The Five Types of Legal Argument, Third Edition by Huhn Wilson

Author:Huhn, Wilson [Huhn, Wilson]
Language: eng
Format: epub
Publisher: Carolina Academic Press
Published: 2014-04-30T16:00:00+00:00

CHAPTER 1 4

Intra-Type Attacks on

Tradition Arguments

Intra-type attacks on tradition arguments may assert that there is insufficient evidence that the tradition exists, may invoke a competing tradition, or may contend that a new tradition is emerging.

19. No Such Tradition Exists

The issue in Moore v. City of East Cleveland 301 concerned the constitutionality of a local “single family residential” zoning ordinance that defined the “family” in such a way as to prohibit two cousins from living in the same house with their grandmother. The Supreme Court, in an opinion written by Justice Lewis Powell, struck down the ordinance on the ground that it interfered with the “deeply rooted” tradition of persons living with extended family. 302 In dissent, Justice Byron White objected to this reasoning: “What the deeply rooted traditions of the country are is arguable; which of them deserve the protection of the Due Process Clause is even more debatable.” 303

As the following section illustrates, in most cases the difficulty is not proving that a tradition exists. Instead, the problem is that there also exists a competing tradition .

20. There Have Been Competing Traditions

In a famous passage from an opinion dissenting from the Supreme Court's denial of certiorari (the court's decision not to accept the case for review) in the contraception case Poe v. Ullman , 304 Justice Harlan recognized the possibility of conflicting traditions. He indicated that due process represents “the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.” 305

Competing traditions were also at work in Michael H. v. Gerald D . 306 The issue in that case was the constitutionality of a state law that conclusively presumed that the husband of a woman was the father of a child born during the marriage. The biological father (the wife's lover) challenged the presumption, and sought a ruling recognizing him as the father of his child. Justice Scalia, writing for the majority, and Justice Brennan, writing for the dissent, each invoked “tradition.” Justice Brennan cited the rights of “parenthood,” which are generally accorded to biological fathers. 307 Justice Scalia, on the other hand, relied upon “the historic respect—indeed, sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.” 308 Justice Scalia proposed a test for choosing between competing traditions. He urged that the controlling tradition should always be “the most specific level at which a relevant tradition . . . can be identified.” 30 9

21. A New Tradition Is Emerging

The most significant judicial attack upon “tradition” in recent years is contained in the 2003 decision of the Supreme Court in Lawrence v. Texas , 310 which accorded constitutional protection to people who engage in gay sex. In an extensive discussion in that case the Supreme Court employed a number of arguments rebutting the “tradition” that had been at the core of the Court's decision in Bowers v. Hardwick .

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