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

Francisco Martin ricenter at igc.org
Sat Nov 27 09:03:54 PST 2004

What I find inconsistent with originalists who also claim to be textualists is the following: Where in the Constitution does it say that constitutional text is to construed in conformity with the original intent or public understanding of the Founders/Framers?  With the exceptions of Article IV and the Ninth and Seventeenth Amendments (which respectively are content void or have few applications), the Constitution's text provides no rules for its construction.

The only solution is to recognize that the Framers understood the Constitution to be a treaty, and as a treaty, it is to be construed in conformity with the rules of the customary law of nations (to which the U.S. has acceded) because the law of nations, which governs treaties (including those forming nations), requires such.  This allows one to be a true textualist and originalist while recognizing that the meaning of the Constitution does change because the customary law of nations changes by definition. 

Francisco Forrest Martin
Rights International, The Center for International Human Rights Law, Inc.

----- Original Message ----- 
From: David M. Wagner 
To: RJLipkin at aol.com;CONLAWPROF at lists.ucla.edu
Sent: 11/27/2004 11:15:12 AM 
Subject: RE: Justice Scalia's Use of Tradition in Lee v. Weisman and Casey

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


-----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 t!
 o 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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