Tradition as past and present in substantive due process analysis

Duke Law Journal

Volumn 62, Issue 3, 2012, Pages 535-578

  Bartlett, Katharine T ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 84872238533     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (131)

1. Lawrence v. Texas, 539 U.S. 558, 593 (2003) (Scalia, J., dissenting) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)) (internal quotation marks omitted).
2. United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting) (emphasis omitted).
3. See infra notes 73, 76-97 and accompanying text
4. See infra notes 74-75 and accompanying text
5. See infra Part II
6. Martin Krygier, Law as Tradition, 5 LAW & PHIL. 237, 240 (1986).
7. See Joseph R. Gusfield, Tradition and Modernity: Misplaced Polarities in the Study of Social Change, 72 AM. J. SOC. 351, 357-58 (1967).
8. See Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS. L. REV. 303, 305 ("[T]he primary impulse for social change seeks reconciliation between the familiar and an evolving sense of what is just and good, rather than a radical break from the past.").
9. See, e.g., Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 SAN DIEGO L. REV. 823, 823 (1986) ("[O]riginal intent is the only legitimate basis for constitutional decisionmaking.").
10. Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 631 (1993) ("To interpret a document simply means to attempt to determine what its author or authors intended to convey.").
11. Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1020 (1992) ("Originalism is a virtual axiom of our legal-political system, necessary to distinguish the judicial from the legislative function.").
12. The terms are used in Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 356, 394 (2006).
13. For other "dynamic" theories of interpretation, see Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980).
14. Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989).
15. See, e.g., Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. REV. 619, 688 (1994) (advocating for an evolutionary approach to constitutional interpretation based heavily on precedent).
16. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 891 (1996) ("The central rational traditionalism idea is that one should be very careful about rejecting judgments made by people who were acting reflectively and in good faith, especially when those judgments have been reaffirmed or at least accepted over time.").
17. See Larry Kramer, Fidelity to History-And Through It, 65 FORDHAM L. REV. 1627, 1640 (1997) ("To assume that values articulated at the Founding should apply unchanged is to overlook the ways in which those values. .. may themselves have changed.").
18. Lawrence v. Texas, 539 U.S. 558, 572 (2003) ("[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)) (alteration in original)) (internal quotation marks omitted)).
19. See, e.g., United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting) (stating that the Court's function in terms of identifying suspect classes and fundamental rights is only to "prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on [its] own authority, progressively higher degrees").
20. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3058 (2010) (Scalia, J., concurring) (stating that rights that are not recognized by the Court "are left to be democratically adopted or rejected by the people"); Virginia, 518 U.S. at 567 (Scalia, J., dissenting) ("The virtue of a democratic system with a First Amendment is that it readily enables people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly."); Bowers, 478 U.S. at 190 (noting that states are free to repeal their laws criminalizing homosexual sodomy).
21. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 117, 124, 125 (1989) (plurality opinion) (reasoning that the California law imposing a conclusive presumption of paternity on the mother's husband is "more than a century old," that "[t]he presumption of legitimacy was a fundamental principle of the common law," and that "nothing in the older sources, nor in the older cases, addressed specifically the power of the natural father to assert parental rights over a child born into a woman's existing marriage with another man").
22. Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
23. Lawrence v. Texas, 539 U.S. 558 (2003).
24. See J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1613, 1616 (1990) (arguing that Justice Scalia treats traditions as coming in "discrete units with discrete boundaries").
25. Lawrence, 539 U.S. at 596 (Scalia, J., dissenting) ("In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws." (quoting Bowers, 478 U.S. at 192-93)).
26. See, e.g., Bowers, 478 U.S. at 195 (majority opinion) ("There should be. .. great resistance to expand the substantive reach of [the Due Process Clause], particularly if it requires redefining the category of rights deemed to be fundamental.").
27. Michael H. v. Gerald D., 491 U.S. 110, 120 (1989) (plurality opinion).
28. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990).
29. See Bowers v. Hardwick, 478 U.S. 186, 190-91, 195 (1986) ("[N]one of the rights announced in those cases bears any resemblance to the [right at issue]. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated. .. ."), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
30. Michael H. v. Gerald D., 491 U.S. 110 (1989).
31. Cruzan, 497 U.S. at 279-80.
32. Lawrence, 539 U.S. at 595-96 (Scalia, J., dissenting); cf. Bowers, 478 U.S. at 215-18 (Stevens, J., dissenting) (finding it "perfectly clear" that certain historical antisodomy statutes would be unconstitutional under the Court's family-privacy precedents).
33. See Michael H., 491 U.S. at 125-30 (plurality opinion) (interpreting the Court's precedents to be inapplicable to a father's assertion of "rights over a child born into a woman's existing marriage with another man").
34. See Cruzan, 497 U.S. at 294-95 (Scalia, J., concurring) (citing prohibitions on assisted suicide and concluding that the petitioner did not have a fundamental right to suicide).
35. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
36. Lawrence, 539 U.S. at 602 (Scalia, J., dissenting).
37. See United States v. Virginia, 518 U.S. 505, 570, 574-75 (1996) (Scalia, J., dissenting).
38. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 293 (1990) (Scalia, J., concurring).
39. Michael H. v. Gerald D., 491 U.S. 110, 123 (1989) (plurality opinion).
40. Troxel v. Granville, 530 U.S. 57 (2000).
41. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010) (citing Duncan v. Louisiana, 391 U.S. 145, 149 (1986)).
42. McDonald, 130 S. Ct. at 3036-42 (majority opinion).
43. Rebecca L. Brown, Tradition and Insight, 103 YALE L.J. 177, 221 (1993) ("Tradition is no longer, if it ever was, the powerful iconic beacon of societal truth, but is more accurately an apologia invoked to defend some predetermined (and unacknowledged) choice.").
44. Robert Post & Reva Siegel, Originalism as Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 569 (2006) (arguing that originalism is a political practice rather than a compelling jurisprudence).
45. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1066 (1990) (arguing that the level of generality of claimed rights in substantive due process analysis is often based on conclusions judges seek to reach).
46. See infra Part II
47. Michael H., 491 U.S. at 141 (Brennan, J., dissenting).
48. United States v. Virginia, 518 U.S. 515, 531 (1996) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973)).
49. This thought is often attributed to Justice Holmes
50. See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897) ("It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.").
51. See, e.g., Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 305 (1990) (Brennan, J., dissenting) (citing common-law tort principles of trespass and battery as evidence that the right to be free from unwanted medical attention is deeply rooted).
52. Michael H., 491 U.S. at 142 (Brennan, J., dissenting).
53. Cruzan, 497 U.S. at 298 (Scalia, J., concurring).
54. Bowers, 478 U.S. at 199, 210 (Blackmun, J., dissenting).
55. Michael H. v. Gerald D., 491 U.S. 110, 123-25 (1989) (plurality opinion).
56. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 314, 320-25 (1990) (Brennan, J., dissenting).
57. For a similar observation, see Pamela S. Karlan, Some Thoughts on Autonomy and Equality in Relation to Ruth Bader Ginsburg, 70 OHIO ST. L.J. 1085, 1086 (2009) ("Justice Ginsburg has continued to resist the temptation to use substantive due process. .. .").
58. See, e.g., Troxel v. Granville, 530 U.S. 57, 59 (2000) (joining Justice O'Connor's plurality opinion); Washington v. Glucksberg, 521 U.S. 702, 789 (1997) (Ginsburg, J., concurring in the judgments) (concurring for essentially the same reasons as Justice O'Connor).
59. See M.L.B. v. S.L.J., 519 U.S. 102, 116-17 (1996) (finding unconstitutional on due process grounds the state's denial of a mother's right to appeal the termination of her parental rights when she could not pay the $ 2,400 record-preparation fee).
60. The conventional analysis is that substantive due process looks backward to protect established individual liberties against what Professor Sunstein calls "short-run departures" or "shortsighted deviations" from tradition, while equal protection looks forward, to invalidate practices, "however deeply engrained and longstanding," that are determined to discriminate against disadvantaged groups
61. Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161, 1163, 1171 (1988).
62. Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1897 (2004).
63. Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 749 (2011) ("The introduction of a third overarching term like 'dignity' that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees.").
64. This convergent view is wholly consistent with an interactive view of past and present that evaluates past norms and practices in light of current commitments, including commitments to equality, and that evaluates present norms and practice in light of the traditions that give them shape and meaning
65. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 382-86 (1985).
66. Gonzales v. Carhart, 550 U.S. 124 (2007).
67. United States v. Virginia, 518 U.S. 515 (1996).
68. For a fuller analysis of Justice Ginsburg's use of history, see Deborah A. Widiss, Note, Re-Viewing History: The Use of the Past as Negative Precedent in United States v. Virginia, 108 YALE L.J. 237, 245-59 (1998).
69. See Michael H. v. Gerald D., 491 U.S. 110, 139 (1989) (Brennan, J., dissenting) ("It is not that tradition has been irrelevant to our prior decisions.").
70. Cf. Olympia J. Snowe, Opinion, How the Public Can Save the Senate, WASH. POST, Mar. 4, 2012 at A23 (describing Senator Olympia Snowe's reasons for leaving the U.S. Senate, including the failure of leaders to find common ground and to live up to the Founding Fathers' intentions for establishing the "greatest deliberative body in history").
71. SHEILA ROWBOTHAM, THE PAST IS BEFORE US: FEMINISM IN ACTION SINCE THE 1960S, at 301 (1989) (arguing that "the future is behind us and. .. the past really is before us").
72. For a discussion of common law and custom as the "extension of a pre-existing series," in which "the agent who extends the series has, in theory, a range of options about the extension of that series," see Frederick Schauer, Pitfalls in the Interpretation of Customary Law, in THE NATURE OF CUSTOMARY LAW 13, 23-24 (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007).
73. A similar concept, discussed by Professor Schauer, is Professor Ronald Dworkin's metaphor for interpretation of the "chain novel." See RONALD DWORKIN, LAW'S EMPIRE 228-38 (1986).
74. See F.A. HAYEK, The Origins and Effects of Our Morals: A Problem for Science, in THE ESSENCE OF HAYEK 318, 318 (Chiaki Nishiyama & Kurt R. Leube eds., 1984) (explaining his view that "cultural evolution operates chiefly through group selection").
75. See Rebecca L. Brown, History for the Non-Originalist, 26 HARV. J.L. & PUB POL'Y 69, 71 (2003) ("The kinds of questions that tend to arise in constitutional interpretation, and on which historical evidence might be helpful, tend not to be the kinds of questions that can aspire to truth.").
76. Professor Jeff Powell makes the case that historical research itself requires the "constant exercise of judgment." H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 660 (1987).
77. See Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959, 979 (2008) ("[S]tatesmanship charges judges with approaching cases so as to facilitate the ability of the legal order to legitimate itself over the long term by. .. expressing social values as social circumstances change and sustaining social solidarity amidst reasonable, irreconcilable disagreement.").
78. DON HERZOG, HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY 22-23 (1980)
79. For a critique of common-law constitutionalism, see generally Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV. 1482 (2007), which argues that common-law constitutionalism is no more rational or efficient than statutes and other sources of law.
80. Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. REV. 63 (2006).
81. None of Professor Conkle's formulations are Burkean, however, in the sense that none of them combine tradition and reasoned judgment; instead, they each accept one version or another of the tradition-change dichotomy
82. See CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 10-11 (1999) ("They decide the case at hand; they do not decide other cases too, except to the extent that one decision necessarily bears on other cases, and unless they are pretty much forced to do so.").
83. Poe v. Ullman, 367 U.S. 497 (1961).
84. The case was abrogated four years later by Griswold v. Connecticut, 381 U.S. 479, 487 (1965).
85. Poe, 367 U.S. at 542 (Harlan, J., dissenting).
86. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 286-87 (1990).
87. Cruzan, 497 U.S. at 331 (Stevens, J., dissenting).
88. Washington v. Glucksberg, 521 U.S. 702 (1997).
89. See Bowers v. Hardwick, 478 U.S. 186, 217 (1986) (Stevens, J., dissenting) ("Society has every right to encourage its individual members to follow particular traditions [relating to] expressing affection for one another and in gratifying their personal desires."), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
90. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).
91. Lawrence, 539 U.S. at 577-78.
92. Bowers, 478 U.S. at 215 (Stevens, J., dissenting).
93. Griswold v. Connecticut, 381 U.S. 479 (1965).
94. Eisenstadt v. Baird, 405 U.S. 438 (1972).
95. Bowers, 478 U.S. at 215-19 (Stevens, J., dissenting).
96. Lawrence, 539 U.S. at 570.
97. See supra text accompanying notes 31-45, 50-57, 61-69
98. Troxel v. Granville, 530 U.S. 57, 67 (2000) (plurality opinion) (emphasis omitted) (quoting WASH. REV. CODE § 26.10.160(3) (1994)) (internal quotation marks omitted).
99. Troxel, 530 U.S. at 65-66 (plurality opinion).
100. See, e.g., Lawrence v. Texas, 539 U.S. 558, 567-72 (2003) (reviewing the history of sodomy regulations in light of the "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex").
101. It is this view of history to which Justice Ginsburg subscribes when she asserts, citing historian Richard Morris, that "[a] prime part of the history of our Constitution. .. is the story of the extension of constitutional rights and protections to people once ignored or excluded." See United States v. Virginia, 518 U.S. 515, 557 (1996).
102. Citing RICHARD B. MORRIS, THE FORGING OF THE UNION, 1781-1789, at 193 (1987).
103. E.g., Adkins v. Children's Hosp., 261 U.S. 525, 560-62 (1923) (striking down a minimum-wage law), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); Lochner v. New York, 198 U.S. 45, 64 (1905) (striking down a work-hour restriction).
104. E.g., West Coast Hotel, 300 U.S. at 397.
105. See, e.g., Berghuis v. Thompkins, 130 S. Ct. 2250, 2267, 2269, 2275, 2278 (2010) (Sotomayor, J., dissenting) ("Today's decision turns Miranda [v. Arizona, 384 U.S. 436 (1966),] upside down.").
106. Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 GEO. L.J. 1, 16-25 (2010) (reviewing Supreme Court precedents "gradually overruling" Miranda).
107. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 132-33, 168 (2007) (cutting back on the abortion right in response to a facial challenge to a federal ban on partial-birth abortions).
108. It is not always clear, of course, which is which. Professors Reva Siegel and Jack Balkin have demonstrated how progressive law reform sometimes simply provides new frameworks within which old inequalities and injustices are maintained. For Professor Siegel's theory of "preservation through transformation,".
109. See Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CALIF. L. REV. 77, 83 (2000).
110. Reva B. Siegel, "The Rule of Love": Wife-Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2175-88 (1996).
111. Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1113 (1997).
112. Similarly, Professor Balkin notes that "in each era people will try to use the logics, rhetorics, and doctrines of equality to preserve power, conserve privilege, and establish greater inequality."
113. JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 143 (2011).
114. Specifically on the argument why progressives who believe in a fundamental right to contraceptives and abortion should accept gun ownership as a fundamental right, Professor Akhil Amar writes that both are "simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low."
115. Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 185 (2008).
116. See also Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 HARV. L. REV. 246, 271 (2008) ("In many ways, Heller may be no less defensible than Griswold. .. .").
117. Substantive due process is not unique, of course, in its indeterminacy. The Eighth Amendment prohibition of cruel or unusual punishment, for example, is keyed to "evolving standards of decency." See, e.g., Roper v. Simmons, 543 U.S. 551, 560-61 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)(plurality opinion) (2005); see also Miller v. California, 413 U.S. 15, 30-32 (1973) (announcing the "contemporary community standards" test for evaluating obscene material under the First Amendment).
118. For a sampling of the voluminous scholarship demonstrating the complex interaction between legislation, public advocacy, and constitutional decisionmaking in setting constitutional values, see generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009)
119. Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 CALIF. L. REV. 1027 (2004).
120. Reva Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323 (2006).
121. See McDonald, 130 S. Ct. at 3119 (Stevens, J., dissenting) (urging transparency in substantive due process cases).
122. See Neil S. Siegel, "Equal Citizenship Stature": Justice Ginsburg's Constitutional Values, 43 NEW ENG. L. REV. 799, 803-04 (2009).
123. See generally Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992) (arguing that because abortion regulations were motivated by gender stereotypes, equal protection is the appropriate constitutional framework for examining abortion laws).
124. See also Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073 (1994) (arguing that women's claims for a joint property regime are not new claims, but rather were first made in the nineteenth century, as part of protests about the undervaluation of household labor).
125. Professor Cary Franklin's effort to rediscover the roots of a non-formalist definition of sex discrimination in the legislative history of Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 253 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (2006 & Supp. IV 2011)), is an example of how the affirmative excavation of history and tradition can have more potential pay-off than rejecting the relevance of the past.
126. See Cary Franklin, Inventing the "Traditional Concept" of Sex Discrimination, 125 HARV. L. REV. 1307 (2012).
127. Consideration of the residual values from the past may make us more pragmatic about other legal doctrines, including equal protection. For example, Professor Reva Siegel refutes the binary division of Justices between those who favor racial equality and those who do not, by explaining how "race moderates" sometimes allow civil rights initiatives and sometimes restrict them, depending upon the impact of those initiatives on social cohesion. Race moderates reject civil rights initiatives that offend whites and thereby set them against the rights of blacks, in part to avoid setting whites against blacks, or "balkanization."
128. Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 YALE L.J. 1278, 1297, 1300 (2011).
129. The Court's highly controversial opinion in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), is one example of the antibalkanization principle, insofar as it represents the rejection of a city's polarizing efforts to protect the rights of minority firefighters who had not done well on the city's written promotion exams. Balkanization can be viewed as a consequence of a residual legacy of race discrimination to which race reformers should be sensitive-not just as a past to be defeated, but as the present synthesis of past and present that must be pragmatically taken into account.
130. Along these lines, see Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 VA. L. REV. 1893 (2010).
131. The sensitivity of "race moderates" to the impact of Court decisions on values that are carryovers from the past demonstrates the same kind of need for mediation of past and present as is present in the context of many substantive due process cases