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

[RJLipkin at aol.com]

In a message dated 11/27/2004 11:07:07 A.M. Eastern Standard Time,  
daviwag at regent.edu writes:

I think the reconciliation is that text trumps  tradition when text is clear, 
but gives meaning to text when text is not  clear


I don't think this  can work. We disagree, sometimes systematically, over 
whether the text, in  any given case, is clear just as much as we disagree about 
the essential  features of
a tradition.  For example, one can argue that the Establishment Clause  
clearly is not restricted only to creating an official church. Instead, one  might 
argue that the EC embodies an anti-coercion principle that bars  both an 
officially established church and prayers at graduation.  The  argument here is 
similar to the famous anecdote about a conversation between  G.B. Shaw and the 
reigning prima ballerina of the time. (G.B. Shaw asked her if  she would sleep 
with him for one million dollars and she said yes.  He then  asked her if she 
would sleep with him for one dollar and she answered  indignantly, "Sir, what 
kind of woman do you think I am?" Shaw then  replied: "We already know what 
kind of woman you are. We're now just  haggling over the price". (I hope I got 
this story right at least for the  most part.) Thus, one can plausibly argue 
that the text of the First  Amendment clearly applies to prayers at graduation.  
The argument between  Justice Kennedy and Justice Scalia is simply haggling 
over price in the sense  that the two justices are arguing over how much 
intrusion is needed for  coercion. 
 
        Thus, in rejecting  coercion, for instance, as the reason for 
rejecting an official church, one  can clearly argue that prayer at graduation and an 
official church lie on a  spectrum of incidents all justified by an appeal to 
a principle rejecting  coercion in religious matters. Please understand I'm 
offering this as an example  of how someone might think that the Establishment 
Clause clearly, as a  textual matter, precludes prayer at graduation.  
 
        Similarly, one could argue  that the Equal Protection Clause clearly 
applies to gender and therefore should  trump traditions in contrast to 
Justice Scalia's dissent in VMI.  Another  example would be someone understanding 
the Equal Protection Clause as  perfectly compatible with affirmative action on 
the basis of governmental action  just after the Civil War.
 
        The points above are  designed only to suggest that appealing to text 
or tradition are controversial  appeals, and that consistency seems to 
require at least using text and tradition  in the same manner, namely, tradition 
gives meaning to constitutional provisions  since the textual statement of the 
provision is never uncontroversially  clear.  (I would include in this last 
contention even such provisions as  the age of eligibility for presidents. But I 
won't argue that point now.)  However, even insisting on consistency in this 
regard will not obviate the  necessity of interpretation and with it 
interpretive controversy.
 
        In sum, I do not think the  inconsistency charge is remedied in the 
way David Wagner interestingly suggests  above. 
 
Bobby
 
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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