278 U.S.
105, 111–13 (1928) (striking down as an unconstitutional limitation on private behavior a
Pennsylvania legislative act prohibiting proprietary interest in pharmacy by persons not
licensed as pharmacists); Jacobsen v. Massachusetts, 197 U.S. 11, 31 (1905) (upholding
Massachusetts legislative act establishing compulsory vaccination for small pox because it
violated no fundamental rights).
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process associated with the Lochner era has been waning since the
late 1930s, in the last forty years fundamental rights have reemerged as an expression of substantive due process in noneconomic cases, including those involving unenumerated rights.140
Justice Cardozo’s theme from Palko has been cited prominently in
many of the opinions in these cases. A careful examination of these
opinions reveal the “primacy of choice” over analogical reasoning in
the diverse efforts of various justices to draw upon Justice Cardozo’s
Palko opinion as precedential authority in the continued search for
the source and content of substantive due process in implied
fundamental rights non-economic cases.141 The backdrop to this
development is set down in Chief Justice Stone’s famous footnote
four in Carolene Products.142 Footnote four signaled the possibility
that, despite the apparent collapse of the Lochner approach,
something akin to it might nevertheless continue to serve as a limit
on congressional power in order to protect certain non-economic
liberties of the people:
There may be narrower scope for operation of the
presumption of constitutionality when legislation appears on
its face to be within a specific prohibition of the
Constitution. . . .
[Or in the case of] legislation which restricts those political
processes which can ordinarily be expected to bring about
repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general prohibitions of
the Fourteenth Amendment than are most other types of
legislation. . . .
[Moreover,] whether similar considerations enter into the
review of statutes directed at particular . . . minorities. . . .
[or] whether prejudice against discrete and insular
minorities may be a special condition, which tends seriously
140 See Troxel, 530 U.S. at 66 (holding that parents have a fundamental right to “make
decisions concerning the care, custody, and control of their children”); Glucksberg, 521 U.S. at
705–06 (finding there is not a fundamental right to commit suicide); Casey, 505 U.S. at 846
(reaffirming the holding that women have a right to choose to have an abortion); Cruzan, 497
U.S. at 278, 282 (stating that “a competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment” however, a state can require clear and
convincing evidence of a desire to exercise this right when the person is incompetent); Bowers,
478 U.S. at 192 (stating that participation in homosexual sodomy is not a fundamental right).
141 See Glucksberg, 521 U.S. at 720–21; Casey, 505 U.S. at 951 (Rehnquist, C.J., concurring
in part and dissenting in part); Cruzan, 497 U.S. at 341 (Stevens, J., dissenting).
142 United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (upholding a state
law forbidding the sale and manufacturing of skim milk mixed with coconut oil in order to
resemble milk or cream).
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to curtail the operation of those political processes ordinarily
to be relied upon to protect minorities, and which may call
for a correspondingly more searching judicial inquiry.143
In the early years after Carolene Products, substantive due
process seemed to have been thoroughly limited, if not outrightly
repudiated, as a textual source of fundamental rights.144 For a time,
fundamental rights even seemed destined to disappear.145 But
Chief Justice Stone’s footnote four was soon to provide new life for
the fundamental rights doctrine. Creative lawyers who sought
protection for certain unenumerated non-economic rights turned
first to the Equal Protection Clause of the Fourteenth Amendment,
avoiding the due process approach of the now “discredited” Lochner
era.146 As we shall see, however, Lochner itself was not completely
dead. Two cases decided during the heyday of economic substantive
due process and employing the Lochner approach147 continued to be
cited as precedential authority by the Court during the second era
of substantive due process that fully developed in the 1960s.148
A. The Rise of Substantive Due Process from the Ashes of Lochner
The rise of substantive due process out of the ashes of Lochner as
a source of protection for implied fundamental rights began with
Griswold v. Connecticut in 1965. Griswold involved the claim of
protection for the right of married couples to have access to
contraceptive information as an aspect of their “marital privacy.”149
Its holding opened up “privacy” as an implied fundamental right,
thus embracing the promise of Justice Stone’s footnote four in
Carolene Products that there might be some heightened protection
for implied fundamental rights of a non-economic nature under the
Due Process Clause.150 While the decision in Griswold began a new
Id.
Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955).
145 See, e.g., id. (citing several cases which declined to take the fundamental rights
approach).
146 After the decline of Lochner, the Court provided protection for fundamental rights
under equal protection, rather than substantive due process. See, e.g., Skinner v. Oklahoma,
316 U.S. 535, 541 (1912) (right to procreate); Griffin v. Douglas, 311 U.S. 12, 18–19 (1956)
(right of indigent to a free transcript in an appeal).
147 See Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S.
390, 399 (1923). These two cases address the right of parents to control the upbringing of
their children.
148 See, e.g., infra Part III.B.3.
149 Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (Goldberg, J., concurring).
150 Id. at 491–92 (Goldberg, J., concurring); United States v. Carolene Prods. Co., 304 U.S.
144, 152–52 (1938).
143
144
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era in 1965—the so-called second era of substantive due process—
Duncan, decided in 1968, closed another era—the era of debate over
incorporation that had raged since Slaughter House in 1873.151 It is
notable that in both of these cases, Justice Cardozo’s theme from
Palko was drawn upon by the Court to accomplish the changes in
constitutional doctrine for which they are known today.152
Since Griswold, substantive due process has re-appeared in many
opinions no less controversial than those written during the Lochner
era.153
The controversy swirls around the three familiar
interrelated questions concerning the source, content, and
interpretive approach to be taken in the search for implied
fundamental rights that we have been concerned with throughout
this Article.154 What has wide agreement in this controversy today
is the idea that fundamental rights are not exhausted by the list of
explicit rights set out in the Bill of Rights.155 What are vigorously
debated are the identity, source, and content of those rights that are
implied and which interpretive approach is legitimate in
elaborating such rights from the constitutional text.156 In more
recent years the debate has become more complex as the Court has
begun to talk about a category of “liberty interests” protected by the
Due Process Clause that is entitled to some form of heightened
scrutiny, which is less than strict scrutiny and greater than
traditional scrutiny.157
Griswold is a prime example of the
controversy for it spawned six opinions that give evidence of the
many voices engaged in the interpretive debate that surrounds due
Duncan v. Louisiana, 391 U.S. 145, 171 (1968) (Black, J., concurring).
Id. at 155; Griswold, 381 U.S. at 500 (Harlan, J., concurring).
153 See, e.g., Bowers v. Hardwick, 478 U.S. 186, 194–96 (1986) (upholding criminality of
consensual homosexual sodomy); Roe v. Wade, 410 U.S. 113, 154 (1973) (holding that the
right of privacy encompasses the decision to terminate pregnancy); Eisenstadt v. Baird, 405
U.S. 438, 453–54 (1972) (recognizing equal right to privacy in obtaining contraceptives for
unmarried individuals as for married couples); Loving v. Virginia, 388 U.S. 1, 12 (1967)
(invalidating a statutorial ban on interracial marriage). Compare Roe, 410 U.S. at 154, with
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278–291 (1990) (recognizing a fundamental
liberty interest in refusing medical treatment).
154 See Griswold, 381 U.S. at 484.
155 This agreement is evident in the opinions discussed in Part II.B.1–5, despite the
differences between the justices on the scope of these rights or how to derive them as a matter
of interpretation of the Constitutional text. See also Stanley H. Friedelbaum, Reassessing
Family Relations Law: Issues and Inquiries in the State Courts, 68 ALB. L. REV. 225, 227
(2005).
156 This is most clearly observed in the continuing debate since Griswold on whether
privacy is a right recognized by the Constitution.
157 The leading example is Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 915
(1992) (Stevens, J., concurring in part and dissenting in part). See also Stenberg v. Carhart,
530 U.S. 914, 970 (2000) (Kennedy, J., dissenting).
151
152
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process today.158 Indeed, in retrospect we can see that this
interpretive controversy was already present in the incorporation
debate of the first half of the twentieth century in a way that prefigures many of the arguments made by the various opinions found
in Griswold and other substantive due process cases since then. It
is a careful analysis of that phenomenon and the role of judicial
choice that is at the core of various proposals to resolve the
controversy that we now turn to in the section that follows.
B. Choice in Constitutional Analysis and Argument: The Evidence
from Substantive Due Process Cases
The “variations” on Justice Cardozo’s theme that have emerged in
the work of the Court in the forty years since the decision in
Griswold v. Connecticut proceed from, and express, a core choice by
the justice writing the opinion, of whether and how Cardozo’s Palko
theme will be drawn on as precedential authority.159 In looking at
this phenomenon closely, we shall see something important about
how the role of judicial choice on the interpretive possibilities for
approaching the text of the Constitution in due process cases
necessarily precedes and thus sets the stage for analogical
argument from previous cases.
The primacy of choice over
analogical argument is also illustrated with respect to precedent
alone as a source of law. Without the choice to orient the speaker
concerning how precedent—that is, the past—shall be drawn upon
and used for present decision-making, analogical argument is
unmoored from the outset of judicial decision-making. Thus,
analogical argument, which is so much the stock-in-trade of the
common law lawyer—including those lawyers who bring the habits
of mind of the common law lawyer to the task of constitutional
arguments—proceeds from a choice on the questions of source,
content, and interpretive approach to the source of authority on
which it relies in the course of making the analogical argument
itself. Without the exercise of these choices prior to addressing the
158 In Griswold Justice Douglas offered his view that there is a “penumbra” of
unenumerated rights “emanating” from the Bill of Rights. Griswold, 381 U.S. at 484. In
separate concurrences and dissents his colleagues offered the following views: Ninth
Amendment as a source of rights, id. at 486–87 (Goldberg, J., concurring); substantive due
process as a source of rights, id. at 500 (Harlan, J., concurring); rationale for the state law did
not even meet the rational basis test, id at 502 (White, J., concurring); Constitution does not
provide protection for unenumerated rights id. at 508 (Black, J., dissenting); and the lack of
any textual statement in the Constitution protecting privacy, id. at 530 (Stewart, J.,
dissenting).
159 See discussion infra Parts III.B.1 to III.B.5.
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merits of the case, there is no analogy to be drawn from past cases.
It is precisely this fact of legal reasoning that is rarely mentioned in
the law school classroom. Instead, the often all-consuming focus of
law study is on the important secondary task of analogical
argument in the application of the received rules of law. This
practice then becomes a source of deep confusion for the law student
who is mainlining on the lawyer’s heroin of the quest for
determinative black-letter rules. Black-letter rules can, of course,
be formulated, and there is a huge market for the work of treatise
writers and bar examination outline writers who do so. But none of
these fully disclose that the decision to apply a particular blackletter rule in a particular way is not simply a matter of analogical
argument from precedent. It involves a more basic form of
interpretive choice that takes place prior to the analogical
deployment of rules. To see it as the task of persuasion—it is a
specialized form of practical reasoning that employs the vocabulary
of law and its conventions of argument—reveals that it is more
properly thought of as a rhetorical art.
In speaking of “variations on a theme from Cardozo” as “choices”
employed by the lawyer as rhetor engaged in practical reasoning, I
refer to four phenomena that can be observed in the use to which
several judges put Cardozo’s theme in the cases we shall survey.
These variations in formulation and application of Cardozo’s theme
reveal the choices made, and the reasons, or lack thereof, for the
creative appropriation made by other justices of Cardozo’s theme, as
well as the critical limitations the theme presents in providing a
basis for due process decision making. These choices can include
the following: (1) adoption of the theme as precedent for finding or
rejecting new fundamental rights; (2) slight changes in phrasing to
the point of paraphrase that can alter the meaning in applying the
theme; (3) criticism of the expansive application of the theme by
other justices; and (4) silence which in the past may have been
indicative of nothing more than the use of other doctrines for
deciding a case or, more recently, may portend the ultimate decline
and disappearance of the theme from the Court’s work.160
160 In making this last observation, I do so with the recognition that this possibility is
present in Milton Konvitz’s otherwise triumphant discussion of the growth of fundamental
rights as a constitutional doctrine. See generally KONVITZ, supra note 18, at ix. (“[T]he most
significant and enduring development [in American constitutional law in the twentieth
century] has been the extension of the Bill of Rights to the States, the so-called ‘incorporation’
of the most important guarantees of the first eight Amendments into the Due Process Clause
of the Fourteenth Amendment, and the doctrine that there are rights that are so
‘fundamental’ that any restriction is subject to judicial ‘strict scrutiny.’ The process has
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The choices that judges make are illustrated in cases drawn from
five areas of great controversy in contemporary American life at the
dawn of the twenty-first century: (1) contraception;161 (2) abortion
decision-making;162 (3) family autonomy;163 (4) end of life decisionmaking;164 and (5) consensual sexual conduct between adults of the
same sex with all of the implications this has for the definition of
marriage under the law.165 We now turn to each of these areas for a
description of the variations on Justice Cardozo’s theme and the
choices these represent as they appear in the Court’s work on
substantive due process in the post-Lochner era.
1. Contraception: Griswold v. Connecticut (1965) and Eisenstadt v.
Baird (1972)
In Griswold v. Connecticut, the Court held that the interest of a
married couple to secure contraceptive information was protected as
an aspect of the fundamental right to privacy.166 This cannot be
found in the text of the Constitution. Thus, Griswold is a classic
example of implied fundamental rights protection in the postLochner era. The case produced six different opinions—one for the
Court, three concurrences and two dissents.167 Justice Douglas,
writing for the Court, made no reference to Cardozo’s theme.
Instead, he found that the marriage relationship was one which
could be said to be “lying within the zone of privacy created by
several fundamental constitutional guarantees.”168 This zone of
privacy, Douglas argued, could be derived from the specific
guarantees in the Bill of Rights that “have penumbras, formed by
emanations from those guarantees” that create this zone of
privacy.169 In Eisenstadt v. Baird, a successor to Griswold, the
Court came to view privacy as an individual right and extended the
right to receive contraceptive information to individuals, whether
nationalized fundamental rights and has given these rights a preferred dignity and
majesty.”).
161 See infra Part III.B.1.
162 See infra Part III.B.2.
163 See infra Part III.B.3.
164 See infra Part III.B.4.
165 See infra Part III.B.5.
166 Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
167 Id. at 480 (majority opinion); id. at 486 (Goldberg, J., concurring); id. at 499 (Harlan, J.,
concurring in judgment); id. at 502 (White, J., concurring in judgment); id. at 507 (Black, J.,
dissenting); id. at 527 (Stewart, J., dissenting).
168 Id. at 485 (majority opinion).
169 Id. at 484.
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married or not.170
In Griswold, Justice Goldberg’s concurrence found protection for
“marital privacy” in the language and history of the Ninth
Amendment.171 In doing so, he drew upon Justice Cardozo’s theme
to set up the test under the Ninth Amendment as one which
required the Court to determine whether the interest sought to be
protected was within the
“traditions and [collective] conscience of our people” to
determine whether a principle is “so rooted [there] . . . as to
be ranked as fundamental.” The inquiry is whether a right
involved “is of such a character that it cannot be denied
without violating those ‘fundamental principles of liberty
and justice which lie at the base of all our civil and political
institutions.’”172
Justice Harlan concurred, arguing that “the proper constitutional
inquiry . . . is whether [the state statute] infringes the Due Process
Clause of the Fourteenth Amendment because the enactment
violates basic values ‘implicit in the concept of ordered liberty’” and
cited Palko in doing so.173 He went on to incorporate his dissenting
opinion in Poe v. Ullman (1961) as his reasons for holding that the
interest at stake in Griswold was so protected.174 In Poe, Justice
Harlan wrote at length about his approach to Due Process Clause
claims in cases dealing with implicit fundamental rights.175 In
speaking of the protection offered under the Due Process Clauses of
both the Fifth and Fourteenth Amendments, Justice Harlan
famously wrote:
It is but a truism to say that this provision of both
Amendments is not self-explanatory. . . .
....
Due process has not been reduced to any formula; its
content cannot be determined by reference to any code. The
best that can be said is that through the course of this
Court’s decisions it has represented the balance which our
Nation, built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
Griswold, 381 U.S. at 486–87 (Goldberg, J., concurring).
172 Id. at 493 (alterations in original) (citation omitted).
173 Id. at 500 (Harlan, J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 325
(1937)).
174 Id. at 500.
175 See Poe v. Ullman, 367 U.S. 497, 541–43 (1961) (Harlan, J., dissenting).
170
171
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of organized society. If the supplying of content to this
Constitutional concept has of necessity been a rational
process, it certainly has not been one where judges have felt
free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by this
country, having regard to what history teaches are the
traditions from which it developed as well as the traditions
from which it broke. That tradition is a living thing. A
decision of this Court which radically departs from it could
not long survive, while a decision which builds on what has
survived is likely to be sound. No formula could serve as a
substitute, in this area, for judgment and restraint.
It is this outlook which has led the Court continuingly to
perceive distinctions in the imperative character of
Constitutional provisions, since that character must be
discerned from a particular provision’s larger context. And
inasmuch as this context is one not of words, but of history
and purposes, the full scope of the liberty guaranteed by the
Due Process Clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere provided
in the Constitution. This “liberty” is not a series of isolated
points pricked out in terms of the taking of property; the
freedom of speech, press, and religion; the right to keep and
bear arms; the freedom from unreasonable searches and
seizures; and so on. It is a rational continuum which,
broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints, and which
also recognizes, what a reasonable and sensitive judgment
must, that certain interests require particularly careful
scrutiny of the state needs asserted to justify their
abridgment.
....
Each new claim to Constitutional protection must be
considered against a background of Constitutional purposes,
as they have been rationally perceived and historically
developed.
Though we exercise limited and sharply
restrained judgment, yet there is no “mechanical yard-stick,”
no “mechanical answer.” The decision of an apparently novel
claim must depend on grounds which follow closely on wellaccepted principles and criteria. The new decision must take
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“its place in relation to what went before and further [cut] a
channel for what is to come.”176
Justice Harlan’s opinion in Griswold, incorporating this quotation
from his opinion in Poe, was the basis for his opinion in Duncan—
the incorporation case discussed above.177 In Griswold, as in
Duncan, Justice Black took sharp issue with Justice Harlan’s
approach to the Constitution as an evolving and “living thing.”178 A
comparison between the opinions of Justices Harlan and Black in
both Duncan and Griswold demonstrates how the debate over
incorporation, and substantive due process, both involve much of
the same ground.179 As we saw above, in Duncan, Justice Black had
reiterated the view he took twenty years earlier in Adamson in the
course of disagreeing with Justice Harlan in particular.180 In his
Griswold dissent, Justice Black sets out a similar view, taking on
Justice Harlan’s concurrence in particular in the same way he
disagrees with Justice Harlan three years later in Duncan.181 We
turn now to a close look at Justice Black’s dissent in Griswold.
Justice Black emphasized the importance of finding protection for
liberty in specific guarantees of the constitutional text.182 In this
respect, he echoed his view in favor of total incorporation as set out
in Adamson in 1947183 and repeated three years after Griswold by
him in Duncan.184 In doing so, he departed not only from Justice
Goldberg’s, Harlan’s, and White’s concurrences in Griswold, but
also from Justice Douglas’s opinion for the Court.185 In lumping
Id. at 540, 542–43, 544 (alterations in original) (citations omitted).
See supra text accompanying notes 105–17.
178 See Duncan v. Louisiana, 391 U.S. 145, 167, 168, 169 (1968) (Black, J., concurring);
Griswold v. Connecticut, 381 U.S. 479, 511–12 (1965) (Black, J., dissenting). In both of these
cases, Justice Black rejects going beyond the text of the Constitution to find protection for any
unenumerated rights. Duncan, 391 U.S. at 178; Griswold 381 U.S. at 512.
179 Adamson v. California, 332 U.S. 46, 69–70 (1947). Compare Duncan, 391 U.S. at 163,
165, 168–69 (Black, J., concurring), and Griswold, 381 U.S. at 510, 511, 520, 521 (Black, J.,
dissenting), with Duncan, 391 U.S. at 172, 175–76, 183 (Harlan, J., dissenting), and
Griswold, 381 U.S. at 500–502 (Harlan, J., concurring).
180 See supra text accompanying notes 90–99; Duncan, 391 U.S. at 163, 165, 167, 168, 169
(Black, J., concurring).
181 Compare Griswold, 381 U.S. at 511–12 (Black, J., dissenting), with Duncan, 391 U.S. at
168 (Black, J., concurring).
182 See Griswold, 381 U.S. at 511–13, 520–21 (Black J., dissenting).
183 Adamson, 332 U.S. at 71–72 (Black, J., dissenting).
184 Duncan, 391 U.S. at 166 (Black, J., concurring).
185 Compare Griswold, 381 U.S. at 509 (Black, J., dissenting) (favoring the use of specific
constitutional text), with id. at 485 (majority opinion) (explaining an inferred zone of privacy
created by the Constitution), id. at 486 (Goldberg, J., concurring) (explaining that “liberty”
protects rights not specifically listed in the Constitution), id. at 500 (Harlan, J., concurring)
(noting that laws can violate liberty guaranteed by the Constitution), and id. at 502 (White,
J., concurring) (noting that the law deprived the couple of liberty without due process).
176
177
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Justices Harlan and Goldberg together with Justice White (who
argued that the Connecticut law was wholly ineffective in
prohibiting illicit sexual relationships and thus was irrational as a
matter of due process186), Justice Black argued:
[that the approaches of these three justices] turn out to be
the same thing—merely using different words to claim for
this Court and the federal judiciary power to invalidate any
legislative act . . . it considers to be arbitrary, capricious,
unreasonable, or oppressive, or on this Court’s belief that a
particular state law under scrutiny has no “rational or
justifying” purpose, or is offensive to a “sense of fairness and
justice.” If these formulas based on “natural justice,” . . . are
to prevail, they require judges to determine what is or is not
constitutional on the basis of their own appraisal of what
laws are unwise or unnecessary . . . . I do not believe that we
are granted . . . the power to make laws . . . a power which
was specifically denied to federal courts by the convention
that framed the Constitution . . . .
[The Framers of the Constitution] knew the need for change
and provided for it. Amendments suggested by the people’s
elected representatives can be submitted to the people or
their selected agents for ratification. That method of change
was good for our Fathers, and being somewhat old-fashioned
I must add it is good enough for me.187
Justice Stewart, in a brief opinion, sounded a note somewhat
similar to Justice Black when he noted that he could not find
specific language on privacy in the Bill of Rights or elsewhere in the
Constitution.188
What is important here is not what is so often the focus in
discussion of Griswold in the law school classroom—”who got it
right?”—but rather the fact that each of these opinions turns on
choices about the meaning of the text and how it is to be approached
for the purpose of discerning that meaning. Note that this
question—how should we interpret the text in order to be faithful to
that text?—is not answered by the text itself. Thus, the interpretive
approach taken to the text, the rules found in previous decisions
construing the text in a particular way, and the question of whether
to even call on a particular case or opinion as precedent, are all
186
187
188
Id. at 505 (White, J., concurring).
Id. at 511–13, 522 (Black, J., dissenting).
Id. at 530 (Stewart, J., dissenting).
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choices.
This raises the difficult question of on what basis such choices are
to be made, and within what constraints, if any, can such choices be
attributed authoritatively to the text. Recall here Chief Justice
Marshall’s famous observation in McCulloch v. Maryland that “we
must never forget that it is a constitution that we are
expounding”189 thus summing up what he elsewhere in the same
opinion made reference to when he observed that the Constitution is
not a legal code, but rather a text that provides broad outlines of
governmental power and the individual rights which serve, among
other provisions, as prohibitions on those powers.190 The fact that
the constitutional text is not self-defining and that it does not set
out a preferred method of interpretation means that these choices
must be made by the Court. Whether the justices, in making such
choices, have recourse to history, structure, prudence, tradition, and
the collective conscience of the people, or immutable principles of
natural justice, the fact is that each choice is made for the purpose
of persuading other members of the Court, as well as the public,
that a particular choice of action that provides protection for an
interest as a fundamental right, or not, is a choice of action that
should be taken. In instances where Justice Cardozo’s Palko theme
is drawn upon in these opinions, we see several different choices
being made with respect to the questions set out above concerning
the use of text and precedent. For example, Justice Douglas does
not mention Justice Cardozo’s Palko theme at all191—does this mean
it is rejected or simply viewed as not applicable in the instant case?
On the other hand, Justice Goldberg embraces Justice Cardozo’s
theme in the course of discerning the meaning of the Ninth
Amendment, a purpose far different than when Justice Cardozo
first penned it in 1937.192 These choices, and the reasons given for
them (to the extent there are such reasons present in these opinions
beyond citing precedent), as I shall argue more fully below,193
involve the kind of persuasive effort in support of a particular choice
of action that is the very essence of practical reasoning. In
particular, these choices indicate constitutional arguments, as well
as legal arguments in general, are a special form of practical
reasoning that reveals the work of courts and lawyers who appear
189
190
191
192
193
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
Id. at 415.
Griswold v. Connecticut, 381 U.S. 479, 479–86 (1965) (Goldberg, J., concurring).
Id. at 486–87.
See infra Part IV and IV.A.
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before them as the practice of a rhetorical art.
Whether the justices who wrote these opinions would take that
view is probably doubtful given the great extent to which they went
to avoid being challenged as having embraced the discredited
Lochner approach.194 The Lochner approach is usually associated
with policy choice and judges see it as emblematic of the legislative
function outside the adjudicatory function courts perform.195 One
can argue that the range and scope of choice exercised by judges in
most cases is within a much smaller range than what one finds in
the realm of legislative activity.196 But that range itself is a choice
on the part of the judges for which reasons are required. One can
refer to this as a constraint that flows from a justice’s commitment
to exercise “judicial restraint” in making judicial choices to avoid
the imposition of one’s own values on cases that come before the
Court. But such a claim does not dislodge the fundamental
observation I have claimed throughout this Article, namely, that
choice is at the bottom of the judicial function and thus judicial
decision-making requires the giving of reasons like any other use of
practical reasoning if it is to accomplish its purpose of offering a
compelling argument that a particular choice of action among
several that are available should be taken and that the particular
choice advocated is faithful to the Constitution in whose name it is
being made.
2. Abortion Decision-making: Roe v. Wade (1973) and Planned
Parenthood v. Casey (1992)
The central role of choice in judicial decision-making that is on
display in Griswold is also present in the two leading cases on
abortion: Roe v. Wade,197 and Planned Parenthood of Southeastern
Pennsylvania v. Casey.198 In Roe, Justice Blackmun, writing for the
Court, found that a woman’s interest in making the decision on
whether to terminate her pregnancy is protected as an aspect of her
implied fundamental right of privacy.199 In doing so, Justice
Blackmun quotes Justice Cardozo’s theme as the basis for the
See Griswold, 381 U.S. at 514–16 (Black, J., dissenting).
An example is the practice of justices declaring that the Court does not sit as a “super
legislature.” Id. at 482. (opinion by Douglas, J.); see also note 298 and accompanying text.
196 See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 22–23, 84 (1977) (explaining that
judges make decisions based on principle, not policy).
197 Roe v. Wade, 410 U.S. 113 (1973).
198 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
199 Roe, 410 U.S. at 154.
194
195
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Court’s previous decisions when he says: “[t]hese decisions make it
clear that only personal rights that can be deemed ‘fundamental’ or
‘implicit in the concept of ordered liberty’ are included in this
guarantee of personal privacy.”200 The interest involved in Roe met
that test for Justice Blackmun.201
None of the other opinions in Roe or Doe v. Bolton, Roe’s
companion case (Justices Stewart, Burger, and Douglas each wrote
individual concurrences) mention Justice Cardozo’s theme;202 nor
does the dissent by Justice White.203 Justice Rehnquist’s dissent,
however, does cite the language in Justice Cardozo’s theme when he
says:
[t]he fact that a majority of the States reflecting, after all,
the majority sentiment in those States, have had restrictions
on abortions for at least a century is a strong indication, it
seems to me, that the asserted right to an abortion is not “so
rooted in the traditions and conscience of our people as to be
ranked as fundamental.”204
Once again we see the phenomenon of choice operating not only
with respect to whether Justice Cardozo’s theme will be employed,
but the way in which it is done. Justice Rehnquist’s choice to weave
it into his opinion is clearly for the purpose of holding that abortion
is not a fundamental right—even though the evolutional approach
to constitutional interpretation that accompanied Justice Cardozo’s
use of the phrase is one that Justice Rehnquist would explicitly
reject.205
Almost two decades after Roe, the Court considered its
application to conditions that states could place on abortion in
Casey. The plurality opinion by Justice O’Connor affirmed the
“essential holding of
Roe” but it dropped the language of
fundamental rights and changed the test to be applied from strict
scrutiny to that of prohibiting state imposed “undue interference”
that create “substantial obstacles” to what was now called a
200 Id. at 152 (citation omitted) (quoting Cardozo in Palko v. Connecticut, 302 U.S. 319, 325
(1937)).
201 See id. at 153.
202 See id. at 167–71 (Stewart, J., concurring); Doe v. Bolton, 410 U.S. 179, 207–08 (1973)
(Burger, J., concurring); id. at 209–21 (Douglas, J., concurring).
203 Bolton, 410 U.S. at 221–23 (White, J., dissenting).
204 Roe, 410 U.S. at 174 (Rehnquist, J., dissenting) (quoting Snyder v. Massachusetts, 291
U.S. 97, 105 (1934)).
205 See William H. Rehnquist, The Notion of a Living Constitution, 54 TEX L. REV. 693,
704–06 (1976) (acknowledging the “living” character of the Constitution but arguing for a
restricted scope of judicial discretion in contributing to the growth of the law through judicial
decision-making).
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protected liberty interest of a woman under the Due Process
Clause.206
In his dissent, Chief Justice Rehnquist once again embraced
Justice Cardozo’s theme when he wrote:
[w]e have held that a liberty interest protected under the
Due Process Clause of the Fourteenth Amendment will be
deemed fundamental if it is “implicit in the concept of
ordered liberty.”
Three years earlier, in Snyder v.
Massachusetts, 291 U.S. 97 (1934), we referred to a “principle
of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.” These expressions
are admittedly not precise, but our decisions implementing
this notion of “fundamental” rights do not afford any more
elaborate basis on which to base such a classification.
In construing the phrase “liberty” incorporated in the Due
Process Clause of the Fourteenth Amendment, we have
recognized that its meaning extends beyond freedom from
physical restraint. . . . But a reading of these opinions
makes clear that they do not endorse any all-encompassing
“right of privacy.”207
Justice Rehnquist further draws on Justice Cardozo’s theme
when he declares that he would hold that “the historical traditions
of the American people [do not] support the view that the right to
terminate one’s pregnancy is ‘fundamental.’”208
3. Family Autonomy: Moore v. City of East Cleveland and Michael
H. v. Gerald D.
It will come as no surprise by now for me to claim that the
phenomenon of choice concerning whether and how to apply Justice
Cardozo’s theme that we have seen operating in the areas of
incorporation, marital privacy, abortion, also appears in cases
involving the protection of family autonomy. Such decisions include
choosing foreign language study for one’s child 209 or sending that
child to a private school.210 Recall, in this connection, Justice
Blackmun’s assertion in Roe that the two cases involving these
kinds of family decisions, decided at the height of the Lochner Era,
206
207
208
209
210
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 845–46 (1992).
Id. at 951 (citations omitted).
Id. at 952.
Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
Pierce v. Soc’y of Sisters, 268 U.S. 510, 519 (1924).
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are examples of what he includes in a list that he gives of those
“personal rights that can be deemed ‘fundamental’ or ‘implicit in the
concept of ordered liberty,’ . . . [and] are included in th[e] guarantee
of personal privacy.”211 Thus, for Justice Blackmun, Meyer and
Pierce are among those cases that protect what might be called
family autonomy and illustrate the scope of Justice Cardozo’s
theme, even though they were decided over a decade before Palko.
Moore v. City of East Cleveland212 and Michael H. v. Gerald D.213
are two of the more recent cases that further elaborate the scope of
family autonomy. In both of these cases, Justice Cardozo’s theme
reappears once again.214 With such an embrace of Justice Cardozo’s
theme in the second era of due process, the continuing legacy of
Lochner is evident in those cases that involve non-economic implied
fundamental rights.215 To see this is to acknowledge that Lochner is
not as dead as it is often declared to be.
In time, the period leading up to Carolene Products became
known as the “era of economic substantive due process” because in
the 1960s the Court once again turned to the due process clauses to
provide substantive protection for individual liberty, this time
focusing on non-economic unenumerated rights as opposed to the
economic rights protected during the Lochner era.216
This
distinction between economic and non-economic due process is
important because non-economic unenumerated rights cases from
the Lochner era have been cited repeatedly as precedent,
notwithstanding the fact that the reasoning in these cases is hard to
distinguish from the abandoned precedent of the economic liberty
cases decided during the same time frame.217 Meyer is frequently
cited today as an example of fundamental rights protection for what
might be called “family autonomy” covering a range of choices
within the family from foreign language training for children to
other matters of child rearing.218 In the context of analyzing
Roe, 410 U.S. at 152 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
431 U.S. 494 (1977).
213 491 U.S. 110 (1989).
214 See id. at 121; Moore, 431 U.S. at 503.
215 See, e.g., Michael H., 491 U.S. at 123; Moore, 431 U.S. at 503.
216 See Brianne J. Gorod, Does Lochner Live?: The Disturbing Implications of Craigmiles v.
Giles, 21 YALE L. & POL’Y REV. 537, 539–40 (2003); Gregory C. Cook, Footnote 6: Justice
Scalia’s Attempt to Impose a Rule of Law on Substantive Due Process, 14 HARV. J.L. & PUB.
POL’Y 853, 855 (1991) (emphasis added) (stating specifically that the economic due process era
lasted until 1937).
217 See, e.g., Pierce Soc’y of Sisters, 268 U.S. 510, 519 (1924); Meyer v. Nebraska, 262 U.S.
390, 400 (1923).
218 E.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) (recognizing that parents have a
211
212
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fundamental rights, Meyer itself does not refer to the parents’ right
to choose German language instruction for their child, nor does
Meyer acknowledge the teacher’s right to teach German.219 Instead,
in language closely paralleling that which has been quoted earlier
from Lochner, Meyer applied a high level of scrutiny approaching
what is now called strict scrutiny:
The established doctrine is that this liberty may not be interfered
with, under the guise of protecting the public interest, by legislative
action which is arbitrary or without reasonable relation to some
purpose within the competency of the State to effect. Determination
by the legislature of what constitutes proper exercise of police power
is not final or conclusive but is subject to supervision by the
courts.220
The resonance between this language in Meyer and that of the
Lochner opinion is striking.
It is even more striking that
notwithstanding the Court’s continuing criticism of the Lochner
approach in the last forty years, the early non-economic substantive
due process cases dealing with unenumerated rights, such as Meyer
and Pierce, have been embraced and firmly woven into the
contemporary substantive due process doctrine. These cases both
exemplify the right to liberty in certain kinds of family decisionmaking and are seen as authoritative due to its continued citation.
In Moore, Justice Powell, writing for the Court, held that “the
Constitution prevents East Cleveland from standardizing its
children—and its adults—by forcing all to live in certain narrowly
defined family patterns” thus violating family autonomy to decide
how the family unit will be composed.221 In doing so, he quotes
Justice Harlan’s formulation in Poe and Griswold222 and then goes
on to make an apparent reference to Justice Cardozo’s theme when
he says that “the institution of the family is deeply rooted in this
Nation’s history and tradition.”223
Justices Stewart and White, both writing separately in dissent,
fundamental right to decide who may visit their children); Wisconsin v. Yoder, 406 U.S. 205,
214 (1972) (finding that “[the] State’s interest in universal education . . . is not totally free
from a balancing process when it impinges on fundamental rights and interest . . . and the
traditional interest of parents with respect to the religious upbringing of their children”).
219 See Meyer, 262 U.S. at 400 (referring to a parent’s right to give their children
“education suitable to their station in life”).
220 Id. at 399–400 (citing Lawton v. Steele, 152 U.S. 133, 137 (1894)).
221 431 U.S. at 506.
222 Id. at 501–02.
223 Id. at 503.
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quote Justice Cardozo’s theme.224
For Justice Stewart, the
Fourteenth Amendment
place[s] a substantive limitation on a State’s power to
regulate . . . in those rare cases in which the personal
interests at issue have been deemed “‘implicit in the concept
of ordered liberty.’” The interest . . . [of Mrs. Moore] in
permanently sharing a single kitchen and a suite of
contiguous rooms with some of her relatives simply does not
rise to that level.225
Justice White, in his dissent, quotes Justice Cardozo’s theme to
the following effect: “It would not be consistent with prior cases to
restrict the liberties protected by the Due Process Clause to those
fundamental interests ‘implicit in the concept of ordered liberty’ . . .
The term ‘liberty’ is not . . . to be given a crabbed construction.”226
But Justice White then goes on to say that in the absence of any
case extending due process protection to the interest advanced in
Moore, he would hold that “[t]he present claim is hardly one of
which it could be said that ‘neither liberty nor justice would exist if
[it] were sacrificed.’”227 In a further reference to Palko, Justice
White responds to Justice Powell’s use of Justice Cardozo’s theme in
the majority opinion:
Mr. Justice Powell would apparently construe the Due
Process Clause to protect from all but quite important state
regulatory interests any right or privilege that in his
estimate is deeply rooted in the country’s traditions. For me,
this suggests a far too expansive charter for this Court . . . .
What the deeply rooted traditions of the country are is
arguable; which of them deserve the protection of the Due
Process Clause is even more debatable. The suggested view
[by Justice Powell] would broaden enormously the horizons
of the Clause; and, if the interest involved here is any
measure of what the States would be forbidden to regulate,
the courts would be substantively weighing and very likely
invalidating a wide range of measures that Congress and
state legislatures think appropriate to respond to a changing
economic and social order.228
Id. at 537 (Stewart, J., dissenting).
Id.
226 Id. at 546–47 (White, J., dissenting) (quoting Palko v. Connecticut, 302 U.S. 319 325
(1937).
227 Id. at 549 (alteration in the original) (quoting Palko, 302 U.S. at 326).
228 Id. at 549–50.
224
225
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Justice White then suggests that he would uphold the ordinance
on what appears to be a lower level of scrutiny than that which
He does this after having
applies to fundamental rights.229
characterized the interest at stake as not rising to the level required
to be given the status of a fundamental right under Justice
Cardozo’s theme in Palko.230
In Michael H., the Court denied a biological father’s claimed
visitation right with his child, even though that child was conceived
as a result of the father’s non-marital affair with the mother.231 In
the course of writing a plurality opinion, Justice Scalia stated:
In an attempt to limit and guide interpretation of the [Due
Process] Clause, we have insisted not merely that the
interest denominated as a “liberty” be “fundamental” (a
concept that, in isolation, is hard to objectify), but also that it
be an interest traditionally protected by our society. As we
have put it, the Due Process Clause affords only those
protections “so rooted in the traditions and conscience of our
people as to be ranked as fundamental.” Our cases reflect
“continual insistence upon respect for the teachings of
history [and] solid recognition of the basic values that
underlie our society. . . .”232
....
. . . In fact . . . our traditions have protected the marital
family against the sort of claim Michael asserts . . . .
. . . Here, to provide protection to an adulterous natural
father is to deny protection to a marital father, and vice
versa.233
Justice Scalia makes clear that his approach to historical
tradition requires the specificity of a “particular, identifiable
tradition” rather than a more general understanding of tradition as
found in Justice Brennan’s dissenting opinion.234 It is striking that
Justice O’Connor notes her concurrence in all but Justice Scalia’s
narrow specification of the meaning of tradition as set out in
Id. at 551.
See id. at 549 (holding that the interest at stake is not one which requires “heightened
protection under the Due Process Clause”).
231 See Michael H. v. Gerald D., 491 U.S. 110, 130 (1989) (stating that “to provide
protection to an adulterous natural father is to deny protection to a marital father” (emphasis
in original)).
232 Id. at 122–23 (footnote omitted) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105
(1934) and Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring)).
233 Id. at 124, 130 (emphasis in original).
234 Id. at 127–28 & n.6.
229
230
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footnote six.235
She notes that “I would not foreclose the
unanticipated by the prior imposition of a single mode of historical
analysis.”236
Justice Brennan, in his dissent, takes issue with Justice Scalia’s
approach to historical tradition and notes:
Once we recognized that the “liberty” protected by the Due
Process Clause of the Fourteenth Amendment encompasses
more than freedom from bodily restraint, today’s plurality
opinion [by Justice Scalia] emphasizes, the concept was cut
loose from one natural limitation on its meaning. This
innovation paved the way, so the plurality hints, for judges
to substitute their own preferences for those of elected
officials. Dissatisfied with this supposedly unbridled and
uncertain state of affairs, the plurality casts about for
another limitation on the concept of liberty.
It finds this limitation in “tradition.” Apparently oblivious
to the fact that this concept can be as malleable and as
elusive as “liberty” itself, the plurality pretends that
tradition places a discernible border around the
Constitution.
The pretense is seductive; it would be
comforting to believe that a search for “tradition” involves
nothing more idiosyncratic or complicated than poring
through dusty volumes on American history. Yet, as Justice
White observed in his dissent in Moore v. City of East
Cleveland: “What the deeply rooted traditions of the country
are is arguable.” Indeed, wherever I would begin to look for
an interest “deeply rooted in the country’s traditions,” one
thing is certain: I would not stop (as does the plurality) at
Bracton, or Blackstone, or Kent, or even the American Law
Reports in conducting my search. Because reasonable people
can disagree about the content of particular traditions, and
because they can disagree even about which traditions are
relevant to the definition of “liberty,” the plurality has not
found the objective boundary that it seeks.
....
It is ironic that an approach so utterly dependent on
tradition is so indifferent to our precedents. . . . just as
common-law notions no longer define the “property” that the
Constitution protects . . . neither do they circumscribe the
235
236
Id. at 132 (O’Connor, J., concurring).
Id.
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“liberty” that it guarantees. On the contrary, “‘[l]iberty’ and
‘property’ are broad and majestic terms. They are among the
‘[g]reat [constitutional] concepts . . . purposely left to gather
meaning from experience. . . . [T]hey relate to the whole
domain of social and economic fact, and the statesmen who
founded this Nation knew too well that only a stagnant
society remains unchanged.’”237
In the foregoing cases involving family autonomy, once again we
see the variety of choices made by justices as they differ on how to
interpret and apply “tradition” as a source of authority embraced
within Justice Cardozo’s theme.
4. End of Life Decision-making: Cruzan v. Missouri and
Washington v. Glucksberg
In Cruzan v. Missouri,238 the Court upheld a state requirement
for the civil standard of “clear and convincing evidence” in hearings
to determine whether a patient in a persistent vegetative state
without a living will wished to refuse treatment.239 In doing so, the
Court, speaking through an opinion by Chief Justice Rehnquist,
made no reference to Justice Cardozo’s theme when it characterized
the patient’s interest as a “liberty interest” rather than as a
“fundamental right.”240
Subsequently, in Washington v. Glucksberg, the Court upheld
Washington’s prohibition on physician-assisted suicide under a
Fourteenth Amendment challenge.241 In reaching this result, Chief
Justice Rehnquist’s opinion for the Court made reference to Justice
Cardozo’s theme as follows:
Our established method of substantive-due-process
analysis has two primary features: First, we have regularly
observed that the Due Process Clause specially protects
those fundamental rights and liberties which are, objectively,
“deeply rooted in this Nation’s history and tradition” [or] . . .
“so rooted in the traditions and conscience of our people as to
be ranked as fundamental” . . . and “implicit in the concept of
ordered liberty,” such that “neither liberty nor justice would
237 Id. at 137–38 (Brennan, J., dissenting) (citations omitted) (quoting Bd. of Regents v.
Roth, 408 U.S. 564, 571 (1972)).
238 497 U.S. 261 (1990).
239 Id. at 284.
240 Id. at 278–79.
241 521 U.S. 702, 728 (1997).
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exist if they were sacrificed.” Second, we have required in
substantive-due-process cases a “careful description” of the
asserted fundamental liberty interest. Our Nation’s history,
legal traditions, and practices thus provide the crucial
“guideposts for responsible decision-making” that direct and
restrain our exposition of the Due Process Clause. . . .
. . . [T]he development of this Court’s substantive-dueprocess jurisprudence . . . has been a process whereby the
outlines of the “liberty” specially protected by the Fourteenth
Amendment—never fully clarified, to be sure, and perhaps
not capable of being fully clarified—have at least been
carefully
refined
by
concrete
examples
involving
fundamental rights found to be deeply rooted in our legal
tradition. This approach tends to rein in the subjective
elements that are necessarily present in due process judicial
review.242
The opinion goes on to hold that assisted suicide is not deeply
rooted in the Nation’s traditions and that the ban by Washington is
rationally related to a legitimate governmental interest.243
Justice Souter, in a long concurring opinion, offers a historical
survey of substantive due process in which he claims that tradition
plays an important role, similar to the way that Justice Harlan first
outlined the tradition in his Poe dissent, by making frequent
reference to Justice Cardozo’s theme as distinctively understood.244
5. Consensual Sexual Conduct Between Same-sex Adults: Bowers v.
Hardwick and Lawrence v. Texas
The Court in Bowers v. Hardwick, speaking through an opinion
by Justice White, held that consensual sexual conduct between
adults of the same sex was not a fundamental right.245 It reached
this result after applying Justice Cardozo’s theme in the following
passage:
Striving to assure itself and the public that announcing
rights not readily identifiable in the Constitution’s text
involves much more than the imposition of the Justices’ own
choice of values on the States and the Federal Government,
Id. at 720–22 (citations omitted).
Id. at 728.
244 Id. at 762–71, 73 (Souter, J., concurring).
245 478 U.S. 186, 191 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 578 (2003)
(upholding right to consensual sexual conduct between same-sex partners).
242
243
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the Court has sought to identify the nature of the rights
qualifying for heightened judicial protection. In Palko v.
Connecticut, it was said that this category includes those
fundamental liberties that are “implicit in the concept of
ordered liberty,” such that “neither liberty nor justice would
exist if [they] were sacrificed.” A different description of
fundamental liberties appeared in Moore v. East Cleveland,
where they are characterized as those liberties that are
“deeply rooted in this Nation’s history and tradition.”
It is obvious to us that neither of these formulations would
extend a fundamental right to homosexuals to engage in acts
of consensual sodomy. Proscriptions against that conduct
have ancient roots. . . . Against this background, to claim
that a right to engage in such conduct is “deeply rooted in
this Nation’s history and tradition” or “implicit in the
concept of ordered liberty” is, at best, facetious.246
Reflecting on this passage in Justice White’s opinion, it is notable
that he mentions the two formulations as different even though
both are found in Justice Cardozo’s theme in Palko!247
Bowers was explicitly overruled seventeen years later in
Lawrence v. Texas.248 In his opinion for the Court, Justice Kennedy
takes up tradition as a source of authority for giving meaning to the
Due Process Clause.249 His opinion frames the issue as one
involving human dignity in preserving autonomy and choice that for
persons of the same sex is akin to that enjoyed by heterosexual
couples.250 For Justice Kennedy, the case involves the scope of
human dignity protected by the Due Process Clause, not a narrow
right to “homosexual sodomy” as Justice Scalia, in dissent, put it.251
In taking up tradition as a source of authority, Justice Kennedy
seems to acknowledge the formulations of Justice Cardozo’s theme,
even though he does not do so explicitly.
Justice Kennedy
comments that “American laws targeting same-sex couples did not
develop until the last third of the [twentieth] century” and thus,
“[the] historical premises [relied upon in Bowers] are not without
Id. at 191–92, 194 (citations omitted) (alterations in original).
See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (referring to liberties implicit in the
concept of ordered liberty and liberties rooted in history and tradition), overruled by Benton v.
Maryland, 395 U.S. 784, 794 (1969).
248 Lawrence, 539 U.S. at 578.
249 Id. at 572–73.
250 Id. at 574.
251 Id. at 586 (Scalia, J., dissenting).
246
247
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doubt and, at the very least, are overstated.”252 Continuing his
consideration of what tradition teaches, he observes that Bowers
has been much criticized.
[O]ur laws and traditions in the past half century are of most
relevance here.
These references show an emerging
awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in
matters pertaining to sex. . . .
This emerging recognition should have been apparent when
Bowers was decided.253
For Justice Kennedy, the “emerging awareness” he cites, casts
serious doubt on Bowers and led him to overrule it without finding
that the interest at stake is an implicit fundamental right.254 For
Justice Scalia, writing in dissent, the “emerging awareness” Justice
Kennedy makes reference to “is by definition not ‘deeply rooted in
this Nation’s history and tradition[s],’ as we have said ‘fundamental
right’ status requires.”255 In doing so, Justice Scalia disagrees
sharply with Justice Kennedy on the result that Justice Cardozo’s
theme, embracing tradition as a source of authority for defining due
process, leads to in Lawrence.256
IV. TAKING CARDOZO SERIOUSLY ON THE WAY TOWARD A
CONSTRUCTIVE VIEW OF LAW AS A RHETORICAL ART:
ACKNOWLEDGING LEGAL REASONING AND ARGUMENT AS A FORM OF
APPLIED RHETORIC (INVOLVING PRACTICAL REASONING) AS
REVEALED IN THE CREATIVE ROLE OF JUDICIAL CHOICE IN ITS
PRACTICE AND REFLECTING ON THE IMPLICATIONS OF THIS
PHENOMENON FOR REFRAMING THE PRACTICE OF LAW AND LEGAL
EDUCATION
We have seen how judicial choice is dramatically evident from the
way in which Justice Cardozo’s theme in Palko is drawn on as
precedential authority in various ways by different justices in
substantive due process cases during the forty years since the
decision in Griswold. In the course of this history, the Justices have
all had to face the familiar issues of source, content, and
interpretive approach to the text in their effort to search for the
252
253
254
255
256
Id. at 570–71 (majority opinion).
Id. at 571–72.
Id. at 577–78.
Id. at 598 (Scalia, J., dissenting).
Id. at 599.
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constitutionally justified contours of the due process doctrine.257 In
recent years, this has become even more complex as the Court has
begun to embrace an intermediate level of scrutiny for those liberty
interests that do not apparently rise to the level of “fundamental
rights,” yet warrant greater protection than mere liberty for which
traditional scrutiny is applied, as the Casey and Lawrence decisions
seem to indicate.258 In the opinions we have surveyed, we see the
central role that choice plays in judicial decision-making.259
Embracing this fact, we now turn to the implications this has for
reframing constitutional argument in particular, and legal
reasoning in general, as activities that judges and lawyers engage
in as a specialized form of practical reasoning—marked as a
rhetorical art.
The meaning of the variations on Justice Cardozo’s theme that we
have seen emerge in the preceding discussion of the substantive due
process cases offers compelling evidence that constitutional law is a
rhetorical practice involving the use of practical reason prior to, as
well as being present in, argument from analogy involving cases
and other authoritative sources of law.260 In constitutional law,
practical reason is employed in the task of persuasion when
disputes over the choice of action to be taken in the midst of our
current experience are framed in the categories of legal rules and
submitted to courts for decision. While the syllogistic form of legal
reasoning and argument practiced in constitutional law decisionmaking mimics the logic of modern science, it is quite different from
science and, thus, cannot be said to be an example of that science.261
To say this is not to claim that legal reasoning is any less rigorous
than scientific reasoning, but rather to recognize that it is a mix of
objective and subjective judgments shaped by choice and the larger
American narrative—one in which the story of constitutional law is
embedded and by which it is shaped, as well as to acknowledge how
it shapes that narrative. That narrative includes a horizon of
See supra Part II.
See Lawrence, 539 U.S. at 578; Planned Parenthood v. Casey, 505 U.S. 833, 871 (1992).
259 See supra Part III.B.1–5.
260 Law is not “the artificial [r]eason” separated from life and experience as it has often
been claimed to be. This well-worn phrase, “the artificial [r]eason” comes from Lord Coke.
See Charles Fried, The Artificial Reason of the Law or: What Lawyers Know, 60 TEX. L. REV.
35, 39 (1981).
261 MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL
PROFESSION IS TRANSFORMING AMERICAN SOCIETY 237–38 (1994) (arguing that dialectical
reasoning, which builds upon practical reason, is similar to science, yet its “weakness . . . is
that it can never yield the satisfaction of a mathematical proof”).
257
258
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aspiration to secure justice that is practiced with great rigor. That
practice has a tradition marked by precedent and the search for a
usable past even in an age that claims to be free of the strictures
and determining power of tradition.
More importantly, that
practice involves choice at its core, which reveals it as a rhetorical
art and not a science. Legal reasoning is, for all of this, no less
authoritative in our shared life. Its authority within the culture of
lawyers and within the larger community rests on the compelling
status that is given by members of those communities to the
decisions rendered rather than on the force of a mechanical
scientific proof. The task of decision-making then, on this account,
is one that calls for humility in recognition of how context and
choice drive both the arguments of lawyers appearing before the
Court and the decisions of the Court itself, as well as courage to
engage in it fully in order to serve the common good.
In sum, the creative use of Justice Cardozo’s memorable phrase in
Palko by justices who hold quite different views on the content and
the application of the substantive dimensions of the Due Process
Clauses of the Fifth and Fourteenth Amendments provides the best
current evidence that legal reasoning is rhetorical at its core and is
a special example of “practical reasoning.” Recognition of this
phenomenon may be viewed by some as a threat to the claimed
objectivity of the law. Indeed, while the choices involved in
substantive due process are construed as a source of unenumerated
non-economic rights that have kept the fundamental rights doctrine
alive, at the same time they raise difficult and often controversial
questions of legitimacy that accompany those choices. These
questions could be viewed as a threat to the enterprise itself and the
continuing vitality of the fundamental rights doctrine. But that
need not be the case. Forthright acceptance of the role of choice
within the practice of constitutional argument as a rhetorical art
avoids the necessity of “hiding the ball” in the classroom and is the
best hope for its future as a living tradition that can feed our
common life.
Taking the reconstructive possibilities of these observations
seriously can lead us to a reframed understanding of the lawyer’s
activity when engaged in constitutional argument and legal
reasoning in general. Beyond that, these observations invite us to
call for a reframed vision of law school and its curriculum as a
school of applied rhetoric in which thinking like a lawyer is taught
as a special instance of practical reasoning. I lay out how we might
engage in such a reframing of our practice and study in the six
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sections that follow. Section A is devoted to a discussion of
constitutional law as a form of applied rhetoric.
Section B
elaborates this in detail in the context of the lawyer’s work. Section
C is devoted to a discussion of legal reasoning as a search for a
usable past that involves the use of practical reason. Section D is
devoted to a discussion of policy arguments in constitutional law
reframed as not purely consequentialist in the sense of looking
solely at the social good. Section E is devoted to a discussion of
Justice Cardozo’s anguish. Lastly, section F is devoted to a
discussion of the implications the foregoing has for the future of
constitutional law as a rhetorical art.
A. Constitutional Law as a Form of Applied Rhetoric
The story told above, of the journey of Justice Cardozo’s theme in
the work of the Court, reveals something important about the
judicial role, but there is more to be learned. A full recognition of
the place of choice in that story has brought us to the point where
we can assess its meaning and the implications it has for
understanding the practice of constitutional argument in particular
and legal reasoning in general. Having looked at the work of the
Court that drew upon Justice Cardozo’s theme in Palko, and the
choices that were embedded in the theme’s many variations, we are
faced with the question of what to make of this and how it might be
named. What is clear is that the variations and controversies, which
Justice Cardozo’s theme has engendered, have been rooted in the
problem of the fundamental rights doctrine since its inception. But
there is much more to be learned when we ask about the meaning of
this history and its implications for the study and the practice of
law.
The diverse opinions of Justices Cardozo, Black, Douglas, Harlan,
Brennan, Stewart, White, Blackmun, Rehnquist, O’Connor, Scalia,
Souter, and Kennedy that have drawn in different ways on Justice
Cardozo’s theme in substantive due process cases decided in the
forty years since Palko reveal that constitutional argument is a
rhetorical practice marked by practical reasoning which lies at the
very heart of the legal reasoning involved in such argument.262
Thus, the variations on Justice Cardozo’s theme from Palko that we
262 See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965) (discussing the
penumbras of the guarantees in the Bill of Rights); id. at 500 (Harlan, J., concurring)
(arguing that “basic values implicit in the concept of ordered liberty” should base the inquiry);
see also supra Part III.A–B.
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have observed in the ten leading cases discussed above invite us to
reframe our understanding of constitutional argument as an
activity that is deeply rhetorical in character because of the
constant presence of choice involved in the reasoning of the justices
we have studied. This marks the Court’s work as an example of
practical reasoning despite the use of analogical reasoning in its
argument from precedent.
The very choice to proceed from
precedent, as well as the choice of how to work from the precedent
of the Palko theme, illustrates the work of judges and the lawyers
who appear before them as practical reasoning.
Practical reasoning addresses practical issues concerning choices
of action.263 Practical reason, most simply stated as understood
today, proceeds from ends to means in a situation requiring choice
between two or more courses of action.264 As such, it is employed as
an aspect of the art of rhetoric.265 In medieval times, practical
reasoning was clearly understood as the practice of persuasion in
governing bodies and courts of law.266 Today, it is thought of more
generally as any practice of persuasion.267 Often it is used as a
pejorative for deceptive persuasive practice.268 Therein lies the
reluctance of many to confess that what we do is engage in applied
rhetoric through practical reasoning within the legal tradition.
But what is practical reasoning in law? In case law, we might say
that this form of “practical” reason proceeds with the recognition
that the case at hand presents a choice between two ways of
framing an issue, choosing a rule, and ultimately applying the rule
to reach a decision on a course of action that is required in the case
as a matter of law.
As a rhetorical move, practical reasoning has come to shape and
263 See generally A.J.P. Kenny, Practical Reasoning and Rational Appetite, in PRACTICAL
REASONING 63, 63 (Joseph Raz ed., 1978) (discussing the process of practical reasoning);
Vincent A. Wellman, Practical Reasoning and Judicial Justification: Toward an Adequate
Theory, 57 U. COLO. L. REV. 45, 88 (1985) (discussing the role of practical reasoning in judicial
decision making).
264 Wellman, supra note 263, at 88.
265 See Francis J. Mootz III, Argument, Political Friendship, and Rhetorical Knowledge: A
Review of Garver’s For the Sake of Argument, 110 PENN ST. L. REV. 905, 905–06 (2006)
(discussing the line between the practical reasoning and rhetoric).
266 See
J. Stanley McQuade, Medieval “Ratio” and Modern Formal Studies: A
Reconsideration of Coke’s Dictum that Law is the Perfection of Reason, 30 AM. J. JURIS. 359,
364 (1993); see also Eileen A. Scallen, Classical Rhetoric, Practical Reasoning, and the Law of
Evidence, 44 AM. U. L. REV. 1717, 1728–30 (1995) (tracing the historical use of rhetoric in the
law to Aristotle).
267 See, e.g., Scallen, supra note 266, at 1748 (quoting Judge Posner, who describes
practical reasoning as “a grab bag of methods, both of investigation and of persuasion”).
268 SONJA K. FOSS ET AL., CONTEMPORARY PERSPECTIVES ON RHETORIC 1 (3d ed. 2002).
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inform the discussion of substantive due process today as that
doctrine has re-emerged from the ashes of the Lochner era.
Substantive due process has enduring meaning and lives on in the
protection of unenumerated non-economic rights because of the very
choices that have been made by the Court over the years in deciding
what Justice Cardozo’s theme means when applied to the
controversies of today. But what is this “practical reasoning” that I
have argued reveals Justice Cardozo’s rhetorical legacy?269
The story I have recounted of the variations on Justice Cardozo’s
theme270 is one of dynamism in constitutional law, not unlike that
found in the growth of the common law. As such, it should not be
surprising to lawyers trained in the Anglo-American legal
tradition—steeped as it is in common law. This tradition carries
habits of mind and forms of argument developed over the years.
The rigor required for its practice may appear to follow the model of
empirical material scientific inquiry, but, unlike such scientific
inquiry, it has not led to immutable determinate results either in
the common law or in constitutional law.271 This is especially true
in the case of substantive due process doctrine as an expression of
implied fundamental rights.
The justices whose work in
substantive due process cases we have surveyed often draw on
Justice Cardozo’s theme in the course of reaching quite different
outcomes in the cases that come before them.272 In fact, we have
seen that they have different views on the nature of the theme
itself.
Some tend to view Justice Cardozo’s theme as the
embodiment of a categorical definition of fundamental rights,273
while others see it as embodying a balancing approach to such
rights that involves a variety of factors;274 but both of these views
agree that the fundamental rights doctrine has a secure place in
269 For an introduction to rhetoric and practical reason, which informs much of my work in
this Article, see generally FOSS ET AL. supra note 268; see also Kenny, supra note 263. For a
good, easily accessible, on-line description of “practical reason” in a standard encyclopedic
work on philosophy, see R. Jay Wallace, Practical Reason, in THE STANFORD ENCYCLOPEDIA
OF PHILOSOPHY (Edward N. Zalta ed., Winter ed. 2003), http://plato.stanford.edu/archives/
win2003/entries/practical-reason.
270 See supra Part III.B.
271 See supra text accompanying notes 159–60, 261.
272 See supra Part III.B.1–5.
273 See, e.g., Bowers v. Hardwick, 478 U.S. 186, 191–92 (1986) (noting that homosexual
acts were “obious[ly]” not protected by then-current substantive due process formulations);
Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring) (arguing that
protections extend beyond the rights that are specifically enumerated).
274 See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 130 (1989); Moore v. City of E.
Cleveland, 431 U.S. 494, 546–47 (1977) (White, J., dissenting); Poe v. Ullman, 367 U.S. 497,
542 (1961) (Harlan, J., dissenting).
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American constitutional tradition.275 The single contemporary
exception to this generalization may be Justice Scalia who noted in
a 1994 opinion,
Except insofar as our decisions have included within the
Fourteenth Amendment certain explicit substantive
protections of the Bill of Rights—an extension I accept
because it is both long established and narrowly limited—I
reject the proposition that the Due Process Clause
guarantees certain (unspecified) liberties, rather than
merely guarantees certain procedures as a prerequisite to
deprivation of liberty.276
While the distinction often made between a categorical definition
and balancing approaches to judicial decision-making can lead to
sharp differences between justices on the bounds of the judicial role,
a categorical definition and balancing can be, and often are,
combined in practice. This happens, for example, in dormant
commerce clause cases, where categorical definitions are employed
in deciding which facts are placed in the balance between federal
and state interests that are in tension with each other in a given
case.277 But, it has also appeared in recent substantive due process
cases where the Court has been reluctant to apply fundamental
rights analysis with its strict scrutiny scope of review involving
“liberty interests,” opting instead to create a new level of scrutiny in
cases that require some form of heightened review more searching
than traditional scrutiny.278 In these cases, the Court seems to
combine both the categorical and the balancing approach.279 Noting
this in Casey, in particular, the authors of a current case book on
constitutional law refer to the approach employed by the Court as a
form of “ad hoc balancing.”280 In the most recent cases, where the
justices differ is on the content of the category and factors to be
275 Compare Bowers, 478 U.S. at 191–92, and Griswold, 381 U.S. at 492 (Goldberg, J.,
concurring), with Michael H., 491 U.S. at 130, Moore, 431 U.S. at 546–47 (White, J.,
dissenting), and Poe, 367 U.S. at 541 (Harlan, J., dissenting).
276 Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring).
277 See, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 145–46 (1970) (balancing the state’s
interest in requiring business operations to be performed in that state against the burden on
interstate commerce).
278 See supra Part III.B.5.
279 See supra notes 206–08 and accompanying text (examining the standard to be applied
in cases where states attempt to place conditions on abortion).
280 1 MICHAEL KENT CURTIS, J. WILSON PARKER, DAVISON M. DOUGLAS & PAUL
FINKELMAN, CONSTITUTIONAL LAW IN CONTEXT 945 (2d ed. 2006); see also Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877–78 (1992) (balancing the state’s interest in
potential life against a woman’s right to choose an abortion).
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taken into account in the balancing approach, as well as on what
evidence counts and what weight is to be given to such evidence.281
In other words, whether a justice is a categorical definer, a balancer
or some combination of the two, choice is inevitably a mark of an
opinion in substantive due process cases, even if the choice made by
a justice in a particular case is no more than to follow and apply
precedent in a certain way. Consider in the abstract, for example,
the choices faced by a judge in consulting precedent as a source of
law in reaching a decision. In the first instance, the judge may find
that there is no precedent to guide the decision or the opinion that
announces and offers a rationale for the decision. In such an
instance, at least in the common law, the judge creates new law.
The presence of practical reasoning in legal analysis and
argument in such cases without precedent was recognized almost
forty years ago by Edgar Bodenheimer.282 He called it “dialectical
reasoning”283 and noted that it is an important yet “neglected” form
of legal reasoning.284 In doing so, he called for recognition of its
importance in the work of courts.285 In Bodenheimer’s work, he
criticized Edward Levi, in particular, as offering views of legal
reasoning that were too narrow and, thus, incomplete.286 In
describing the non-foundational character of what he called
“dialectical reasoning,” Bodenheimer made reference to the work of
Justice Cardozo when he wrote that “dialectical persuasiveness . . .
is rarely the necessary outcome of a demonstrated truth. As
Cardozo points out, such a decision must normally be tested ‘by the
logic of probability rather than the logic of certainty.’”287
Unfortunately, Bodenheimer’s plea that attention should be given to
this form of reasoning did not lead to a widespread recognition of it
within the legal academy or in the courts.288
See supra Part III.B.
See Edgar Bodenheimer, A Neglected Theory of Legal Reasoning, 21 J. LEGAL EDUC.
373, 375–78 (1969) [hereinafter A Neglected Theory] (describing the course of reasoning used
when precedent is lacking).
283 Id. at 378. In order to understand the theoretical dimensions of dialectical reasoning,
one must turn to Aristotle. Id. at 379.
284 Id. at 380.
285 See id. at 380–82; EDGAR BODENHEIMER, JURISPRUDENCE: THE PHILOSOPHY AND
METHOD OF THE LAW 393 (rev. ed. 1974) [hereinafter PHILOSOPHY AND METHOD OF THE LAW].
286 A Neglected Theory, supra note 282, at 373–75 (commenting on EDWARD H. LEVI, AN
INTRODUCTION TO LEGAL REASONING (1949)); see also PHILOSOPHY AND METHOD OF THE LAW,
supra note 285, at 389, 396.
287 A Neglected Theory, supra note 282, at 400. This is an uncertainty that Bodenheimer
says we must learn to live with in the law. Id. at 402.
288 A description and appreciation of Bodenheimer’s “discovery” is cited and discussed at
some length in GLENDON, supra note 261, at 237–39.
281
282
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On close examination, as in the case of the role of Justice
Cardozo’s theme in substantive due process cases noted in Part II,
we have seen that even when precedent is at hand the judge faces a
choice.289 It can occur in at least two ways. On the one hand, the
judge making recourse to a single line of precedent is faced with the
choice of whether to apply that line of precedent broadly or
narrowly to the facts presented in the case at hand. On the other
hand, a judge may find that there is not simply one line of precedent
that might be applied to the facts of the case at hand, but two or
more. The choice is then between these two lines of precedent as
well as deciding whether to apply the chosen line in a broad or
narrow way. This may well depend upon yet another choice of how
to characterize the facts of the case at hand within the language of
the law chosen to be applied to those facts. In the common law, a
judge deciding a case that involves damage to real estate, for
example, may choose between principles of real property, tort or
contract when a real estate contract is involved and, thus, have a
choice from a wide range of doctrinal rules.
Likewise, in
constitutional arguments involving the application of the
fundamental rights doctrine, one might theoretically choose from
such sources as the Ninth Amendment or one of the three clauses of
Section 1 of the Fourteenth Amendment—Privileges or Immunities,
Due Process, or Equal Protection. Notwithstanding the historical
facts that the Privileges or Immunities Clause has arguably been
rendered of little use290 and that the Ninth Amendment has not
been held by the Court to have significant value in non-economic
unenumerated rights cases,291 other than affirming past choices (a
choice itself), what recourse is there in due process cases to a
reliable source of substantive principles? What is there in the Due
Process Clause or the liberty that it protects that a judge can
reference when claiming that the decision to be made and the choice
that informs it is determined by the text and, thus, immune from
choice or the need for an argument to persuade others of the
rectitude of that choice? Here, we see practical reason itself in bold
relief. Practical reason is the practice of argument in the effort to
persuade others to choose a particular course of action in the civic
matters affecting the community.292 The special form that practical
reason takes in court involves the selection and interpretation of
289
290
291
292
See supra Part III.B.
See supra note 41 and accompanying text.
See supra note 20 and accompanying text.
See supra text accompanying notes 263–67.
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rules derived most often from past cases or other sources of law,
which are then applied to the facts of a dispute to decide that case.
Opinions written by judges who decide such cases are efforts to offer
reasons for the judicial choices made in the case in a way that might
secure respect as well as providing guidance and authority for
future cases that come before the court.293 The continued vitality of
this pattern is a matter of a tradition that can be described with a
significant measure of objectivity even when such description may
not completely control the creative way in which a judge applies the
rules of the past in the cases of the future. Deductive moves from
“established” rules and analogical moves to equate the facts in the
case at hand with the facts of the cases out of which the past rules
have emerged may be made,294 but this is not the sum of what legal
reasoning entails. To claim that legal reasoning is confined to
arguments understood in this way is to obscure the choices that are
at the very heart of legal argument—the choices that are made in
terms of how the dispute is characterized as a matter of broad
doctrine and the application of the rules within the doctrine as
applied to the facts of the case. The pervasive presence of these
choices is evident in the very growth of legal doctrine over time.
When such doctrine is studied in a long historical context, it is
always clear that a choice could have led to different turns and
directions in the growth of law than the way that it did.295 How else
can we account for the fact that certain general common-law
principles are received and worked into American law in different
ways when the common law of the individual states is compared
with each other? The same can be said for constitutional law. We
have seen it in the evolving understanding of fundamental rights
doctrine in constitutional history.296
The upshot of this is that the conception of law as a constant—
static and formal—is no longer an option, even though all would
deny that adjudication involves the radical dynamism that marks
293 See
United States v. Int’l Bus. Machs. Corp., 517 U.S. 843, 856
(1996) (explaining the justification behind following precedent and that a departure from
precedent requires some kind of “special justification” (internal quotations omitted)).
294 See LEVI, supra note 286, at 2 (explaining the process by which “a proposition
descriptive of the first case is made into a rule of law and then applied to a next similar
situation”). Levi’s piece has been characterized as one of the classical expositions of legal
reasoning as argument by analogy from past cases. Larry Alexander, The Banality of Legal
Reasoning, 73 NOTRE DAME L. REV. 517, 523 (1998).
295 LEVI, supra note 286, at 2–3.
296 See supra text accompanying notes 29–48 (discussing the evolution of fundamental
rights in American constitutional jurisprudence).
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legislative choice. Judges who disagree with each other in making
the choices they face in the cases they decide may, nevertheless,
accuse each other of unfaithfulness to their role when they charge
each other with acting as a “super-legislature.”297
When we apply the foregoing description of practical reasoning as
a feature of the art of rhetoric found in the Court’s opinions to the
activity of lawyers, we place its practice within the particular
American tradition of legal argument. That tradition contains a
large and well-delineated vocabulary along with a set of conventions
that are employed in the deployment of that category in the task of
persuasion. But choices must still be made in choosing and
deploying that vocabulary and its conventions in a particular case
as, for example, of the interpretive strategy employed in drawing on
the text of the Constitution.298 Thus, I claim that legal reasoning
from precedent is a form of specialized practical reasoning because
it follows certain patterns and conventions that are the habits of
mind and speech that lawyers and law students learn in the course
of taking on a professional identity within the particular tradition of
American lawyers. In sum, lawyers, and thus law students,
perform practical reasoning in the effort to make legal arguments
about choices of action to be taken based on inferences from
recognized sources of law that are held to be authoritative—
themselves involving an argument about a choice of sources of law
and the interpretive approach taken to those sources—all made in
certain recognized ways within the culture of law that lawyers
inhabit and by which they are both formed and creatively engaged
in reforming over time. This is the “lawyer’s work,” and this is what
it means to “think like a lawyer”—if that phrase is to have any
meaning at all as a faithful reflection of what lawyers actually do in
their work. How we might speak of that in a constructive way is the
subject to which I now turn in the next section.
297 See, e.g., Griffith v. Kentucky, 479 U.S. 314, 330 (1987) (White, J., dissenting); Desist v.
United States, 394 U.S. 244, 259 (1969) (Harlan, J., dissenting); Shapiro v. Thompson, 394
U.S. 618, 661 (1969) (Harlan, J., dissenting). This charge was explicitly denied by Justice
Douglas in his opinion for the Court in Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
The phrase “super-legislature” (as well as its variants, “superlegislature” or “super
legislature”) appears in the opinions of courts 1029 times, according to a Westlaw search
conducted by the author on February 26, 2007. Since 2001, it has appeared 218 times.
298 See Int’l Bus. Machs. Corp., 517 U.S. at 856.
See generally PHILIP BOBBITT,
CONSTITUTIONAL INTERPRETATION (1991) [hereinafter CONSTITUTIONAL INTERPRETATION].
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B. Lawyers at Work
Acknowledgment of the on-going dynamic possibilities present in
legal analysis and argument, and the range of choices these
represent in applying due process doctrine, invites not only a reconceptualization of law as something other than science, and the
embrace of our practice as rhetors, rather than as scientists, it also
invites a re-conceptualization of our identity and professional
responsibility as lawyers. In light of the foregoing, there is an
added bite to the questions of professional identity and
responsibility we must ask ourselves: What does it mean and what
are we claiming about ourselves when we tell someone that we are
lawyers? Moreover, to whom are we responsible in practice when
we represent someone as a lawyer? One way to begin to respond to
these questions is to re-conceptualize both our practice and our
professional identity as lawyers. We can do this by exploring the
image we carry of ourselves as lawyers that informs our work. This
image, whether reflected upon or not, will profoundly affect what we
are willing and unwilling to do. With this in mind, we can start by
considering what it would mean to forthrightly acknowledge our
role as rhetor—all the way down—in everything we do, as the place
to begin describing what lawyers do and who they are in that work.
What I want to suggest is that we have not in the past been honest
when we stress the independence and objectivity of the law. We
have used it to deny the deeply rhetorical nature of our work in an
age that is wary of rhetoric. In doing so, we have denied the
pervasive presence of practical reason in our work, claiming an
independence and objectivity for it that cannot be demonstrated on
close examination. In what follows, I argue that we should make
the honest choice to embrace our work as rhetors engaged in
practical reasoning—the heart of rhetoric classically understood—
as well as the consequences of what this might be for understanding
what we do and who we are when we tell someone that we are
lawyers.299
1. Constitutional Lawyers as Storytellers in the Messy Middle
To fully understand what it is that a constitutional lawyer does,
299 For an extended discussion of the challenge posed by claiming one’s identity as a lawyer
in the modern world, see Howard J. Vogel, The Terrible Bind of the Lawyer in the Modern
World: The Problem of Hope, the Question of Identity, and the Recovery of Meaning in the
Practice of Law, 32 SETON HALL L. REV. 152 (2001).
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one might well begin by contemplating what it is that a lawyer does.
When we look carefully at what lawyers do we shall see that
lawyers are storytellers.
The heart of the lawyer’s craft is
storytelling.300 Lawyers listen to the stories brought to them by
their clients and, in turn, remember and re-tell them for the
purpose of claiming a particular meaning for these stories within
the language of law. To be sure, lawyers do many things. Lawyers
counsel, advise, negotiate, mediate, draft papers, advocate, litigate,
and so on. But inside all of these activities, lawyers begin with the
stories their clients bring to them and work to claim a particular
meaning for those stories within the particular task the lawyer
performs on behalf of the client.
There is always a social dimension to this work. The lawyer is
most intently focused on serving the needs and wants of an
individual client, which is recognized in the very first paragraph of
the American Bar Association Model Rules of Professional Conduct
in the following words: “A lawyer . . . is a representative of clients,
an officer of the legal system and a public citizen having a special
responsibility for the quality of justice.”301 Lawyers also perform a
role that occupies a position of trust: between a lawyer and client,
between a lawyer and the courts, between a lawyer and the rule of
law, and, thus, between a lawyer and the larger community.
Constitutional lawyers do what other lawyers do, albeit with a
different set of materials. Moreover, in constitutional argument the
social dimension of the lawyer’s work is especially evident because
the values of the larger society are always present within particular
constitutional disputes about the origin, nature, and function of
governmental power, as well as the human rights which serve as a
limit on that power. These value-based dimensions of constitutional
argument are present because some, but not all, of the values of the
larger society are embraced within the constitutional text. Thus,
constitutional cases are always, in part and in a very direct way,
cases about who we are as a people and how we have chosen to live
300 The work of Robert M. Cover is of central importance for exploring the work of lawyers
as storytelling. See NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER
(Martha Minow, Michael Ryan & Austin Sarat eds., 1992). For a major contribution to
understanding the work of the lawyer as involving metaphor through storytelling, see
MILNER S. BALL, CALLED BY STORIES: BIBLICAL SAGAS AND THEIR CHALLENGE FOR LAW (2000).
See also MILNER S. BALL, THE PROMISE OF AMERICAN LAW: A THEOLOGICAL, HUMANISTIC
VIEW OF LEGAL PROCESS 16–17 (1981); MILNER S. BALL, LYING DOWN TOGETHER: LAW,
METAPHOR, AND THEOLOGY 22–23 (1985); MILNER S. BALL, THE WORD AND THE LAW 1 (1993).
301 MODEL RULES OF PROF’L CONDUCT pmbl. (2002).
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together.302 Because the constitutional conversation is ongoing, it
is, most importantly, a conversation about who we might yet
become.
Careful study of the stories that come to the courts presenting
issues of constitutional law demonstrate that even as constitutional
law takes up many of the most difficult political issues of the day, it
does not provide ready answers for them.303 The core tensions in
the American “constitutional settlement” in the founding era, as
described by historian Joseph Ellis, arise because
[t]here are two long-established ways to tell the story, both
expressions of the political factions and ideological camps of
the revolutionary era itself, and each first articulated in the
earliest histories of the period, written while several
members of the revolutionary generation were still alive. . . .
[On the one hand there was] the “pure republicanism”
interpretation . . . later called the “Jeffersonian
interpretation” . . . [in which] [t]he core revolutionary
principle according to this interpretive tradition is individual
liberty. . . .
The alternative interpretation . . . [associated with the
Alexander Hamilton and others for whom] [t]he core
revolutionary principle in this view is collectivistic rather
than individualistic, for it sees the true spirit of [17]76 as the
virtuous surrender of personal, state, and sectional interests
to the larger purposes of American nationhood . . . .
....
What distinguishes the American Revolution from most, if
not all, subsequent revolutions worthy of the name is that in
the battle for supremacy, for the “true meaning” of the
Revolution, neither side completely triumphed. . . . [For] the
revolutionary generation found a way to contain the
explosive energies of the debate in the form of an ongoing
argument or dialogue that was eventually institutionalized
and rendered safe by the creation of political parties. And
the subsequent political history of the United States then
became an oscillation between new versions of the old
tension, which broke out in violence only on the occasion of
the Civil War. In its most familiar form, dominant in the
See LEVI, supra note 286, at 7–8.
Perhaps no single case illustrates this more dramatically than Griswold with its six
opinions. See supra text accompanying notes 166–96.
302
303
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nineteenth century, the tension assumes a constitutional
appearance as a conflict between state and federal
sovereignty. The source of the disagreement goes much
deeper, however, involving conflicting attitudes toward
government itself, competing versions of citizenship,
differing postures toward the twin goals of freedom and
equality.
But the key point is that the debate was not resolved so
much as built into the fabric of our national identity. . . .
Lincoln once said that America was founded on a proposition
that was written by Jefferson in 1776. We are really founded
on an argument about what that proposition means.304
It is out of this founding and ongoing dynamic tension that is
present in the Constitution itself that questions arise in
constitutional cases in one of the two following forms:
(1) Issues arising from the tension between (a) rejection of
centralized distant authority not related closely to the people
in local communities versus (b) the need to develop a coherent
and cohesive national purpose most often expressed as a
conflict between federal and state power (federalism); and
(2) Issues arising from the tension between (a) a commitment to
constitutionalism (limited government) versus (b) a
commitment to democracy (majoritarian government), which
is most often expressed as a conflict between individual rights
and governmental power.
Until the next case arises, constitutional cases address and
resolve these tensions for a period of time. The answers must be
struggled for, in the quest for the “more perfect union.”305 Here, we
collectively experience the existential situation of “making choices
in the messy middle” as an aspect of both life and law. This is the
situation in which the possibility of community, if it is to be
experienced, emerges. There is work for us to do here together in
conversation about who we are as a people, who we have been, and
who we might yet become on the continuing constitutional journey.
2. Constitutional Argument as Constitutive Rhetoric
The lawyer as storyteller is engaged in a set of practices that is a
304 JOSEPH P. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 13–16
(2000).
305 U.S. CONST. pmbl.
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cultural activity that James Boyd White refers to as “constitutive
rhetoric.”306 In making this claim, White takes the view that law is
more a matter of what lawyers do than what lawyers know.307
Simply stated, law is an activity. Because lawyers work with the
texts that give shape to the life of the community, as well as to the
public conversation about the shape of the community, what
lawyers do is a cultural activity involving argument around and
about the text and tradition of the community in which that text is
located. As a cultural activity, law is composed of “a set of
possibilities” and is more like an art than it is like a science.308
In a wonderful little essay, first delivered as an address to first
year students at the University of Chicago, Professor White
elaborates his view of law as a cultural activity that takes place
within the culture of argument inhabited by lawyers, stating:
[L]aw, [is to be regarded] not as a set of rules to be
memorized, but as an activity, as something that people do
with their minds and with each other as they act in relation
both to a body of authoritative legal material and to the
circumstances and events of the actual world. The law is a
set of social and intellectual practices that defines a universe
or culture . . . .309
White says that this cultural activity of lawyers is both
“rhetorical” and “constitutive.”310 In identifying the activity of
lawyers as “rhetorical,” White explains that what lawyers do
involves far more than merely pursuing questions of “What do we
want?” and “How do we get it?”311 A view of law, limited to such
questions, is preoccupied with rules and has little time for
examining the context or purpose of law.312 He describes this as a
306 James Boyd White, Rhetoric and Law: The Arts of Cultural and Communal Life, in
HERACLES’ BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 28, 41 (1985)
[hereinafter Rhetoric and Law]; see also JAMES BOYD WHITE, THE LEGAL IMAGINATION, at xii
(1985) (describing the stages of the telling of and listening to a story that a lawyer goes
through when representing a client); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR
MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER, AND
COMMUNITY, at xi (1984) [hereinafter WHEN WORDS LOSE THEIR MEANING] (describing the
community established by and in law).
307 Rhetoric and Law, supra note 306, at 33.
308 Charles L. Black, Jr., Law as an Art, in THE HUMANE IMAGINATION 17, 21 (1986).
309 James Boyd White, The Study of Law as an Intellectual Activity: A Talk to Entering
Students, in HERACLES’ BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 49, 52
(1952) [hereinafter Law as an Intellectual Activity] (emphasis in the original).
310 Rhetoric and Law, supra note 306, at 28.
311 Id. at 30–31.
312 Id. at 30.
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mechanical view of the law.313 Against the mechanical view he
develops the elements of law as a rhetorical art.314 While not
ignoring the rules, White’s view of law as a rhetorical art is
preoccupied with participation in constitutive conversations that
proceed from and make up the life of the community.315
In naming law and the activity of lawyers as “constitutive
rhetoric,”316 White says that “‘constitutive’ rhetoric” is “the central
art by which community and culture are established, maintained,
and transformed. So regarded, rhetoric is continuous with law, and
like it, has justice as its ultimate subject.”317
The activity of legal argument, understood as rhetorical and
constitutive, White says, has three characteristics which mark it as
a cultural act for creating community: First, it works empirically
with the inherited language; second, it involves an argument about
the terms of the language itself; and third, it involves an argument
about the character of the community in which the language is
used.318
White’s description of each of these elements is worth our
contemplation.
(1) “The Inherited Language”—“[T]he lawyer must always start by
speaking the language of his or her audience, whatever it may
be.”319 Thus legal argument must be culture specific. In the study
and practice of constitutional law we are concerned, then, with the
styles of argument within the subculture of constitutional law.
(2) “The Art of the Text”—“[I]n speaking the language of the law
the lawyer must always be ready to try to change it: to add or to
drop a distinction, to admit a new voice, to claim a new source of
authority, and so on.”320 This involves a creative process for it is an
argument about language. It is culture constitutive. The lawyer is
saying that “this case should be decided . . . [with this result] in this
language . . . [for it is] the proper language of justice in our
culture.”321
(3) “The Rhetorical Community of Lawyers”—To paraphrase
Id.
Id. at 31–32.
315 Id. at 34.
316 Id. at 33.
317 James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and
Communal Life, 52 U. CHI. L. REV. 684, 684 (1985).
318 Rhetoric and Law, supra note 306, at 33–34.
319 Id. at 33.
320 Id. at 34.
321 Id.
313
314
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White, when you speak as a lawyer you establish a character for
yourself as a lawyer—“an ethical identity” for your audience and
those you talk about.322 In addition, you propose a relationship
among the characters you define.323 Therefore,
The lawyer’s speech is . . . always implicitly
argumentative not only about the result—how should the
case be decided?—and the language—in what terms should it
be defined and talked about?—but about the rhetorical
community [of lawyers] of which one is at that moment a
part. [The lawyer] is always establishing in performance a
response to the question[s] “What kind of community should
we who are talking the language of the law establish with
each other, with our clients, and with the rest of the world?
What kind of conversation should the law constitute, should
constitute the law?”324
Lawyers’ arguments can have great constitutive power because
they involve language that is an expression of the coercive power of
law to shape social behavior. Ultimately, the power of legal
language is the power to shape the larger community beyond the
culture of lawyers.
In sum, the constitutive activity of law is deeply related to the
larger culture as well as to the culture of lawyers in a complex
interactive way. Two sets of phenomena—(1) life and culture and
(2) law and the culture of lawyers—are co-dependent by acting upon
each other and together shaping the meaning of justice in the
community in which they are related. The activity of law shapes
the culture of lawyers, which in turn shapes, in part, American life
and culture, while at the same time, the law and the legal culture
are shaped, in part, by American life and culture.325
So,
understanding legal discourse is an important part of the moral and
the political discourse of American society. As such, it can have a
powerful impact on our society.326
Id.
Id.
324 Id.
325 Id. at 35; see also Carol Weisbrod, On the Expressive Functions of Family Law, 22 U.C.
DAVIS L. REV. 991, 991 (1989) (“Law is a play, a story, a message, a thing that is shaped by
the culture and in turn shapes the culture.”).
326 See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (declaring separation of
children on the basis of race in public schools is a denial of equal educational opportunity
under the Fourteenth Amendment equal protection clause). The Court’s opinion played a
major role in defining equality in education as equality of opportunity rather than outcomes.
Id.; see also Jack P. Desario et al., The Future of Affirmative Action: The Legal Imperative
Nationally and the Ohio Experience, 46 CLEV. ST. L. REV. 765, 768 (1998) (stating that the
322
323
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To engage in this work as constitutional lawyers, we gather
around the constitutional text and begin to tell stories. We do so
with a recognition gained from our study about the history and the
tradition of American constitutional argument, which the
constitutional text and the values it embraces give shape to our
storytelling. This comes from the vocabulary, the structure, and the
modes of argument that have come to distinguish the American
tradition of constitutional interpretation and argument. While our
activity is thus shaped by the past, we, in our practice of
constitutional interpretation and argument, can add to and enlarge
the meaning of that tradition with our efforts to address the
conflicts and the disputes of the present day. Thus, as we gather for
constitutional conversation, we take up the text and engage each
other in argument about the possibilities of American constitutional
law in order to secure the American vision of justice—a vision of
equal liberty within “a more perfect union” contained in the
Declaration of Independence327 and the United States
Constitution.328 This involves the development of expertise in the
practical skill of performing the craft of constitutional argument in a
way that is grounded in a rich contextual understanding of the
history of constitutional argument and adjudication as a rhetorical
art.
In sum, in a constitutional setting, we might say that lawyers are
storytellers engaged in constitutive rhetoric to serve the common
good—as the constitution puts it, to serve the quest for “a more
perfect Union.”329 The “constitutive rhetoric” of constitutional
lawyers is constitutive in two interlocking senses: it constitutes the
discourse about the constitutional discourse and, in turn, it
constitutes who we are as a people.330 It brings both a vocabulary
into being as well as a people engaged in calling a political society
into being through that vocabulary. Lawyers are deeply engaged in
goal of a certain “type of affirmative action represents a significant shift from equality of
opportunity to equality of outcome” (emphasis added)).
327 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (“We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness.”).
328 U.S. CONST. pmbl. (“We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquillity, provide for the common defence,
promote the general Welfare, and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution for the United States of America.”)
(emphasis added).
329 Id.
330 See Rhetoric and Law, supra note 306, at 35, 39.
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this constitutive activity both in and out of the courtroom because of
the large role law plays in shaping American culture and political
society. Thus, constitutional lawyers are embedded in a set of
relational practices, bound to a community that looks, in part, to
those practices for its common life.
James Boyd White illustrates the constitutive rhetorical
character of constitutional argument in his analysis of the
landmark case of McCulloch v. Maryland,331 where White argues
that Chief Justice Marshall’s opinion for the Court played a central
role in constituting the constitutional conversation of lawyers, as
well as everyday citizens.332 As such, it is a prime example of
constitutive rhetoric in action. As White observes:
Marshall claims at last . . . that the Constitution is not to
be regarded as establishing a separate sphere of life or
language; it must be seen as an integral part of the culture of
which it is made and which it, in turn, reconstitutes. This is
indeed why it must be regarded not as a mere legal
instrument, resting on some abstract authority, but as a true
constitution: of language, of community, and of culture.333
McCulloch, beyond all other constitutional cases, constitutes, in
White’s sense, our constitutional discourse.334 It provides the basic
structure for analyzing any case in constitutional law.335 We look
for the power, the end, the means, and the power’s relation to the
end with a concern for the prohibitions on certain exercises of the
power claimed, as well as whether such claims to power are a
pretext—exactly as Marshall laid this out in four memorable
sentences in McCulloch.
Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are
constitutional.
....
. . . Should congress, in the execution of its powers, adopt
measures which are prohibited by the constitution; or should
congress, under the pretext of executing its powers, pass
331
332
333
334
335
17 U.S. (4 Wheat.) 316 (1819).
WHEN WORDS LOSE THEIR MEANING, supra note 306, at 263–64.
Id. at 260.
Id.
See id.
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laws for the accomplishment of objects not intrusted to the
government; it would become the painful duty of this
tribunal, should a case requiring such a decision come before
it, to say, that such an act was not the law of the land. But
where the law is not prohibited, and is really calculated to
effect any of the objects intrusted to the government, to
undertake here to inquire into the decree [sic] of its
necessity, would be to pass the line which circumscribes the
judicial department, and to tread on legislative ground. This
court disclaims all pretensions to such a power.336
These sentences are the source of the broad structure of our
analysis and argument—they constitute our constitutional
discourse.
3. Constitutional Argument as Interpretive Argument
I have argued that the craft of constitutional argument is devoted
to securing the American constitutional vision of “a more perfect
Union”337 and that such argument constitutes the discourse that
leads us to address the values embraced by the Constitution and
their meaning in the context of the cases which come before the
Court—the underlying stories we work with. To do so, we seek to be
faithful to the constitutional vision. Therein lays a problem that
reveals another important fact about the task of constitutional
interpretation. While the constitutional text embraces values that
are an expression of this vision, the vision is not fully self-defining.
Rather, the constitutional text provides a framework for a
conversation about the meaning of the vision in particular cases.
The opinions of the Court build on and elaborate this framework. It
does so through interpretive choices required and rationalized by
interpretive argument. Thus, much of the study of law is an effort
to understand and to learn how to work with this framework in the
practice of constitutional argument, which is attentive to values but
more so to interpretive possibilities. In sum, we might well define
the lawyer’s craft of constitutional argument as follows:
The craft of American constitutional argument is a performing art
that involves the use of critical imagination, grounded in a rich
contextual understanding of the history of constitutional argument
and adjudication, for the purpose of developing an inference
336
337
McCulloch, 17 U.S. (4 Wheat.) at 421, 423 (footnote omitted) (emphasis added).
U.S. CONST. pmbl.
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concerning the meaning of the vision of justice contained in the text
of the Constitution and as applied to the facts of a particular
dispute supported by reasons that seek to persuade others to
embrace such an inference in the context of the dispute.338
This definition takes constitutional argument to be a form of
interpretive argument that recognizes constitutional argument as a
rhetorical art with practical reason as its heart in which we seek to
persuade decision-makers to reach conclusions beneficial to our
clients. It is an argument about the meaning of the constitutional
vision of justice contained in the text of the Constitution within the
facts of a particular case. More broadly, but no less concretely,
constitutional argument is a continuing drama about the content
and the character of the relationships established and mediated by
the text between four related sets of actors: the people (in general),
the federal government, the state governments, and the individual
members of society.
The constitutional conversation is conducted in a way that can be
described in terms of a set of conventions of argument employed by
the participants in the conversation.
Appeals to justice or
convenience must employ a defining rubric within the bounds of the
conventions of constitutional advocacy to be effective—in
explanation, they must be made in constitutional terms. From this
perspective, the study of constitutional law is a course of study in
the culture of constitutional argument, and its core concern is
studying the way in which that argument is performed. This
includes an examination of the conventional forms of argument, as
well as how arguments might be made in the effort to alter the
conventions of constitutional argument.
The study of constitutional analysis and argument over time will
reveal a deeply embedded pattern of conventions—which rests on a
shared set of assumptions about the law—that are indebted to the
eighteenth-century background of the American Constitution.339
Thus, for example, in American constitutional law, human rights
are most often understood in highly individualistic and negative
terms, rather than in collective and affirmative terms.340 In this
See WHEN WORDS LOSE THEIR MEANING, supra note 306, at 284.
See William E. Nelson, The Eighteenth-Century Background of John Marshall’s
Constitutional Jurisprudence, 76 MICH. L. REV. 893, 893, 901 (1978) (explaining how Justice
John Marshall “used eighteenth-century political methods” to resolve his constitutional cases,
which “have been of enduring significance and have generated widespread scholarly debate”).
340 See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (upholding the right to
consensual sexual conduct between same-sex partners and defining the right of privacy in
individualistic and negative terms); see also Maria Foscarinis, Advocating for the Human
338
339
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framework, reality is understood as a Hobbesian struggle of all
against all.341 Individual rights in this framework serve to protect
the individual against encroachment from the government by
policing the separation of the public and private aspects of
experience.342 The strong tilt in American constitutional law toward
an individualistic and negative understanding of rights makes it
difficult, but not impossible, to engage in argument about
constitutional rights in collective and affirmative terms.
Notwithstanding the power of this background to influence the
practice of constitutional argument, it cannot ultimately determine
the practice in a mechanistic way. Interpretation of both text and
the tradition that surrounds the text must be undertaken to reach
decisions in the cases that come before the Court.
4. Modes of Constitutional Argument as Strategies for Interpreting
the Constitution and the Role of the Text
All arguments in constitutional cases, whether they address
questions of power or rights, must be constitutionally based. In
other words, arguments start with the constitutional text and then,
are made “in the name of the Constitution.”
Constitutional argument may indeed always start with the text
and be made in the name of that text, but nonetheless it requires
the practitioner to make a choice of interpretive strategy for claiming
a meaning for the text within the context of the facts presented in
the case. The constitutional text is neither self-defining nor does it
prescribe a particular interpretive approach to determining the
meaning of the text.343
James Boyd White notes that the
Constitution is an “action with words”344 that constitutes a
structured process that is itself on-going and constitutive in
character. In this sense the Constitution embodies and presents the
lawyer with a set of possibilities345 through statements of “absolute
Right to Housing: Notes from the United States, 30 N.Y.U. REV. L. & SOC. CHANGE 447, 447
(2006) (explaining that the United States views human rights as a negative right).
341 See generally THOMAS HOBBES, LEVIATHAN 94–98 (1909).
342 For a discussion of the private and public distinction, see Louise Marie Roth, The Right
to Privacy is Political: Power, the Boundary Between Public and Private, and Sexual
Harassment, 24 LAW & SOC. INQUIRY 45, 49–53 (1999).
343 CONSTITUTIONAL INTERPRETATION, supra note 298, at 5 (arguing that all written laws,
including the Constitution, must be “construed” (emphasis in the original)).
344 WHEN WORDS LOSE THEIR MEANING, supra note 306, at 5–6.
345 Black, supra note 308, at 21. The phrase “[t]he Possibilities of American Law” is the
subtitle of James Boyd White’s chapter discussing Chief Justice Marshall’s opinion in
McCulloch v. Maryland. WHEN WORDS LOSE THEIR MEANING, supra note 306, at 231.
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authority” and “absolute silences.”346 One of the most remarkable
silences is the failure of the text to designate an answer to the
question of how shall the constitution be interpreted? In this
absence some have argued that the original intent of the framers
should control.347 But, there are a variety of approaches, each
competing for primacy in constitutional interpretation, and there
are few teachers of constitutional law today who hold out for a
consensus developing around one of the approaches that are in
play.348 Faced with this silence on interpretive approach, every
constitutional argument requires a choice between various modes of
argument that utilize a particular source of authority in a particular
way for the purpose of claiming a meaning for the constitutional
text.
The ranges in choices of interpretive strategy are discussed by
Philip Bobbitt in his effort to develop a description of the modalities
of constitutional argument that have appeared in American
history.349 A modality is “the way in which we characterize a form
346 WHEN WORDS LOSE THEIR MEANING, supra note 306, at 244. The meaning of silence
has spawned close judicial scrutiny and interpretation over the years. The most prominent
example is the so-called “dormant commerce clause.” This is a reference to the fact that when
Congress has not spoken on a commercially-related activity but a state has either regulated
or taxed that activity, the Court will undertake to determine whether the clause permits such
state action.
347 For example, there is debate over the “living” character of the constitution.
See
generally RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 132–37 (1977); Rehnquist, supra note
205. For a later version of this continuing debate which focuses on the extent to which the
framers’ intent ought to constrain judicial behavior in interpreting the constitution, compare
the views of former Justice William J. Brennan with the views of former Attorney General
Edwin Meese, who served under President Ronald Reagan. Compare William J. Brennan, Jr.,
The Constitution of the United States: Contemporary Ratification, Address Before the
Georgetown University Text and Teaching Symposium (Oct. 12, 1985), reprinted in
INTERPRETING LAW AND LITERATURE: A HERMENEUTIC READER 13 (Sanford Levinson &
Steven Mailloux eds., 1988), with Edwin Meese III, Address Before the D.C. Chapter of the
Federalist Society Lawyers Division (Nov. 15, 1985), reprinted in INTERPRETING LAW AND
LITERATURE, supra, at 25. For a scholarly treatment of James Madison’s views on
interpretation, see generally H. JEFFERSON POWELL, JAMES MADISON’S THEORY OF
CONSTITUTIONAL INTERPRETATION, reprinted in INTERPRETING LAW AND LITERATURE, supra,
at 97.
348 See Sanford Levinson, Judicial Review and the Problem of the Comprehensible
Constitution, 59 TEX. L. REV. 395, 417–19 (1981) (reviewing JESSE H. CHOPER, JUDICIAL
REVIEW AND THE NATIONAL POLITICAL PROCESS (1980) and JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW (1980)).
See generally Paul Brest, The
Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional
Scholarship, 90 YALE L.J. 1063 (1981) (discussing various views and theories regarding the
contemporary fundamental rights controversy, alternative strategies of judicial review, and
how the controversy compares with liberal democracy and the modern liberal ideology).
349 CONSTITUTIONAL INTERPRETATION, supra note 298, at 12–13; see also PHILIP BOBBITT,
CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 7, 93 (1982) [hereinafter
CONSTITUTIONAL FATE] (exploring five of the six types of constitutional argument, including
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of expression as true.”350 Thus, constitutional modalities are “the
ways in which legal propositions are characterized as true from a
Bobbitt argues that the six
constitutional point of view.”351
modalities he describes can account for the various ways in which
legal propositions are characterized as true within the opinions of
the United States Supreme Court.352 These modalities are, as
Bobbitt puts it, part of our “constitutional fate”353 and, thus,
internal to our practice of constitutional argument within the
American constitutional tradition, rather than the product of an
external theory of political or legal philosophy.354
Bobbitt’s
description of his modalities acknowledges that they were derived
from court opinions and may also be described in other ways, as
well as being used in a variety of combinations within the
descriptions he offers.355 He summarizes the six modalities as
follows:
(1) Historical—“relying on the intentions of the framers and
ratifiers of the Constitution.”356
(2) Textual—“looking to the meaning of the words of the
Constitution alone, as they would be interpreted by the
average contemporary ‘[person] on the street.’”357
(3) Structural—“inferring rules from the relationships that the
Constitution mandates among the structures it sets up.”358
(4) Doctrinal—“applying rules generated by precedent.”359
(5) Prudential—“seeking to balance the costs and benefits of a
particular rule.”360
historical, textual, structural, prudential, ethical, and doctrinal).
350 CONSTITUTIONAL INTERPRETATION, supra note 298, at 11.
351 Id. at 12.
352 See id. at 22.
353 CONSTITUTIONAL FATE, supra note 349, at 242.
354 CONSTITUTIONAL INTERPRETATION, supra note 298, at 22.
355 CONSTITUTIONAL FATE, supra note 349, at 8.
356 CONSTITUTIONAL INTERPRETATION, supra note 298, at 12; see also CONSTITUTIONAL
FATE, supra note 349, at 9–24 (providing a formal and extended statement for an historical
modality).
357 CONSTITUTIONAL INTERPRETATION, supra note 298, at 12; see also CONSTITUTIONAL
FATE, supra note 349, at 25–38 (providing a formal and extended statement for a textual
modality).
358 CONSTITUTIONAL INTERPRETATION, supra note 298, at 12–13; see also CONSTITUTIONAL
FATE, supra note 349, at 74–92 (providing a formal and extended statement for a structural
modality).
359 CONSTITUTIONAL INTERPRETATION, supra note 298, at 13; see also CONSTITUTIONAL
FATE, supra note 349, at 39–58 (providing a formal and extended statement for a doctrinal
modality).
360 CONSTITUTIONAL INTERPRETATION, supra note 298, at 13; see also CONSTITUTIONAL
FATE, supra note 349, at 59–73 (providing a formal and extended statement for a prudential
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(6) Ethical—“deriving rules from those moral commitments of
the American ethos that are reflected in the Constitution.”361
Note that Bobbitt tends to view the doctrinal argument as
definitional in character as contrasted with the prudential
argument, which he identifies as using the method of balancing as
applied to rule-based definitions.362 Note also that doctrinal rules
may develop over time and, thus, can be said to have a history, but
that does not make an argument for further development of a
doctrinal rule historical in character as Bobbitt uses the term
“historical.”363 The historical argument, for Bobbitt, focuses on
what others have called the original intent of the framers at the
time of the founding of the United States.364 Note finally, Bobbitt
argues that “the American constitutional ethos is largely confined to
the reservation [to the states, or to the people] of powers not
delegated to a limited [federal] government.”365 In doing so, Bobbitt
excludes other aspects of the American narrative that are arguably
part of the constitutional ethos. This raises the question of how one
might employ Bobbitt’s categories to classify individual justices as
exemplars of argument from ethos. For example, the approach of
Chief Justice Taney, who in making his original intent argument in
the Dred Scott case, draws on the larger American social and
political ethos with its view that Africans were “doomed to
slavery”366 as “an inferior order, and altogether unfit to associate
with the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound to
respect,”367 to support his view that, as a matter of original intent,
persons of African descent were never intended to become part of
“We the people”368—the citizens who made up the American political
community.369 Contemplation of how to classify this part of Taney’s
argument will reveal a feature of Bobbitt’s typology that he makes
clear in his exposition: the six modalities do not often appear in
modality).
361 CONSTITUTIONAL
INTERPRETATION, supra note 298, at 13, 20–22; see also
CONSTITUTIONAL FATE, supra note 349, at 93–119 (providing a formal and extended
statement for an ethical modality).
362 CONSTITUTIONAL INTERPRETATION, supra note 298, at 17–18.
363 See id. at 12–13.
364 See CONSTITUTIONAL FATE, supra note 349, at 9–10.
365 CONSTITUTIONAL INTERPRETATION, supra note 298, at 21 (internal citation omitted).
366 Scott v. Sanford, 60 U.S. 393, 410 (1856).
367 Id. at 407.
368 U.S. CONST. pmbl.
369 Scott, 60 U.S. at 404–05.
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“pure” form, isolated from the others.370
The modes Bobbitt identifies can be nested to support one mode
or another.371 Thus, doctrinal argument, for example, can be
mobilized in support of an argument that is dominated by the
textual mode. Likewise, a textual argument may be mobilized in
support of an argument dominated by the historical mode and so on.
Bobbitt’s typology can be very helpful, but the extent to which
Bobbitt’s description of the six modalities of constitutional
argument do, or do not, exhaust the possibilities of what
constitutional argument has become in practice is contestable.372
In sum, through the study of constitutional interpretation we
seek to develop a sound understanding of the American
constitutional conversation so that we may enter that conversation
ourselves. As part of this study, a student cannot avoid deciding
where and how to stand in relation to the culture of constitutional
argument that is at the center of our constitutional conversation.
What each of us makes of it is a matter of choice and helps define
each of us as constitutional lawyers.
See CONSTITUTIONAL INTERPRETATION, supra note 298, at 13–14.
Bobbitt describes how the six types can be confused with each other, but, in doing so,
also demonstrates how they may be used to augment each other. See id. at 13–19.
372 Except for acceptance of his description of the six modalities of constitutional
interpretation and argument, the claims Bobbitt makes for his work, especially his distinction
between legitimization and justification of constitutional decisions and his discussion of the
role of conscience in constitutional adjudication, has been largely neglected by other scholars.
One exception to this is the critical exploration of Bobbitt’s views contained in Symposium,
Symposium on Philip Bobbitt’s Constitutional Interpretation, 72 TEX. L. REV. 1703 (1994). Of
particular note in this collection are the appreciative comments of H. Jefferson Powell,
Constitutional Investigations, 72 TEX. L. REV. 1731 (1994), and the critical comments of J.M.
Balkin & Sanford Levinson, Constitutional Grammar, 72 TEX. L. REV. 1771 (1994). See also
Philip Bobbitt, Reflections Inspired by My Critics, 72 TEX. L. REV. 1869 (1994) (providing
further insight into Professor Bobbitt’s views). The typologies of constitutional argument, as
well as legal argument in general, have been constructed in ways that differ from Bobbitt’s
approach. See infra notes 389–90 and accompanying text (discussing the work of Wilson
Huhn). Huhn specifically mentions his indebtedness to the six-fold typology of Bobbitt, as
well as the three-fold typology of William Eskridge & Philip P. Frickey. See WILSON HUHN,
THE FIVE TYPES OF LEGAL ARGUMENT 4 (2002); see also William Eskridge & Philip P. Frickey,
Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 341 (1990). Michael Kent
Curtis and his colleagues, in their casebook on constitutional law, specifically mention their
indebtedness to Bobbitt and Charles L. Black, Jr., while also citing and discussing the work of
Huhn and the four-fold hierarchical typology of Richard Fallon. See CURTIS ET AL., supra note
279, at 32; see also CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN
CONSTITUTIONAL LAW (1986); Richard Fallon, A Constructivist Coherence Theory of
Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987).
370
371
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C. Constitutional Argument and the Quest for a “Usable Past”: On
the Nature of Legal Reasoning in the Practice of Legal Argument
and Its Implications for Legal Education
Let us now return to the phenomenon of choice in legal argument
and judicial decision-making to see how our lawyer as story-telling
rhetor practices legal argument as an art. Our focus here is on the
nature of legal reasoning from authoritative sources of law with a
view to discerning the marks of such reasoning in rhetorical
perspective. As we have done throughout this Article, we turn here
to constitutional argument as the example we shall employ to make
the argument. Constitutional law as a branch of law uses legal
reasoning in its practice. We turn to that subject here, and, in doing
so, we will come to recognize that constitutional argument—a form
of legal argument—discloses that practical reason is at the heart of
legal reasoning in general and, thus, reveals something very
important about the nature of legal reasoning, which sheds
additional light on what is involved in the practice of legal
argument. As taught in the typical American law school classroom,
law cases are presented as examples of how courts decide disputes
through the application of legal rules and principles to the disputes
that the law recognizes as capable of legal resolution. (Not all
disputes are capable of resolution by recourse to law, and many that
are may be better resolved through methods of alternative dispute
resolution, such as various forms of mediation and arbitration.) To
apply the rules of law to a dispute requires the identification and
application of a particular rule to a particular case. What comes
with this is the promise of individualized justice. This practice
involves recourse to the past in a way that takes it as authoritative.
Recourse to the past, taken in a way that is faithful to the principles
of decision-making applied in past cases, reflects a deep underlying
principle in the Anglo-American legal tradition and system that
calls for consistency in how similar cases are decided. This is the
principle that “like cases are to be decided alike.”373 Out of this
deep principle, rigor in practicing analogical reasoning is born in an
effort to honor the principle.
In law school, law students soon come to learn that the question
of how to ascertain what the past says, and what it means in the
present case, is not as easy as it may at first seem. Often the
373
Vogel, supra note 299, at 169.
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answer is “it depends.”374 Indeed, this can become a stock response
by a student who is asked to respond to a hypothetical case that is
presented to test the student’s knowledge of the rules and the
student’s capacity to deploy the rules in a legal argument in a case
similar, but not identical to the facts of the cases out of which the
rules to be applied arose. Consider the situation in constitutional
law. Since all argument is made in “the name of the text,”375 we
start with the text as the authoritative source of constitutional law.
Since the constitutional text is the ultimate authoritative source of
constitutional law, one might wonder why constitutional argument
is not simply confined to arguments from the text. How can we
account for the presence of arguments made from such sources as
the original intent of the Framers, the structure established by the
entire text, the precedent of previously-decided cases, the American
constitutional legal tradition, the ethos found in the national
narrative, prudential considerations of the Court’s role and function
as a coordinate branch of government, or policy considerations
focused on the consequences of deciding in a particular way?
Likewise, how do we account for embracing or rejecting some other
source of law thought to be authoritative for deciding the case at
hand by application of a persuasive, but not precedential rule of law
from that source to the dispute in order to secure a decision? Part of
the answer has to do with the fact that the text does not speak in
literal terms to every kind of constitutional dispute that can arise.
Some are easy, as in the case of the specific protection of the right to
vote being accorded to persons eighteen years and older.376 Others
are not as easy, as in the case of the protection of “liberty” under the
Due Process Clause, where people can disagree about the content of
“liberty” despite the long-running love affair of the American people
with the idea of freedom. The Constitution, as Chief Justice
Marshall famously pointed out in McCulloch, does not have the
detail of a legal code.377 Indeed, it is a frame of reference within
which many decisions must be worked out over time.
Another part of the answer to this question of what source of
Id. at 170 (internal citations omitted).
A good example is Justice Thurgood Marshall’s argument that in cases involving
“fundamental interests,” all constitutional argument should be “firmly rooted in the text” to
determine whether such interests merit constitutional protection on a sliding scale of scrutiny
that depends, in part, on the closeness of the interest at stake to the interests protected by
the constitutional text. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 102 (1973)
(Marshall, J., dissenting).
376 See U.S. CONST. amend. XXVI, § 1.
377 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
374
375
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authority to consult beyond the text itself is found in the
indeterminacy of language of some of the most important terms
found in the Constitution, which do not lend themselves to
mechanistic derivation and application.378 What, for example, are
we to take the terms such as “liberty,” “equality,” and “commerce” to
mean? These terms have spawned a wide range of responses by
members of the Court over many years, and they are still
undergoing change today.379
The problem is that while
constitutional argument may indeed always start with the text and
be made in the name of that text, the text requires that the
practitioner make a choice of interpretive strategy for claiming a
meaning for the text within the context of the facts presented in a
particular case. That task is difficult because the constitutional
text is neither self-defining nor does it prescribe a particular
interpretive approach to determining the meaning of the text. The
various types of legal argument that might be made by a lawyer,
restated in the context of the task of constitutional argument, all
make an interpretive claim about the meaning of the Constitution.
They are, as is all legal argument, a form of interpretive argument
that is a rhetorical practice rather than a science.380 In this light,
the several types of constitutional argument that one might make,
all draw inferences about the specific meaning of the text as a
source of law in a given case, and thus each represents a different
way of ascertaining the meaning of the Constitution. In this sense,
the various types of constitutional argument we might identify
under any particular typology of argument represent different
interpretive strategies for approaching the Constitution, but none of
them are prescribed by the text as the preferred way to go about the
task of making a constitutional argument. The upshot of this is
that the very text of the Constitution itself, by virtue of what it does
and does not say, requires that we make an argument about what it
means in each case we take up. The constitutional text cries out to
378 See, e.g., U.S. CONST. art. I, § 8, cl. 3 (Congress’s Interstate Commerce Power); U.S.
CONST. amend. V (Liberty protected under the Fifth Amendment Due Process Clause); U.S.
CONST. amend. XIV, § 1, cl. 3 (Liberty protected under the Fourteenth Amendment Due
Process Clause); U.S. CONST. amend. XIV, § 1, cl. 4 (guarantee of Equal Protection in the
Fourteenth Amendment).
379 The content of “liberty” is addressed in the contemporary substantive due process cases
discussed supra Part II.B.1–5. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833
(1992). The meaning of “equality” arises in a similar way in cases that explore the
fundamental rights strand of equal protection. See also how the scope of “commerce” has
most recently been addressed in United States v. Lopez, 514 U.S. 549 (1995) and United
States v. Morrison, 529 U.S. 598 (2000).
380 See supra notes 159–60, 261 and accompanying text.
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be interpreted, and we must respond in the practice of
constitutional argument.
As we approach the text of the Constitution, we honor the power
of precedent broadly understood because what we are doing is
consulting the past for what it can tell us about the decision
required in the facts of the present case. But, as we now know,
approaching the past in the form of the Constitution can take place
in different ways, depending upon the interpretive choice we have
made among the various types of constitutional argument that vie
for our allegiance—our choice.381 Therefore our interpretive choice
will shape our argument in a way that can be recognized and
named.382 Having made that interpretive choice, we then proceed to
work with the Constitution, as interpreted by the Court over the
years, in an effort to derive rules for application in the present case.
In the course of deriving and applying the rules of law that we glean
from the past, we engage in legal reasoning. This takes place in one
or more of four different ways.
The first way is to proceed deductively. This involves taking a
rule, embodied in the text of the Constitution or case precedent that
applies a specific constitutional rule in a past case, and treating it
as controlling in the present case. We apply it deductively within
the facts of the case.
The second way we might proceed is inductively. Here, we read a
series of past decisions, synthesize the cases in the form of a rule
drawn from them that governs them all, and then apply it
deductively to the facts of the present case.
The third way is by analogy, or reasoning by example, in which
we apply a rule from the past to a present case by pointing out the
similarities between the present case and the case or cases out of
which the rule arose that we wish to apply to the present case.
These three ways of reasoning are often mentioned in writings by
scholars who have tried to describe legal reasoning.383
See supra Part III.B.3.
Such examples include the six categories suggested by Philip Bobbitt: text, intent,
precedent, structure, tradition, and policy. CONSTITUTIONAL FATE, supra note 349, at 9–119;
CONSTITUTIONAL INTERPRETATION, supra note 298, at 11–22.
383 Most notable are the lectures given to the entering students at the University of
Chicago in the mid-twentieth century by Edward Levi and Karl Llewellyn. See LEVI, supra
note 286, at 2 (mentioning reasoning by induction and analogy); K. N. LLEWELLYN, THE
BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 67–68, 70–75 (1960) (mentioning that deductive
reasoning can play a large role—in addition to the inductive-analogical approach described by
Levi—and explaining the system of reasoning a lawyer engages in to come to a legal
conclusion).
381
382
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A fourth way, which is rarely mentioned, is practical reason.
Recall here, the definition of practical reason offered above.
Practical reason proceeds from ends to means in a situation
requiring choice between two or more courses of action.384 In a law
case we might say that “practical” reason proceeds with the
recognition that the case at hand presents a choice between various
ways of framing the issue in the case, choosing a rule, and
ultimately interpreting the rule in a particular way in the course of
applying it to reach a decision on a course of action that is required
in the case at hand as a matter of law. Note that all of the foregoing
choices will be shaped by the choice we make of an interpretive
strategy from the six types of constitutional argument described by
Professor Bobbitt.385 Since the choice of interpretive strategy is
ultimately a choice of action concerning how to approach the text of
the Constitution, it is another illustration of how practical reason is
a prevalent, but often unrecognized, way of reasoning in law. The
use of practical reasoning appears very clearly when there are
either no rules of law to rely on, when the rules are unclear in the
context of the present case, or when a choice of rules must be made,
to apply a rule from the past to the present case. But, what is
rarely recognized is that practical reason appears in virtually every
case, insofar as there are choices for a court to make between the
variety of competing types of interpretive arguments offered by the
lawyers for the parties in the case.
D. The Troublesome Case of Policy: Argument Engaged in to Secure
the Purposes and the Values that Law Serves
Policy argument is much criticized both on and off the bench.386
What does it mean to label an argument as a “policy argument?”
Does it mean something more constrained as, for example, in
service of specific values enshrined in law?387 If it is constrained by
See supra notes 262–287 and accompanying text.
See supra notes 349–72 and accompanying text (discussing Bobbitt’s six modalities).
386 See, e.g., Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 945 (1983)
(commenting critically on Justice White’s characterization of the legislative veto as a “useful
‘political invention’” as follows: “[P]olicy arguments supporting even useful ‘political
inventions’ are subject to the demands of the Constitution which defines powers and, with
respect to this subject, sets out just how those powers are to be exercised”).
387 For a compelling argument about the meaning of the constitutional text that is
contextualized within the purpose of law to do good rather than evil by focusing on the subject
of slavery, see generally Frederick Douglass, The Constitution of the United States: Is It ProSlavery or Anti-Slavery?, Speech Delivered in Glasgow, Scotland (Mar. 26, 1860), in 2 THE
LIFE AND WRITINGS OF FREDERICK DOUGLASS 467–80 (Philip S. Foner ed., 1950) (arguing that
384
385
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and intended to be faithful to the purposes of law, what are these
purposes? Once again, we see that choices abound in the task of
constitutional interpretation.
As we have seen, the variations on Justice Cardozo’s theme that
continue to reverberate today in the work of the Court reveal that
legal analysis and argument is a form of applied rhetoric. The fact
that choice, a mark of rhetorical practice, is present in every
decision rendered by the Court helps us come to a better
understanding of policy argument. This is often criticized today as
an example of legislating from the bench through the imposition of a
judge’s private values upon the facts of a case.388
In the
contemporary exchange of views by justices on the meaning of
Cardozo’s Palko theme, we see a serious attempt by judges to
embrace, uphold, and apply the purpose of the law as gleaned from
the past in light of the issues of the day, rather than as a raw
exercise of power by judges intent on legislating from the bench. In
a nutshell, the recent cases on due process reveal that due process
has a pedigree tied both to the past as well as to the future that is
provoked by the issues of the present that bind it to the past, while
serving the needs of the present and the future. Policy argument in
law, according to this view, is therefore not simply a raw
consequentialist exercise without concerns for rules, but rather an
attempt to honor the past in the present with an eye toward the
future. This story also reveals how, at a deep level, the continuing
debate over the proper role of the judiciary in deciding cases under
the Constitution goes far beyond the well-worn arguments of both
the left and the right in American politics, which are now being
hurled about in the current controversy over federal judicial
appointments.389
Description of policy arguments in one contemporary casebook on
constitutional law separates it from the need to interpret the
Constitution and, instead, offers it as a form of argument about the
“social good.”390 In his book entitled The Five Types of Legal
Argument, Wilson Huhn explains policy argument as one of five
types of legal argument, the others being text, intent, precedent,
the meaning of a law should be interpreted as adopting an innocent purpose).
388 See supra text accompanying notes 195 and 297 on the Court declining to act as a
“super-legislature” and note 386 on criticism of “policy” argument.
389 For a description of the “American Creed” and how it is applied in judicial confirmation
hearings, see Howard J. Vogel, The Judicial Oath and the American Creed: Comments on
Sanford Levinson’s The Confrontation of Religious Faith and Civil Religion: Catholics
Becoming Justices, 39 DEPAUL L. REV. 1107 (1990).
390 CURTIS, supra note 280, at 32–35.
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and tradition.391 In explaining the character of policy argument,
Huhn places heavy emphasis on the consequentialist character of
this type of argument, but with a view of carrying out the purposes
and values that the law serves.392 In a constitutional context, we
might take these purposes and values to be the “purposes and
values” of the Constitution. Policy argument undertaken in this
sense seeks to elaborate on the law by drawing on the principles of
the past, while adapting them to the future in the context of the
needs of the present in a way that is faithful to the past. Thus,
using Huhn’s five-fold typology, we might say that while arguments
from text, intent, precedent, structure, and tradition tend to rely on
categorical definitions that look back to the past, policy argument
often adds a balancing approach that tests the importance and the
weight of the categorically-defined interests at stake in the case in
relation to each other and represents an effort to make an
adaptation of the past to serve the needs of the present and the
future. This is what can lead one to say that arguments such as
text, intent, and precedent look to the past, while policy argument
looks forward and is consequentialist in its perspective.
While there is considerable truth in this, and this is what can
make policy arguments controversial in a constitutional context,
consider the following reformulation of this observation about the
difference between the past-looking or forward-looking forms of
argument. The first four types of argument, described by Huhn,
although tending to look backwards rather than forward, may be
utilized in the course of making a policy argument when they are
called upon to help choose from among several policy alternatives.
Thus, when policy is called upon to elaborate a rule of law from the
past in a new way, the first four types might be called upon in the
aid of an argument for one kind of elaboration versus another. I
make this comment to caution against the view that policy
argument operates without any constraint from the past. If it were
completely unconstrained by past practice and decision, it would be
very difficult to claim that the Court was doing anything other than
acting in a purely legislative manner in every case in which policy
plays a role.393 Because judges are very sensitive to such criticism,
HUHN, supra note 372, at 53.
See id. at 135 (explaining that “[p]olicy arguments may serve abstract values such as
liberty and equality”).
393 This is the essential claim of the most radical form of the argument that “law is politics”
associated with the Conference on Critical Legal Studies. For a leading collection of essays
espousing this view, see THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 8 (David Kairys ed.,
391
392
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it is often the case that policy arguments are made within the
framework of some elements that are drawn from the past—if not
from specific rules—than from the deeper principles which stand
behind the rules. Nevertheless, the difference between policy
argument and other forms remains, since policy tends to look
forward with a concern about the consequences of the different
alternatives that might be chosen in making a decision in a
particular case.
Another possibility that may be included within policy argument
is to recognize that such argument is about choice in order to take
action governed by the practical wisdom of the past, gained from
experience. Once again, recourse to history is involved, but this
time to secure guidance about what to avoid in making a choice
about action. This might be thought of as a variation on the
discussion in the preceding paragraph about the way in which the
past can play a role in weighing the consequences for the future of
several alternative courses of action.
The foregoing comments about policy argument focus on the fact
that it can be helpful in making a choice about action to be taken in
the present and are a reminder of the power of the past as
precedent in legal argument. The comments suggest that legal
argument is always, in various ways, a search for a “usable past” in
light of the need to resolve disputes in the present. This reminder
points to how legal reasoning plays a role in the practice of
constitutional argument. Is this controversial? Yes it is—all of the
fundamental rights cases and, especially, those involving the
discernment of non-economic unenumerated rights under the due
process clauses, as well as those on selective incorporation,
generate, as we have seen, an ongoing debate within the Court
itself.
E. Cardozo and Anxiety in the Practice of Legal Argument as a
Creative Rhetorical Art
Historically, the location of fundamental rights within various
clauses of the constitutional text has moved from privileges and
immunities to due process to equal protection and back to due
process. Throughout this history there are common core issues.
What has been said about the issues of ascertaining the source,
content, and interpretive approach towards construing “due
2d ed. 1990).
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process” and the “liberty” it protects are all interrelated matters of
choice, as we have seen. This demonstrates that the Court faces a
double-sided problem in the midst of these interconnected issues: (1)
identifying the fundamental unenumerated non-economic rights,
and (2) identifying these rights within the context of the quest for a
reliable, legitimating test, which involves the contest between
categorical definitions and balancing as competing approaches to
ensure faithfulness to the Constitution and the Constitution’s core
idea of limited government for the preservation of the people’s
freedom.394 The latter issue involves the question of “choice” versus
a “mechanical” approach to constitutional interpretation. The
upshot is that we are confronted by a choice on how to think about
the Constitution between a determinate rule-based constitution,
which often looks incoherent in the light of the cases (certainty
driven), or a rhetorical constitution, which looks unrooted in either
tradition or a deeper reality (choice driven). These troublesome
issues, and the choices called for by them that need resolution on a
case-by-case basis, are present whether or not law is reframed as a
specialized form of practical reasoning, which is given the name of
“rhetoric.” Many will recoil at the suggestion that law is a
rhetorical art, in a day when “rhetoric” as a term of art so often
connotes a pejorative, but this does not change the reality that
choice is at the heart of legal reasoning and argument. Here,
Justice Cardozo’s example can be helpful.
Like many judges before him and since, Justice Cardozo
embraced the “artificial Reason of the law,” which has been a
hallmark of the claim for the independence and objectivity of the
law and the role of the judiciary.395 This is contrasted with and
distinguished from the legislative role, marked as it is by the clash
of competing interests rooted in partisan commitments and
subjective evaluations on what policies best serve the common
good.396 The shorthand way of drawing these distinctions between
courts and legislative bodies is to say that courts “adjudicate” (they
apply the law) while legislatures “legislate” (they create the law),
which the courts apply. This description is often expressed in
394 TRIBE, supra note 45, at 6–7 (“That all lawful power derives from the people and must
be held in check to preserve their freedom is the oldest and most central tenet of American
constitutionalism.”).
395 See Fried, supra note 260, at 57 (internal quotation marks omitted); see also CARDOZO,
supra note 6, at 90.
396 See Jack Wade Nowlin, The Judicial Restraint Amendment: Populist Constitutional
Reform in the Spirit of the Bill of Rights, 78 NOTRE DAME L. REV. 171, 187–91 (2002).
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normative imperative terms, as when it is said that “judges ought
not legislate from the bench” and argued that those judges who do
so step outside of their judicial role and usurp the function and
prerogative of the legislative branch of government.397 Were a court
to engage in such activity, it is further argued that the court would
be unfaithful to law in the performance of its judicial role—to
adjudicate and not to legislate. But this simple dichotomy has
always proved too facile as a description of the work of courts and
legislatures and has given little help to the student of law who,
deeply immersed in the study of judicial opinions, looks for a
“faithful” decision that is within the bounds of existing law as
compared to an “unfaithful” decision that reaches outside existing
law in order to embrace principles that mark such decisions as
“legislation from the bench.”
The fact is that where once the common law was defined as “judge
found law,”398 this view of law, rooted in the natural law tradition,
has been replaced in the modern era with the view that “the
common law is judge-made law”—a reflection of the ascendancy of
legal positivism and the decline of the natural law of the nineteenth
century.399
Less often studied in law schools, but no less notable than his
common law opinions, is Justice Cardozo’s public addresses in the
William L. Storrs Lecture Series on the role of creativity in the
judicial process, which were delivered at the Yale Law School in
1921.400 These lectures remain in print today—eighty-five years
after they were first delivered.401
The addresses contain many remarkable phrases, but none more
so than Cardozo’s reflections on his experience in coming to a
measure of personal peace with the creative role he played as a
common law judge.
397 Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 WM.
& MARY L. REV. 995, 997 (1997). See generally ROBERT H. BORK, THE TEMPTING OF AMERICA:
THE POLITICAL SEDUCTION OF THE LAW 143–60 (1990) (arguing judges must adhere to the
original understanding approach to the text of the Constitution in order to avoid
unconstitutionally enlarging the judiciary’s powers and thus upsetting the balance of powers).
398 This view of the task of the common law judge is a major premise behind the work of
William Blackstone. See WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
(1892).
399 Melvin I. Urofsky, William O. Douglas as a Common Law Judge, 41 DUKE L.J. 133,
142–44 (1991) (explaining the common law tradition); see also KAUFMAN, supra note 7, at 200
(comparing the differences between the “find law” view and the “make law” view of a judge’s
role in judicial decision-making).
400 See generally CARDOZO, supra note 6 (compiling Cardozo’s addresses from the Storrs
Lecture Series).
401 See id. at 3–4.
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I was much troubled in spirit, in my first years upon the
bench, to find how trackless was the ocean on which I had
embarked. I sought for certainty. I was oppressed and
disheartened when I found that the quest for it was futile. I
was trying to reach land, the solid land of fixed and settled
rules, the paradise of a justice that would declare itself by
tokens plainer and more commanding than its pale and
glimmering reflections in my own vacillating mind and
conscience. . . . As the years have gone by, and as I have
reflected more and more upon the nature of the judicial
process, I have become reconciled to the uncertainty, because
I have grown to see it as inevitable. I have grown to see that
the process in its highest reaches is not discovery, but
creation; and that the doubts and misgivings, the hopes and
fears, are part of the travail of mind, the pangs of death and
the pangs of birth, in which principles that have served their
day expire, and new principles are born.402
While Justice Cardozo may have reached a measure of peace of
mind in his time, this peace was not always shared by others as the
twentieth century unfolded.403
This undoubtedly led Karl
Llewellyn, one of the leading exponents of American Legal Realism,
to write his book entitled The Common Law Tradition: Deciding
Appeals in 1960 in an effort to allay the fears of practicing lawyers
that appellate decisions provided little or no predictability of
outcomes for future cases.404
Justice Cardozo set out his well-known and well-remembered
sentiments at the height of the skepticism that marks the works of
the American Legal Realist Movement.405 The legal realists were a
disparate band of scholars and a few judges who above all wanted to
be “realistic” about what could be gleaned from reading case reports
of appellate decisions. For them “realism” meant breaking with the
formalist stream of American jurisprudence of the nineteenth
Id. at 166–67.
A related anxiety, rooted in profound doubts about the possibility of defending and
legitimating law as independent and objective, was expressed in the last quarter of the
twentieth century in the work of the Critical Legal Studies scholars. See, e.g., Arthur Allen
Leff, Unspeakable Ethics, Unnatural Law, 1979 DUKE L.J. 1229, 1229, 1249 (1980)
(expressing deep doubt about the possibility of discovering a universal and enduring moral
foundation for grounding principles of action while at the same time acknowledging the
problem of evil in human affairs).
404 KARL N. LLEWELLYN, THE COMMON LAW TRADITION: ON DECIDING APPEALS 5 (1960).
405 See GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT
CENTURY’S END 26 (1995). For a description of the work of the Legal Realists, see WILLIAM
TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (1973).
402
403
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century in a way that acknowledged the role of choice in
adjudication. The range of choices they faced is familiar: a different
line of precedent, a different interpretation of the meaning and
application of one line of precedent, the identification and
application of precedent as embodying new principles, or the raw
discernment of new principles and sources of authority.406
What the legal realists shared was skepticism about the
constraining power of legal rules in a system of law that held
precedent and, thus, consistency through faithful recourse to the
past, at its center.407 They differ from each other in regard to the
depth and the radical character of their skepticism and they arrive
at their skepticism for diverse reasons.408 These “rule-skeptics” saw
choice being exercised everywhere, and with this recognition,
formalism was dealt a mortal blow and the rule of law, once thought
of as a science became viewed as a social science. This social science
included rigorous policy analysis in the face of competing policy
choices. The identification and resolution of conflicting interests—a
mark of post-enlightenment interest-based liberalism—now
informed theories of law and adjudication.409 Neutral independent
objectivity was still claimed for policy analysis to the extent that
social science was viewed as a science in the disinterested sense of
the traditional “hard sciences.”410 But that was called into question
by the most radical strain of legal realism.411 The deep skepticism
of the most radical stream of American Legal Realism went so far as
to raise questions about whether a view of law as social science
could save it from being characterized as mere policy choice—akin
to legislation.412 In the 1970s, the emergent Critical Legal Studies
(CLS) movement, heirs to the radical stream of Legal Realism,
406 Compare the discussion of typologies of constitutional argument proposed by Philip
Bobbitt, supra text accompanying notes 349–72 and the alternatives to that typology
discussed supra note 372.
407 See MINDA, supra note 405, at 27–28. Their skepticism was based on two ideas: the
concept “that ‘reality’ is too complex and fluid to be capable of being governed by rules” and
“the critique of the conceptualism and abstraction in Langdellian formalism.” Id.
408 Two judges, Jerome Frank and Joseph Hutcheson, Jr., are notable examples of such
deep skepticism. See JEROME FRANK, LAW AND THE MODERN MIND, at xii (1930) (describing
himself as a fact skeptic); Joseph C. Hutcheson, Jr., The Judgement Intuitive: The Function of
the “Hunch” In Judicial Decision, 14 CORNELL L.Q. 274, 274–78 (1929), reprinted in
JUDGMENT INTUITIVE 14–19 (1938).
409 See FRANK, supra note 408, at x–xiii; Hutcheson, supra note 408, at 279, 281.
410 See FRANK, supra note 408, at 100–07; Hutcheson, supra note 408, at 281.
411 See MINDA, supra note 405, at 28–31.
Gary Minda contrasts these two movements
within Legal Realism as “radical” and “progressive,” with the latter committed to the idea of
law as a social science and the former deeply skeptical of that characterization.
412 Id.
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spawned an outpouring of scholarship that pressed the radical legal
realist view into a powerful critique of every doctrinal branch of
American law.413 The unifying claim of the CLS scholars was that
“law is politics” devoid of any constraining power on judicial choice
that is not embraced by the judge as a matter of self-restraint.414
The spirit of CLS is best described as a distinctly deconstructive
form of post-modernism.415 As such, it eschewed the constructive
task and left “Grand Theory” in the dust of the past.416 But postmodernism need not lead to a deconstructivist ending of theory nor
go back to the fractured syntheses of the past. It can strike out in a
new post-modern constructivist approach. David Ray Griffin, a
leading scholar in the field of process thought, in his Introduction to
the SUNY Series in Constructive Postmodern Thought, describes the
possibilities of constructive post-modern thought as follows:
The postmodernism of this series can, [in contrast with
other forms of postmodernism], be called revisionary,
constructive, or—perhaps best—reconstructive. It seeks to
overcome the modern worldview not by eliminating the
possibility of worldviews (or “metanarratives”) as such, but
by constructing a postmodern worldview through a revision
of modern premises and traditional concepts in the light of
inescapable presuppositions of our various modes of practice.
That is, it agrees with deconstructive postmodernists that a
massive deconstruction of many received concepts is needed.
But its deconstructive moment, carried out for the sake of
the presuppositions of practice, does not result in selfreferential inconsistency. It is also not so totalizing as to
prevent reconstruction. The reconstruction carried out by
this type of postmodernism involves a new unity of scientific,
ethical, aesthetic, and religious intuitions (whereas
poststructuralists tend to reject all such unitive projects as
“totalizing modern metanarratives”). While critical of many
ideas often associated with modern science, it rejects not
science as such but only that scientism in which only the
data of the modern natural sciences are allowed to contribute
Id. at 31.
Supra note 393 and accompanying text.
415 Infra note 418.
416 See MINDA, supra note 405, at 224. But see MARK TUSHNET, RED, WHITE AND BLUE: A
CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 1–4 (1988) (discussing the revival of grand
theories in constitutional law).
413
414
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to the construction of our public worldview.417
What post-modernists share, whether they are the deeply
skeptical critics associated with CLS or constructivists who seek to
claim the possibilities for developing a post-modern theory of law, is
a view that all descriptions of reality are perspectival.418 Thus, for
example, in constitutional law, the deconstructivist post-modernist
view is summed up in a compelling way by Mark Tushnet in his
magnum opus on constitutional theory when he closes his
deconstruction of past attempts at constitutional theory, claiming
that “grand theory” can no longer be practiced and that “[c]ritique is
all there is.”419 Reframing constitutional law as a rhetorical art, as
advocated in this Article, offers an alternative point of view for a
constructive response to this radically deconstructivist view of law
and legal theory. A constructivist approach to constitutional theory
starts by taking seriously the activity of lawyers engaged in legal
argument surrounded by and shaped by a tradition. As we have
seen above, James Boyd White’s view of such activity as a form of
“constitutive rhetoric” is one promising approach to the
constructivist task.420
F. The Future of Constitutional Law as a Rhetorical Art: The Next
Step in Legal Scholarship
We have traveled—some would say strayed—a long way from
Justice Cardozo. It would be a stretch to say that Justice Cardozo,
if alive today, would embrace the radical deconstructivist stance of
CLS. But it does not go too far to say that he would perhaps
acknowledge the importance of recognizing the role of perspective in
417 David Ray Griffin, Introduction to SUNY Series in Constructive Postmodern Thought,
in JOHN B. COBB, JR., POSTMODERNISM AND PUBLIC POLICY: REFRAMING RELIGION, CULTURE,
EDUCATION, SEXUALITY, CLASS, RACE, POLITICS, AND THE ECONOMY, at xi, xiii (David Ray
Griffin ed., 2002).
418 The idea that interpretation of a text is deeply informed by the perspective of the
person engaged in such interpretation, proceeds necessarily from the rule-skepticism of the
realists. In recent years, this has led constitutional scholars to emphasize the phenomenon of
indeterminacy in legal interpretation. This position emphasizes the challenge posed by the
malleability of legal texts. For a discussion of this challenge in the context of legal
interpretation, see generally Sanford Levinson, Law as Literature, 60 TEX. L. REV. 373 (1982).
For a discussion of this challenge in the context of biblical interpretation, see RONALD L.
FARMER, BEYOND THE IMPASSE: THE PROMISE OF A PROCESS HERMENEUTIC 89–90, 93 (1997).
419 TUSHNET, supra note 416, at 318.
For an example of how one might draw on the
resources of process thought to develop a constructive postmodern approach to constitutional
interpretations, see Howard J. Vogel, The Possibilities of American Constitutional Law in a
Fractured World: A Relational Approach to Legal Hermeneutics, 83 U. DETROIT MERCY L.
REV. 789 (2006).
420 See supra Pt. III.B.2.
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the judicial task as a creative constructive activity. Consider the
elements of perspectivalism that may be seen in his 1920s Storrs
Lectures.421
But, one might say, this only applies to common law, whereas in
constitutional law we do have an overarching framework—the text,
which sets the bounds of the judicial role when it comes to
constitutional cases. And furthermore, this text acknowledges the
need for and prescribes a procedure for evolution and change in the
text through the amendment process established by the text
itself.422
The story recounted in this Article of the way in which Justice
Cardozo’s theme from Palko has continued to play a role in many
different variations over the past forty years in substantive due
process cases can lead us to a different view than that of the CLS
scholars. Taking their work seriously as a point of departure, and
recognizing the on-going vitality of Justice Cardozo’s rhetorical
legacy in Palko raises an important question: Can the repose and
peace of mind that Justice Cardozo apparently came to in reflecting
on his creative role in the growth of the common law as a common
law judge be embraced in the twenty-first century in light of the
developments in and continuing controversy over substantive due
process? More specifically, can this peace of mind and repose be
embraced today in light of the many variations on Justice Cardozo’s
theme from Palko evident in the opinions of the last forty years,
which have taken up this theme and expressed it as an
authoritative summary of constitutional doctrine? Or, more broadly,
what does faithfulness to the Constitution mean and require in the
face of the irreducible choices that we must make in the task of
constitutional argument as a rhetorical art?
We can start the task of constructing our own answer to this
question by embracing practical reasoning as the core feature of
what we do and the focus of our legal scholarship. This will call us
to delve into the literature of those few in the world of legal
scholarship who have included a concern with practical reason in
their work. The claim that legal reasoning involves a form of
practical reasoning was embraced two decades ago by Edgar
Bodenheimer as we have seen.423 In more recent years a few others
have turned toward practical reasoning in legal scholarship.424 The
421
422
423
424
CARDOZO, supra note 6.
U.S. CONST. art. V.
See discussion supra note 282 and accompanying text.
See, e.g., Steven J. Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989)
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hesitance of legal scholars to engage in the formal study and
teaching of legal reasoning as a specialized form of practical
reasoning cannot be maintained in the face of the work of the Court
in its recent cases involving substantive due process that we have
canvassed above in Part II. There is no way to go but deeply into an
exploration of the practice and study of legal analysis and argument
as a form of applied rhetoric.
In addition to following the lead of the few legal scholars who
have begun to move in this direction recently, we can substantially
augment our study of legal rhetoric by drawing on the work of our
colleagues in the liberal arts who have labored long in the
departments of speech and communication where rhetoric has
resided for many years. Here we find scholars who, for example,
have taken up rhetorical studies of the work of courts.425 Many of
these scholars of rhetoric are inspired by and take seriously the
work in rhetoric by two twentieth-century giants that we shall also
need to include in our work: Chaim Perelman, who was trained as a
lawyer,426 and Stephen Toulmin, who takes legal argument as an
(discussing law as practical reason); William N. Eskridge, Jr. & Philip P. Frickey, Statutory
Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 322 (1990) (arguing that
statutory interpretation should be approached from a practical reasoning position); Daniel A.
Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45
VAND. L. REV. 534–35 (1992) (arguing that practical reasoning is necessary in judicial
interpretations of the law to resolve the dilemma of leaving judges with too much unguided
discretion in interpretation and stifling judges’ ability to make good common sense
interpretations by demanding strict adherence to the black letter text of the law); Daniel A.
Farber & Philip P. Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV.
1616–17 (1987) (discussing the particular need to use practical reasoning in cases involving
First Amendment issues in order to avoid a mechanical application of rules that does not
consider the appropriateness of the application or the effect); Leigh Hunt Greenshaw, “To Say
What the Law Is”: Learning the Practice of Legal Rhetoric, 29 VAL. U. L. REV. 861–64 (1995)
(explaining the value of teaching practical reasoning in legal writing courses); Donald H. J.
Hermann, Legal Reasoning as Argumentation, 12 N. KY. L. REV. 467, 469 (1985) (discussing
how practical reasoning plays an important role in legal argumentation); Linda Levine &
Kurt M. Saunders, Thinking Like a Rhetor, 43 J. LEGAL EDUC. 108 (arguing that a proper
legal education requires teaching skills in practical reasoning); Vincent A. Wellman, Practical
Reasoning and Judicial Justification: Toward an Adequate Theory, 57 U. COLO. L. REV. 45, 45
(1985) (discussing the role of practical reasoning in judicial decision-making); Gerald B.
Wetlaufer, Rhetoric and Its Denial in Legal Discourse, 76 VA. L. REV. 1545, 1546, 1556–57,
1572 (1990) (discussing lawyers’ use of practical reasoning to make legal arguments). Also of
note is an anthology that acknowledges the turn toward rhetorical analysis found in some of
the more recent work in constitutional law. See INTERPRETING LAW AND LITERATURE, supra
347.
425 See, e.g., VERNA C. CORGAN, CONTROVERSY, COURTS AND COMMUNITY: THE RHETORIC OF
JUDGE MILES WELTON LORD 1–2 (1995) (offering a rhetorical analysis of the opinions of a
federal judge).
426 For core relevant works by Perelman, see CHAIM PERELMAN, JUSTICE, LAW AND
ARGUMENT: ESSAYS ON MORAL AND LEGAL REASONING (1980); CHAIM PERELMAN & L.
OLBRECHTS-TYTECKA, THE NEW RHETORIC: A TREATISE ON ARGUMENTATION (1969); CHAIM
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important model for his work on rhetoric.427
To acknowledge that legal reasoning is a form of practical reason
need not undermine the traditional claim of the rule of law as
independent and objective.
Rather, what needs to be reconceptualized today is the meaning of “independence” and
“objectivity” in the context of thinking about legal reasoning and
how law is taught in the classrooms of our nation’s law schools. In
the future we shall have to study Aristotle, Perelman, and Toulmin
carefully and at length, to fully understand the character and
content of what we do as lawyers. Moreover, the time is long
overdue for us to invite the academic rhetoricians who inhabit the
speech departments of many colleges and universities, but whose
work is rarely cited in the academic legal literature, to join us in
this conversation. To take their work seriously in our own effort to
come to recognize legal argument as a rhetorical art and to practice
it in a rigorous and faithful way in service of the vision of justice
that law claims as its own will require courage, as well as humility,
given the post-modern setting in which this work will be done.
Ultimately, we shall need to take the call of the text for
interpretation, and the claims of justices and scholars to interpret
the text in a particular way, as an opportunity to delve more deeply
into rhetorical analysis and critique in the study of law in order to
hone our skills as lawyers engaged in the practice of applied
rhetoric to serve the common good.428
PERELMAN, THE REALM OF RHETORIC (1982); CHAIM PERELMAN, THE IDEA OF JUSTICE AND
THE PROBLEM OF ARGUMENT (1963). See also ALAN G. GROSS & RAY D. DEARIN, CHAIM
PERELMAN (2003) (commenting on the work of Perelman); Symposium, A Tribute to Chaim
Perelman, 12 N. KY. L. REV. 391–593 (1985) (commenting on the work of Perelman).
427 For core relevant works by Toulmin, see STEPHEN TOULMIN, RETURN TO REASON (2001);
STEPHEN TOULMIN, COSMOPOLIS: THE HIDDEN AGENDA OF MODERNITY (1990); STEPHEN
TOULMIN, THE ABUSE OF CASUISTRY: A HISTORY OF MORAL REASONING (1988); STEPHEN
TOULMIN, THE USES OF ARGUMENT (1958).
428 In this vein we might well embrace the spirit of Frederick Douglass. See supra note
387.