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

Paul Finkelman paul-finkelman at utulsa.edu
Sat Nov 27 12:35:02 PST 2004

David Wanger writes (below) that Madison may be an "unreliable guide to 
original intent " --  but what about the other framers in Congress, who 
all denounce originalism as a guide to anything, as Madison later does? 
 If the framers had meant us to look at their intentions why did they 
refuse to provide us with a record of their debates so we might 
understand their intentions?

Paul Finkelman

David M. Wagner wrote:

>2 would be inconsequential unless we did, in fact, care about original
>understanding.  Why else would we care whether the original understanding
>was to reject original understanding?  Anyway, it seems to me McCulloch
>makes out a decent case for a pro-Bank position within an original-intent
>framework; I suppose that would mean that Madison was, in fact, an
>unreliable guide to original intent on the issue of implied powers and the
>Sweeping Clause.  That's not a problem for textualism/originalism unless one
>equates those views with view that the Constitution is transparent for the
>opinions of James Madison.

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

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