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Due Process Traditionalism

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

March 2007

University of Chicago Law & Economics, Olin Working Paper No. 336
University of Chicago, Public Law Working Paper No. 158

In many cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and they might have joined a cascade. An alternative defense sees due process traditionalism as a second-best substitute for two preferable alternatives: a purely procedural approach to the due process clause, and an approach that gives legislatures the benefit of every reasonable doubt. But it is not clear that in these domains, the first-best approaches are especially attractive. Even if they are, the second-best may be an unacceptably crude substitute. The most plausible defense of due process traditionalism operates on rule-consequentialist grounds, with the suggestion that even if traditions are not great, they are often good, and judges do best if they defer to traditions rather than attempting to specify the content of "liberty" on their own. But the rule-consequentialist defense depends on controversial assumptions about the likely goodness of traditions and the institutional incapacities of judges.

Number of Pages in PDF File: 34

Keywords: traditions, substantive due process, cascades, Condorcet Jury Theorem, Hayek

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Date posted: March 26, 2007  

Suggested Citation

Sunstein, Cass R., Due Process Traditionalism (March 2007). University of Chicago Law & Economics, Olin Working Paper No. 336; University of Chicago, Public Law Working Paper No. 158. Available at SSRN: https://ssrn.com/abstract=975538 or http://dx.doi.org/10.2139/ssrn.975538

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Cass R. Sunstein (Contact Author)
Harvard Law School ( email )
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Harvard University - Harvard Kennedy School (HKS) ( email )
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