SUBSTANTIVE DUE PROCESS AND DISCOURSEETHICS: RETHINKING FUNDAMENTALRIGHTS ANALYSIS (2006)

intent.). 197 Washington v. Glucksberg, 521 U.S. 702, 716 (1997); see also Reno v. Flores, 507 U.S. 292, 302 (1993) (describing of immigrant minors to be temporarily release from state custody into custody of a responsible adult versus 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 were already traditionally protected, litigant would have no need to be in court. 198 Justice Scalia's approach, by immediately and exclusively defining claimed and relevant tradition narrowly, prevents judges from giving effect to People's changing definitions of rights because these changes are inherently not rooted in tradition. The protection of status quo is antithetical to judiciary's duty to properly balance Constitutional principles of liberty and equality, and abdicates institutional role Constitution assigns to judiciary. 199 This was same mistake Lochner court made.2°° For these reasons, I answer Professor Chemerinsky's question [ills it a sufficient justification for rejection of a constitutional that it has not been traditionally safeguarded? in 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 traditions stifles judicial protection of rights.20 3 In Griswold, Appellants were convicted under a statute prohibiting any person to give information, instruction, or medical advice about contraceptives, or contraceptive itself to anyone else.204 The Appellants claimed that this statute violated Fourteenth Amendment. Reversing their conviction, Court found that guarantees in 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 only purpose of Due Process Clause is to confirm importance of interests already protected by a majority of States.) (Brennan, J., dissenting); see also Chemerinsky, supra note 171, at 903 ([UIncreasingly, Court uses tradition as a limit on 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 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 balance struck by this country, having regard to what history teaches are traditions from which it developed as well as 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 Connecticut law forbidding use of contraceptives unconstitutionally intruded upon of marital privacy because such a relationship was intimate to degree of being sacred). In Griswold, defendants appealed convictions of violating Connecticut birth control law. Id. at 480. The Appellants claimed that this statute violated Fourteenth Amendment. Id. Reversing their conviction, Court found that guarantees in Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and Id. at 484. These various guarantees create zones of privacy protected from governmental intrusion, because without 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 peripheral rights of privacy, the specific rights would be less secure. 2°6 Finally, Court ruled that criminal statute involved concerned and limited a relationship lying within one of these zones of privacy, marital relationship. Because such a relationship was intimate to degree of being sacred, statute improperly limited a right of privacy older than Bill of Rights. 20 7 However, there was a strong tradition in Nation's history of prohibiting use of contraceptives. 0 8 Although Justice Scalia, in Michael H., argued that he could have upheld decision in Griswold because statutes had not been recently enforced and did not represent a extant tradition, 2°9 facts of case before him belie these very claims. 210 The litigants were in court precisely because statutes prohibiting use of contraceptives had been enforced. Faithful adherence to Justice Scalia's approach calls for overturning Griswold. Nor could Justice Scalia have struck down anti-miscegenation law involved in 1967 case Loving v. Virginia.21t Had Court identified involved at its most specific level, to interracial marriage, and ended there, Nation's traditions and history of prohibiting such marriages would have forced Court to uphold law. Instead, Court recognized that People no longer accepted such limitations on marriage (only 16 states still prohibited miscegenation), defined involved broadly as to marriage, and struck law down.2 12 Justice Scalia's approach would have likewise reversed decision 205 Id. at 484. 206 Id. at 483. 207 Id. at 486. 208 See id. at 498 (Goldberg, J., concurring) (describing state interest in safeguarding marital