Due process traditionalism.

• Author: Sunstein, Cass R.

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the Due Process Clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive; and even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own. But the rule-consequentialist defense depends on controversial and probably false assumptions about the likely goodness of traditions and the institutional incapacities of judges.

TABLE OF CONTENTS INTRODUCTION I. MANY MINDS TRADITIONALISM A. The Test of Numbers 1. Prejudice as "Latent Wisdom" 2. Three Problems B. The Test of Time 1. The "Grown Morals of Tradition" 2. Mechanisms and Criteria C. Democratic Traditionalism II. TRADITIONALISM AS A SECOND-BEST SOLUTION A. First-Best, Second-Best B. Three Problems 1. Traditions Can Be Swords 2. Traditions Unleashed 3. First-Best? III. RULE-CONSEQUENTIALISM CONCLUSION INTRODUCTION

The Supreme Court and individual Justices have often suggested that under the Due Process Clause, rights qualify as such only if they can claim firm roots in long-standing traditions. (1) In Washington v. Glucksberg, for example, the Court appeared to settle on a kind of due process traditionalism, captured in the view that long-standing cultural understandings are both necessary and sufficient for the substantive protection of rights under the Due Process Clause. (2) On this view, no interest qualifies for protection under that clause if it lacks historical credentials; and interests that can claim such credentials deserve protection for that very reason.

Due process traditionalism is hardly novel. It can itself claim firm roots in American traditions. In his dissenting opinion in Lochner v. New York, Justice Holmes wrote that the Due Process Clause would be violated only if "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." (3) In the same vein, Justice Frankfurter explicitly urged that in assessing due process questions, courts should ask whether proceedings "offend those canons of decency and fairness which express the notions of justice of English-speaking peoples." (4) In important cases, the Court has sought to cabin the reach of "substantive due process" by asking whether the relevant rights are firmly based on long-standing cultural commitments, rather than on novel ones, or on the commitments of particular litigants and particular judges. (5) In Glucksberg, for example, the Court appeared to entrench due process traditionalism by asking, very simply, whether the interest in question has long been protected by social practices. (6)

Importantly, those who embrace due process traditionalism do not claim that judicial practices, as they develop over time, deserve support; they offer no plea for common law constitutionalism (7) or for a strong rule of stare decisis. (8) On the contrary, their focus is on the claims of the long-standing practices of "our people," (9) not of our judges. In fact, some due process traditionalists insist that judicial decisions that construct rights with reference to legal precedents in common law fashion are illegitimate and should be overruled. (10)

Although due process traditionalism has played a large role in the Court's decisions, it is highly controversial. Indeed, the major fault line within the Court has long been between those who seek to limit the reach of the Due Process Clause to rights that long-standing traditions recognize as such, and those who believe either that evolving traditions are what matter (11) or that the Court legitimately brings its own moral judgments to bear on substantive due process questions. (12) A decade after Glucksberg, it is clear that the Court's decision failed to entrench due process traditionalism. In striking down bans on same-sex relations, Lawrence v. Texas explicitly relies on evolving judgments, rather than long-standing practices. (13)

But the battle between traditionalist and more rationalist or critical approaches, requiring courts to scrutinize social practices, has yet to be authoritatively resolved. The Court remains sharply divided on the proper role of tradition, (14) which continues to play a large role in lower court decisions. (15) Notwithstanding Lawrence, due process traditionalism often has a firm hold on reasoning within the courts of appeals. (16)

Due process traditionalists have yet to explain exactly why traditionalism might be an appealing approach to the Due Process Clause. In this Article, ! explore three families of explanations. The first and most ambitious points to the fact that traditions have been supported by many minds across long periods of time. The second sees traditionalism as a second-best substitute for more radical restrictions on substantive uses of the Due Process Clause. The third justifies traditionalism on rule-consequentialist grounds, on the theory that traditionalism is likely to produce fewer errors, and less serious errors, than the plausible alternative approaches.

The first explanation, which I shall call "many minds traditionalism," has intuitive appeal insofar as it attempts to anchor constitutional rights in practices that have wide and deep support. Many minds traditionalism has been defended in different ways by Edmund Burke (17) and Friedrich Hayek, (18) and under certain conditions, these defenses are more than plausible. Burke's own account was largely aggregative, suggesting that numerous people have signed onto traditions and therefore given them epistemic credentials. (19) Hayek's variety was evolutionary, suggesting that traditions have stood the test of time and are thus likely to serve valuable social functions. (20) On both the aggregative and evolutionary accounts, the persistence of a practice across many minds and many years makes it more likely to be correct, wise, or good. The two accounts might even be developed into a democratic defense of traditionalism, on the ground that participants in traditions are "voters," to whom judges ought to defer. In the end, however, I conclude that neither the aggregative nor the evolutionary account adequately justifies due process traditionalism, and also that the democratic defense runs into serious objections.

If ambitious accounts of this kind fail, it might nonetheless be possible to defend due process traditionalism as a kind of second-best solution for those who would like to reject substantive due process altogether, but who accept the constraints of stare decisis. Suppose that the Due Process Clause is best seen as purely procedural, (21) or that courts should approach legislation with a strong presumption of validity. (22) If so, due process traditionalism can be understood as a precedent-preserving and indirect way of producing the results that would follow from either a procedural approach to the clause or a presumption of validity. But there are two problems with this defense of due process traditionalism. The first is that it depends on a controversial judgment about what counts as a first-best approach. The second is that it might turn out to be a wholly inadequate way of accomplishing the supposedly first-best goals.

A third justification for due process traditionalism is rule-consequentialist. The simple idea here is that whatever its faults, due process traditionalism produces better results than the likely alternatives. If judicial judgments about the substantive content of liberty were entirely unreliable, due process traditionalism might look plausible and even attractive by comparison. Traditions may not be especially good, but if they are not so bad, it might be better to tether judges to past practices than to ask them to think about the nature of "liberty" on their own. This conclusion depends on normative and empirical assumptions that are probably wrong. In the end, however, it points to the most promising basis for due process traditionalism. At the very least, it helps to show what those who disagree about due process traditionalism are disagreeing about.

My principal goal is to sort out that disagreement, rather than to persuade anyone to accept or to reject due process traditionalism. If traditions are very good, and if judges are very bad at identifying the ingredients of "liberty," the argument for due process traditionalism is quite strong. In a society in which traditions are very bad, and judges are very good at specifying the content of "liberty," due process traditionalism would not be easy to defend. We should be able to agree on these propositions even if we disagree on whether due process traditionalism makes sense for the contemporary United States.

In the end, I do not believe that courts should accept due process traditionalism. In my view, Glucksberg itself was...