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

David M. Wagner daviwag at regent.edu
Sat Nov 27 12:23:49 PST 2004


-----Original Message-----

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. 
Before the rise of the public school system as we define it today, one would
look at the practices of "common" schools, other civic ceremonies, etc.

By the way, what is the literal meaning of "respecting"?  Does it mean
Congress can neither support nor interfere with a State establishment of
That was its original meaning.  By 1832, all states had decided to abandon
establishment.  That makes it hard for me to believe that, 36 years later,
"We the People" were concerned to overthrown state religious establishments.
Anyway, the incorporation of the Est.Cl. has meant attempting to turn a
structural command into an individual right, with predictably confusing
results.  I think Akhil Amar has it right when he says that of all the
elements of the B of R, non-establishment is the one that most "logically
resists incorporation." 

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

But McLaughlin v. Florida found no problem with a law that punished blacks
and whites equally for interracial cohabitation. 
Yes, the Court got EP wrong for several decades, and I would guess it well
always get at least some clauses wrong.
 -- David Wagner 

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