Justice Scalia's Use of Tradition in Lee v. Weisman and Casey

[David M. Wagner]

I think the reconciliation is that text trumps tradition when text is clear,
but gives meaning to text when text is not clear.  Of course, what matters
is not only the clarity of the text, but also the clarity, so to speak, of
the tradition.
 
It's counterintuitive that nondemonational public school prayers would
amount to an establishment of religion in an originalist sense; thus, long
and widely-accepted tradition is probitive of meaning in Weisman.
 
On the contrary, it is hard to see how to reconcile "equal protection of the
laws" with any law that makes the race of the defendant an element of a
crime.  So the text in Loving is clearer than the text in Weisman.
Meanwhile the tradition in Weisman has much wider and longer acceptance than
the one in Loving.  While some miscegenation laws date back to the 17th
century, the big surge in such legislation came with the onset of
"scientific" racism in the late 19th century, and even then, such laws were
not as universal as graduation prayers.  
 
So the difference is: on the one hand, a text that does not clearly ban the
practice (to say the least), applied to a practice that is widespread and
historically rooted; versus a text that is relatively clear, applied to a
practice whose spread was narrower and whose historical roots were
shallower.
 
David M. Wagner
Regent University School of Law
 
http://ninomania.blogspot.com
 
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Wednesday, November 24, 2004 12:41 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Justice Scalia's Use of Tradition in Lee v. Weisman and Casey



        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? 
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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