This Article examines the role that tradition and traditionalism have long played and continue to play in the United States Supreme Court’s and federal courts of appeals’ interpretation and application of the Due Process Clauses of the United States Constitution, and the judicial determination that a claimed right is or is not a fundamental right that cannot be abridged absent a compelling state interest. Traditionalism-understood as a method of constitutional interpretation and the judicial recognition of only those rights deeply rooted in the nation’s history and tradition, or implicit in the concept of ordered liberty-has been touted as an objective approach that reaches legal conclusions by applying neutral rules to verifiable evidence. On that view, traditionalism constrains judicial discretion, and impedes the introduction of a judge’s subjective political and moral judgments into the due process calculus and fundamental rights determination. This Article contests that view and argues that traditionalism cloaks subjective and discretionary judging in the garb of a purportedly objective and discretion limiting methodology. As argued herein, traditionalism is discretionary in at least three respects: (1) a judge selects traditionalism over and instead of other interpretive methodologies and jurisprudential approaches; (2) a traditionalist judge is free to frame the legal inquiry and to define the level of generality at which a claimed right is characterized; and (3) a traditionalist judge discretionarily determines the time frame within which she will look for evidence and confirmation that a claimed fundamental right did or did not-does or does not-exist. These decision points, necessarily involving a judge’s discretion and subjective viewpoints and value judgments, belie the posited neutrality and objectivity of traditionalism. Recognition of this reality is essential to an informed understanding of the mechanics of the substantive due process inquiry.
Ronald Turner, On Substantive Due Process and Discretionary Traditionalism, 66 SMU L. Rev. 841 (2013)