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.

• Author: Vogel, Howard J.

1. INTRODUCTION

   Few judges are as revered in American legal history as Benjamin Nathan Cardozo (1) (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 opinions (5) as well as his Storrs Lectures on the role of creativity in the judicial process delivered at Yale in 1921 (6) 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 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 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 law as a rhetorical art and the content and character of legal education.

2. 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 Palko (17) 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 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...