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

[Sanford Levinson]

I basically begin my constitutional law course by asking my students to read aloud James Madison's 1791 speech to the House of Reprentatives re the constitionality of chartering the Bank of the US.  He offers four "rules of interpretation," the first two of which are somewhat similar to David Wagner's.  I.,e, the text controls, if it is "clear," and then one looks to the understandings of the parties.  Then, quite interestingly, one looks to the consequences. But he concludes his speech (or at least the version excerpted in our casebook) by saying that the Constitution had been sold, as it were, on the basis of "limited government of assigned powers," and that to charter the Bank would be to play bait and switch.
 
What is interesting, of course, is that Madison's views as to the constitutionality of the Bank were resoundingly rejected by his colleagues in the House. So what I always ask my students is whether the moral is 1) Madison is actually an unreliable guide as to the original understanding; or 2) almost no one really cared about original understanding.
 
"Tradition," of course, is different from original understanding, but I'm not sure that it's any clearer.  With respect, I don't think that one can explain away as easily as Prof. Wagner tries to do the quite embedded tradition of American racism (which, to be sure, is not the *only* aspect of the American tradition).  Taney's opinion in Dred Scott does a quite wonderful job of indicating how deep that tradition is, particularly with regard to interracial marriage, banned in Massachusetts as well as in Virginia.  
 
An entirely gratuitous comment:  I find myself increasingly wishing for the reversal of Roe v. Wade so that the Republican Party would actually have to become accountable for an abortion policy (and decide, for example, among the social conservatives, libertarians, and suburban women (especially those with daughters)).  Similarly, I wonder what would happen within the Republican Party if Engle v. Vitale were overruled.  Does anyone seriously believe that even the self-styled "religious base" of the Republican Party could agree on a "common prayer"?  
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of David M. Wagner
Sent: Sat 11/27/2004 10:06 AM
To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
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
 
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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