Tradition, the Self, and Substantive Due Process: A Comment on Michael Sandel

Abstract

Professor Sandel's purpose is "to bring out the truth" in the view that the "justice (or injustice) of laws against abortion and homosexual sodomy depends, at least in part, on the morality (or immorality) of those practices." In particular, he wants to demonstrate that arguments against such laws cannot be carried entirely by a commitment to a "voluntarist" perspective, which defends the right of individuals to choose to engage in certain practices, regardless of the moral character of those practices. Sandel's project is to illustrate the inadequacy of this perspective through a critical analysis of "actual arguments" contained in recent cases in which the United States Supreme Court has developed the constitutional right to privacy, which protects from certain kinds of state interference such areas of life as abortion, procreation, marriage, and contraception. In this Comment I shall explore two problems with Professor Sandel's stimulating paper. The first is an important and suggestive ambiguity which lies at the heart of its exposition of the "voluntarist" perspective. The second is Sandel's seeming assumption that the dis-course of moral and political philosophy ought to be transposed tout court into the arena of constitutional adjudication.