Foreword: Toward a Model of Roles in the Due Process of Life and Law
![handle is hein.journals/hlr87 and id is 19 raw text is: NOVEMBER 1973
HARVARD LAW REVIEW
THE SUPREME COURT
1972 TERM
FoRtwoRD: TowARa A MODEL oF ROLES IN THE
Du. PROCESS oF LIFi AND LAw
Laurence H. Tribe *
U NLIKE Yeats' rough beast, its hour come round at last, 1
substantive due process may yet enjoy an auspicious second
coming. For the Supreme Court's 1972 Term points the way
toward a conception of substantive due process that may avoid
the fate of that doctrine's earlier incarnation in American con-
stitutional law. This Foreword will venture a tentative exploration
of the widening gyre 2 implicit in several of the Court's recent
decisions.
I. Roe AND Rodriguez: THE CHALLENGE
Last year in these pages, Gerald Gunther proposed a revital-
ized enforcement of the constitutional requirement that legisla-
tive means substantially further legislative ends.3 For the prag-
matic reason that due process carries a repulsive connotation of
value-laden intervention for most of the Justices, of the Burger
Court as well as the Warren Court, ' Professor Gunther sug-
gested that the inquiry could best be carried forward under the
banner of equal protection rather than due process . . . . ' But
in San Antonio Independent School District v. Rodriguez,6 its ma-
jor opportunity this Term to scrutinize a means-end relationship
* Professor of Law, Harvard University. B.A., Harvard, 1962; J.D., i966.
This Article was prepared in connection with research supported in part by the
Childhood and Government Project at the University of California, Berkeley. I
wish to express my gratitude also to the Editors of the Harvard Law Review and,
for their many helpful comments, to Sissela Bok, Paul Mishkin, and Carolyn Tribe.
'Yeats, The Second Coming, in 2 THE OxzoRD ANTHOLOGY OF ENGLISH LIT-
ERATURE 1700 (i973).
21d.
I Gunther, The Supreme Court, 1971 Term -Foreword: In Search of Evolving
Doctrine on a Changing Court: A Model for a Newer Protection, 86 HARV.
L. RaV. i, 20 (I972) [hereinafter cited as Gunther].
4 Id. at 42.
5d.
411 U.S. 1 (1973)-
VOLUME 87
NUMBER 1](ViewImageLocal?handle=hein.journals/hlr87&div=12&collection=&method=preview&ext=.png&size=3)
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Foreword: Toward a Model of Roles in the Due Process of Life and Law
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