Dumbo's feather: an examination and critique of the Supreme Court's use, misuse, and abuse of tradition in protecting fundamental rights.

AuthorKrotoszynski, Ronald J., Jr.

ABSTRACT

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-than-real constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In this Article, Professor Krotoszynski argues that substantive due process would benefit immeasurably if the Dumbo's feather of tradition could be reworked into something resembling an operational test that not only serves as a justification for results that a majority of the Justices might like to reach, but also as a brake against results that a majority of the Justices might like to reach--but that tradition, or consensus, does not yet sanction. In particular, Professor Krotoszynski argues that state counting could provide an important means of cabining judicial discretion in substantive due process cases, by making the application of the tradition test turn less on subjective considerations. A carefully theorized and operationalized effort at state counting might provide a useful way of identifying and protecting the traditions from which we have broken, which are no less deserving of constitutional protection than those traditions from which we have come. A commitment to maintain tradition as a living concept deserves no less.

TABLE OF CONTENTS INTRODUCTION I. THE EMERGENCE OF TRADITION AS THE LYNCHPIN OF SUBSTANTIVE DUE PROCESS DOCTRINE A. Early Use of Tradition: The Incorporation Debates B. Defining Tradition: A Brief Overview of Five General Approaches II. EXPLORING THE SUPREME COURT'S METHODOLOGIES FOR APPLYING THE TRADITION TEST A. Reviewing English and Early American Legal Sources: The "Tradition Ascertained Through Original Intent" Approach B. Counting States C. Using Past Precedents as Proof of an Existing Tradition D. Using Foreign Law To Inform Contemporary Tradition E. Dispensing with the Tradition Requirement Entirely III. STATE COUNTING, OR CONSENSUS, AS h MEANS OF DEFINING TRADITION A. State Counting in the Specific Context of the Eighth Amendment B. State Counting in General Substantive Due Process Cases IV. AMENDING THE CONSTITUTION OUTSIDE THE FOUR CORNERS OF ARTICLE V A. Tradition Reconsidered as a Means of Limiting Government Power To Abrogate Individual Autonomy B. The Theory Applied: Lawrence as an Example of Bottom Up Federalism 1. The Majority Opinion: The State Counting Methodology in Action 2. The Dissent's Attempt To Turn Back the Clock to Palko/Twining 3. The Real Reason for the Lawrence Decision C. From Bowers to Lawrence: Social Change and De Facto Amendments Through State Government Practice 1. The BMW v. Gore Line of Cases Lacks a Tradition-based Predicate and Oversteps the Proper Limits of Substantive Due Process 2. Foreign Law Should Play a Very Limited Role in Substantive Due Process Adjudication CONCLUSION INTRODUCTION

In its Lawrence decision, the U.S. Supreme Court invalidated a Texas statute that prohibited same-sex intimacy by consenting adults in the privacy of the home. (1) In doing so, it reversed its earlier decision in Bowers v. Hardwick (2) because "[i]ts continuance as precedent demeans the lives of homosexual persons." (3) The Lawrence majority opinion made an extended argument for the relevance of more recent social attitudes--and legal treatment--of sexual minorities as opposed to more long-standing, or even ancient, traditions. (4)

The majority's concern with establishing a tradition-based argument for invalidating antisodomy laws should not be surprising. Indeed, the Supreme Court consistently has identified "tradition" as the touchstone for its substantive due process jurisprudence. In order for the Court to recognize an unenumerated, yet nevertheless fundamental, right, the Justices must consider whether the right is deeply rooted in Anglo-American tradition such that "neither liberty nor justice would exist" without it. (5) The test sounds decidedly more concrete in theory than it actually seems to be in practice. (6)

Indeed, the Supreme Court has been remarkably inconsistent, even sloppy, in its application of the tradition test. The Court has used various and sundry methodologies to ascertain tradition, including reviewing Anglo-American legal practices and the common law in the states, counting the number of states that maintain contemporary regulations regarding a particular behavior, relying solely on prior precedents, and considering how foreign nations approach the topic. (7) Moreover, in some cases, the Supreme Court has found a fundamental right in the absence of a tradition of recognizing the right at issue. (8) No single means of operationalizing the tradition test has enjoyed consistent application and observance.

If tradition is to provide a persuasive rationale for the recognition and protection of unenumerated rights, the Supreme Court must take greater care in enunciating and applying the test. In the absence of clearer rules and guidelines for applying the tradition test, it does little to counter the charge that substantive due process has more to do with the subjective moral preferences of the Justices than with any effort at principled constitutional adjudication. (9)

In the Walt Disney classic animated feature Dumbo, the young elephant Dumbo had a remarkable gift: his supersized ears enabled him to fly. Being different from one's peers is difficult at any age, but it is particularly hard for the very young. Accordingly, Dumbo attempted to hide this talent and to disclaim his ability to use his ears to achieve flight.

In order to convince Dumbo to use his talents, some local birds gave Dumbo a "magic feather" that would "permit" him to fly. Armed with his magic feather, Dumbo achieved flight without fear or undue retrospection. By shifting responsibility for his ability to fly from his own innate gifts to the magic feather, Dumbo adroitly avoided the cognitive dissonance associated with the realization that his otherness permitted him to achieve what no other pachyderm had done before him: natural flight unaided by any mechanical device.

Of course, Dumbo could fly because he had big ears--ears big enough to generate some serious lift forces. The magic feather had nothing to do with his ability to defy gravity. Dumbo needed the magic feather because he had difficulty accepting his gift and its full implications for his place in both the elephant and larger circus community.

At least arguably, the Justices of the Supreme Court have a great deal in common with Dumbo. Although possessed with an almost unlimited ability to nullify legislative and executive action, (10) whether undertaken at the state or federal level, the Justices prefer to think of their power of judicial review as relatively mundane. Individually and collectively, the Justices attempt to find ways of denying the full scope of their powers--both to themselves and to the community at large. (11) The Supreme Court's use of tradition in setting the metes and bounds of fundamental rights provides an excellent illustration of this phenomenon.

Like Dumbo's feather, the tradition limitation provides a more-apparent-than-real constraint; the ability to exercise judicial review to disallow statutes or executive actions really is not a function of whether a law or action transgresses "tradition." Tradition is a label given to support a result, but is not really the cause in fact of the result. To put the matter slightly differently, in all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. It might be possible to develop and enforce a principled approach to limiting the scope of judicial review to protect fundamental rights. Even so, the Justices have shown little interest in either defining or following such limits. Instead, the application of the tradition test remains almost entirely an ad hoc affair. (12)

Moreover, the operational difficulties associated with the Supreme Court's use of tradition in fundamental rights adjudication are legion. The Justices have never specified the level of generality at which one should attempt to ascertain "tradition." (13) For example, if a judge asks whether homosexual sodomy has enjoyed legal protection, the clear answer is, at least prior to the 1960s, "no." Before 1961, most states maintained formal legal proscriptions against sodomy, whether of a same-sex or opposite-sex variety. (14)

If a judge reframes the question, however, and accesses "tradition" at a higher level of generality, the answer becomes less obvious. The number of prosecutions and convictions for sodomy involving consenting adults, in private, was minuscule. (15) Most sodomy convictions involved a prosecutor invoking the sodomy statute because she could not establish the elements of common law rape. (16) When states adopted sexual assault statutes, even these prosecutions largely disappeared from the scene. (17) Thus, if "tradition" means not merely "law in books," but rather "law as applied in practice," different answers to the question of legal tradition regarding sodomy appear not merely possible, but likely.

A more relevant test might involve inquiry into the ubiquity of the practice itself, independent of the existence of formal proscriptions against the practice or the enforcement of such proscriptions. To what extent, over time, have Americans actually engaged in sodomy? Under this approach, the Kinsey Reports (18) would be more immediately relevant to substantive due...

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