SUBSTANTIVE DUE PROCESS AND DISCOURSEETHICS: RETHINKING FUNDAMENTALRIGHTS ANALYSIS

intent."). 197 Washington v. Glucksberg, 521 U.S. 702, 716 (1997); see also Reno v. Flores, 507 U.S. 292, 302 (1993) (describing the right of immigrant minors to be temporarily release from state custody into the custody of a responsible adult versus the right to be free of physical restraint); Moore v. East City of 13 WASH. & LEE J.C.R. & SOC. JUST. 1 (2006) seeking to engage in previously unprotected activity. Such activity, defined narrowly, is by definition not part of tradition; if the right were already traditionally protected, the litigant would have no need to be in court. 198 Justice Scalia's approach, by immediately and exclusively defining the claimed right and relevant tradition narrowly, prevents judges from giving effect to the People's changing definitions of rights because these changes are inherently not rooted in tradition. The protection of the status quo is antithetical to the judiciary's duty to properly balance the Constitutional principles of liberty and equality, and abdicates the institutional role the Constitution assigns to the judiciary. 199 This was the same mistake the Lochner court made.2°° For these reasons, I answer Professor Chemerinsky's question "[ills it a sufficient justification for the rejection of a constitutional right that it has not been traditionally safeguarded?" in the negative under Justice Scalia's approach.20' As Justice Souter pointed out in his concurrence in Glucksberg, 2 a survey of modem due process cases, starting with Griswold v. Connecticut, bears out that narrow definitions of asserted rights and extant traditions stifles judicial protection of rights.20 3 In Griswold, the Appellants were convicted under a statute prohibiting any person to give information, instruction, or medical advice about contraceptives, or the contraceptive itself to anyone else.204 The Appellants claimed that this statute violated the Fourteenth Amendment. Reversing their conviction, the Court found that "specific guarantees in the Bill of Rights have penumbras, formed by Cleveland, 431 U.S. 494, 506 (1977) (finding that a housing ordinance that expressly selects certain categories of relatives who may live together and declares that others may not is unconstitutional). 198 See Michael H. v. Gerald D., 491 U.S. 110, 140-41 (1989) ("[T]he plurality acts as if the only purpose of the Due Process Clause is to confirm the importance of interests already protected by a majority of the States.") (Brennan, J., dissenting); see also Chemerinsky, supra note 171, at 903 ("[UIncreasingly, the Court uses tradition as a limit on the Constitution's meaning."). 199 See supra pp. 2-3; see also Spitko, supra note 58, at 1353 ("The fourteenth amendment was meant to protect minorities from oppression by the majority."). 200 Supra, Part Ill. 201 Chemerinsky, supra note 171, at 907. 202 See Glucksberg, 521 U.S. at 765 (Souter, J., concurring) ("[Tihe balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing." (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting))). 203 See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (finding that the Connecticut law forbidding use of contraceptives unconstitutionally intruded upon the right of marital privacy because such a relationship was "intimate to the degree of being sacred"). In Griswold, defendants appealed convictions of violating the Connecticut birth control law. Id. at 480. The Appellants claimed that this statute violated the Fourteenth Amendment. Id. Reversing their conviction, the Court found that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Id. at 484. These various guarantees create zones of privacy protected from governmental intrusion, because without the peripheral rights of privacy, "the specific rights would be less secure." id. 204 Id. at 480. SUBSTANTIVE DUE PROCESS emanations from those guarantees that help give them life and substance. 205 These various guarantees create zones of privacy protected from governmental intrusion, because without the peripheral rights of privacy, "the specific rights would be less secure." 2°6 Finally, the Court ruled that the criminal statute involved concerned and limited a relationship lying within one of these zones of privacy, the marital relationship. Because such a relationship was "intimate to the degree of being sacred," the statute improperly limited a "right of privacy older than the Bill of Rights." 20 7 However, there was a strong tradition in the Nation's history of prohibiting the use of contraceptives. 0 8 Although Justice Scalia, in Michael H., argued that he could have upheld the decision in Griswold because the statutes had not been recently enforced and did not represent a "still extant" tradition, 2°9 the facts of the case before him belie these very claims. 210 The litigants were in court precisely because the statutes prohibiting the use of contraceptives had been enforced. Faithful adherence to Justice Scalia's approach calls for overturning Griswold. Nor could Justice Scalia have struck down the anti-miscegenation law involved in the 1967 case Loving v. Virginia.21t Had the Court identified the right involved at its most specific level, the right to interracial marriage, and ended there, the Nation's traditions and history of prohibiting such marriages would have forced the Court to uphold the law. Instead, the Court recognized that the People no longer accepted such limitations on marriage (only 16 states still prohibited miscegenation), defined the right involved broadly as the right to marriage, and struck the law down.2 12 Justice Scalia's approach would have likewise reversed the decision 205 Id. at 484. 206 Id. at 483. 207 Id. at 486. 208 See id. at 498 (Goldberg, J., concurring) (describing the state interest in safeguarding marital