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

89 Pages Posted: 3 Apr 2013  

Howard J. Vogel

Hamline University - School of Law

Date Written: January 1, 2007

Abstract

This article offers a critical examination of controversial substantive due process cases decided in the last half of the 29th Century in which appear references to Justice Cardozo’s famous notions on the nature and content of substantive due process set out in Palko v. Connecticut (1937). The author argues 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, ultimately such reasoning is an example of public rhetoric that involves choice. This argument calls people to reframe, rather than abandon, which it means to say that the rule of law is independent and objective as a central tenet of the Anglo-American legal tradition.

Keywords: Justice Cardozo, Palko, ordered liberty, substantive due process, rhetoric, reasoning

JEL Classification: K00, K4, K41, K42

Suggested Citation

Vogel, Howard J., 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 (January 1, 2007). Albany Law Review, Vol. 70, p. 1473, 2007. Available at SSRN: https://ssrn.com/abstract=1929585

Howard J. Vogel (Contact Author)

Hamline University - School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

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