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Published online by Cambridge University Press: 13 January 2009
In recent years many people have suggested that rights come from traditions. More particularly, many people interested in American constitutional law have said that constitutional rights should be developed with close reference to American traditions. In this essay, I mean to challenge these claims. I argue that the enterprise of defining rights, including constitutional rights, should not be founded on an inquiry into tradition. Traditions should be assessed, not replicated. I also try to unpack some of the complexities in the idea that rights should be based on traditions.
The topic is highly relevant to the debate over “communitarianism.” Manycommunitarians appear to be traditionalists, at least implicitly; they are concerned to defend social practices against abstract, acontextual claims about what is to be done, or about “rights.” It is important to ask why and when communitarians believethat a community's practices deserve insulation from rights–based claims. Often the best or most interesting answer has a Burkean dimension. It involves the extent to which a community—perhaps a local community resisting national efforts, perhaps a nation resisting international goals—owes its practices to long traditions that, precisely because of their longevity, might seem to make special sense. Ideas of this sort might be thought to have special strength when we think about rights in general or about constitutional rights in particular.
1 See the discussion of Antonin Scalia in Section V below.
2 See Glendon, Mary Ann, Rights-Talk (New York: The Free Press, 1991).Google Scholar
3 There are complex issues in the background here. It may well be correct to grant rights to people who do not understand those particular rights, or even rights in general. People accustomed to systematic deprivation because of (for example) sex inequality should still have a right to sex equality, even if the notion of sex equality seems unintelligible to them.
4 I am dealing here with a particular species of formalism; some species are quite honorable. See Schauer, Frederick, Playing by the Rules (Oxford: Oxford University Press, 1992).Google Scholar
5 In using the term “rights–conferring,” I do not mean to deny that some people in the founding period thought that the Constitution acknowledged preexisting rights. See in this regard the Ninth Amendment, which says that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is a sharp dispute over how to interpret this amendment. See Stone, Geoffrey R. et al., Constitutional Law, 2d ed. (Boston: Little, Brown and Co., 1991,), ch. 6.Google Scholar
6 I think that formalism underlies, e.g., Bork, Robert, The Tempting of America (New York: The Free Press, 1989);Google Scholar see Sunstein, Cass R., The Partial Constitution (Cambridge: Harvard University Press, 1993), ch. 4.Google Scholar
7 Lochner V. New York, 198 U.S. 45, 56 (1905) (Holmes, J., dissenting).Google Scholar
8 See, e.g., Connecticut, Palko V., 302 U.S. 319 (1937).Google Scholar
9 Griswold V. Connecticut, 381 U.S. 479 (1965,).Google Scholar
10 Eisenstadt V. Baird, 405 U.S. 438 (1972).
11 Roe V. Wade, 410 U.S. 113 (1973).
12 Bowers V. Hardwick, 478 U.S. 186 (1986).
13 Michael H. V. Gerald D., 109 S.Ct. 1333 (1989).
14 See Cruzan V. Director, 110 S.Ct. 2841 (1990).
15 Ibid., p. 2849 (O'Connor, J., concurring).
16 See Putnam, Hilary, Reneiving Philosophy (Cambridge: Harvard University Press, 1992);Google Scholar and Searle, John, The Construction of Social Reality (New York: The Free Press, 1995).Google Scholar
17 See Stone et al., Constitutional Law, ch. 6.
18 For some notes, see Sunstein, Cass R., “Liberal Constitutionalism and Liberal Justice,” Texas Law Review, vol. 72 (1993), p. 305.Google Scholar
19 An excellent, moderate discussion is David Strauss, Common Law Constitutionalism (forthcoming).
20 See Bickel, Alexander, The Least Dangemus Branch (New Haven: Yale University Press, 1965).Google Scholar
21 Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971).Google Scholar
22 See Sunstein, Cass R., “On Analogical Reasoning,” Harvard Law Review, vol.106 (1993), p. 421;CrossRefGoogle Scholar and Sunstein, Cass R., “Political Conflict and Legal Agreement,” The Tanner Lectures in Human Values (forthcoming in 1996).Google Scholar
23 See Strauss, Common Law Constitutionalism.
24 Lochner v. New York, 198 U.S. 45 (1905).
25 See Sunstein, The Partial Constitution (supra note 6), ch. 2; Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1976);Google Scholar and Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1981).Google Scholar
26 See Ferguson v. Scrupa, 372 U.S. 726 (1963).
27 More specifically: Substantive due process is a linguistically difficult notion. By an ordinary reading of its terms, the due process clause is procedural, not substantive. That is, the clause seems to require procedures of a certain kind, rather than a judicial evaluation of the substance of legislation. A better constitutional foundation for substantive protection of important interests would have been the privileges and immunities clause, also found in the Fourteenth Amendment. The Supreme Court concluded in an early case that this clause added nothing to the original Constitution. See The Slaughterhouse Cases, 83 U.S. 36 (1873). This conclusion is most doubtful; but aggressive use of the privileges and immunities clause would have left open many of the issues discussed here: How do we know what interests count as “privileges and immunities”? Perhaps tradition would have been a key way of answering this question. I cannot discuss these complex issues here. I am attempting to explain the origins of the use of tradition under the due process clause, rather than to reach a final judgment on the legitimacy of substantive due process or what might have been, in a different form, “substantive privileges and immunities.”
28 See Ackerman, Bruce A., We the People (Cambridge: Harvard University Press, 1992), vol. 1.Google ScholarPubMed
29 Perhaps the consequences remain damaging even today. I do not mean to deny this possibility, but simply to point to the complexity of traditionalism in the context of changed norms.
30 Hence the various criticisms put forward by Laurence Tribe and Michael Dorf seem to me far from decisive; see Tribe, and Dorf, , Reading the Constitution (Cambridge: Harvard University Press, 1990).Google Scholar
31 See Balkin, Jack, “Tradition, Betrayal, and the Politics of Deconstruction,” Cardozo law Review, vol. 11 (1993), p. 1613.Google Scholar
32 See Bickel, The Least Dangerous Branch. I am grateful to Michael McConnell for helpful discussion of this point.
33 See Sunstein, The Partial Constitution, ch. 9, for more detail.
