Justice Scalia's Use of Tradition in Lee v. Weisman and Casey
bobsheridan at earthlink.net
Wed Nov 24 10:25:55 PST 2004
"Is there an obvious factor I've overlooked which explains the difference? "
I doubt you have.
It's called the *'Cherry-picking Factor'* and is useful for adopting
traditions you like and discarding the inconvenient ones you don't.
We all do it, including Him, only He calls it "Textualism," and
"Originalism," and He likes it because those Framers were a lot smarter
than we are, I guess, They don't have to live here, and maybe He's got a
direct line to Them.
The rest of us just have to shuffle along using our best judgment, right
Or maybe I'm missing something, too.
RJLipkin at aol.com wrote:
> Is there an inconsistency in Justice Scalia's use of text and
> tradition in /Lee v. Weisman/ and in his footnote 1 concerning race in
> /Casey/? In the former he approvingly quotes a previous Court opinion
> stating that "the meanings of the [Establishment] Clause is to be
> determined by reference to historical practices and understandings."
> In the latter he writes: "The Court's suggestion that adherence to
> tradition would require us to uphold laws against interracial marriage
> is entirely wrong. Any tradition in that case [/Loving/] was
> contradicted by /a text/--an Equal Protection Clause that explicitly
> establishes racial equality as a constitutional value." [Emphasis in
> text] If traditions are indispensable in interpreting the
> Establishment clause, why aren't they equally indispensable concerning
> the Equal Protection Clause? And if text and tradition clearly permit
> prayer at graduation, why don't they permit a ban on interracial
> marriage as well? In other words, there seems to be a highly
> selective choice in the propriety of using tradition in Establishment
> Clause cases, but not in Equal Protection Clause cases. Is there an
> obvious factor I've overlooked which explains the difference?
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
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