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

[guayiya]

David M. Wagner wrote:

> 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.
>  

This claim is hard to understand, considering that there were no 
congressionally established public schools in the 1790s.  The issue 
simply could not arise.

By the way, what is the literal meaning of "respecting"?  Does it mean 
Congress can neither support nor interfere with a State establishment of 
religion?

>  
> 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. 

But McLaughlin v. Florida found no problem with a law that punished 
blacks and whites equally for interracial cohabitation.

As usual, interpretive method does not control the outcome.


Daniel Hoffman

> <>
>
>------------------------------------------------------------------------
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20041127/d6ad1aa7/attachment.htm