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Abstract

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-than real constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In this Article, Professor Krotoszynski argues that substantive due process would benefit immeasurably if the Dumbo's feather of tradition could be reworked into something resembling an operational test that not only serves as a justification for results that a majority of the Justices might like to reach, but also as a brake against results that a majority of the Justices might like to reach-but that tradition, or consensus, does not yet sanction. In particular, Professor K rotoszynski argues that state counting could provide an important means of cabining judicial discretion in substantive due process cases, by making the application of the tradition test turn less on subjective considerations. A carefully theorized and operationalized effort at state counting might provide a useful way of identifying and protecting the traditions from which we have broken, which are no less deserving of constitutional protection than those traditions from which we have come. A commitment to maintain tradition as a living concept deserves no less.

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