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

Paul Finkelman paul-finkelman at utulsa.edu
Sat Nov 27 11:32:32 PST 2004

It is also worth nothing that Madison later rejects his won originalism, 
signs into law the 2nd Bank of the US and says that whatever he once 
thought was overruled by precedent of having the bank.  In 1816, when 
calling for the creation of the 2nd Bank, he declared he was "Waiving 
the question of the Constitutional authority of the Legislature to  
establish an incorporated bank as being precluded in my judgment by 
repeated  recognitions under varied circumstances of the validity of 
such an institution  in acts of the legislative, executive, and judicial 
branches of the Government,  accompanied by indications, in different 
modes, of a concurrence of the  general will of the nation. "
In a debate later in the 1790s  over Jay's treaty, in 1796, Madison 
specifically rejected using the  convention debates as a source of 
determining what is constitutional and what is  not.  He noted that in 
1791, during the debate over the Bank of the United  States, he once 
used the  convention as a source of authority, but  a number of 
congressmen, including Elbridge Gerry of Massachusetts (also a  delegate 
to the Convention), had objected to this type of analysis.  By 1796  
Madison agreed with this position.  After quoting Gerry's speech of 
1791,  Madison declared he "did not believe a single instance could be 
cited in which  the sense of the Convention had been required or 
admitted as material in any  Constitutional question."

Finally, he explained his low regard for the intentions  of the framers, 
in 1821, in a letter marked "Confidential." There he argued that  "[a]s 
a guide in expounding and applying the provisions of the Constitution, 
the  debates and incidental decisions of the Convention can have no 
authoritative  character."

For a more comprehensive discussion of Madison and his rejection of 
orignalism, see, Paul Finkelman,    THE CONSTITUTION AND THE INTENTIONS 
349  (1989)

Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu

Sanford Levinson wrote:

> 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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