Justice Scalia's Use of Tradition in Lee v. Weisman and Casey
Mark.Scarberry at pepperdine.edu
Sat Nov 27 12:54:55 PST 2004
Bob Sheridan wrote:
*** Originalists don't seem to like the idea that we get to decide for
ourselves. I think it's our responsibity to decide for ourselves. Which
means that we keep as much of the original ideas as makes sense, and slowly
modify or get rid of what doesn't. ***
The problem with Bob's approach is that the "we" who get to decide are
unelected, life-tenured judges. Some of us would prefer that those judges be
bound by something stronger than their view of what makes sense. (That's not
to minimize the serious problems with defining what that "something
Mark S. Scarberry
From: Bob Sheridan
To: RJLipkin at aol.com
Cc: CONLAWPROF at lists.ucla.edu
Sent: 11/27/2004 12:43 PM
Subject: Re: Justice Scalia's Use of Tradition in Lee v. Weisman and Casey
These latest posts call to mind the early one by Prof. Lipkin in the
string, below, which I think translates to the idea that behind, or
underneath, the written text are attitudes and ideas on which we may
legitimately draw in order to provide meaning as we go along.
The next question is: Whose attitudes and ideas? Their's or Our's? The
Framers or Us? And where did the Framer's get theirs? From the history
they were familiar with, no doubt. We're familiar with the next 200
plus years worth of experience, tradition, and history. We have a
better sense of what is going to work for us than what resorting unduly
on /Them/ is apt to reveal. So I think it's up to us to use our best
judgment, cherry-picking the good stuff and discarding the rest. The
Cherry-Picking School. It's legitimate. It may even be preferred.
Originalists don't seem to like the idea that we get to decide for
I think it's our responsibity to decide for ourselves. Which means that
we keep as much of the original ideas as makes sense, and slowly modify
or get rid of what doesn't.
There are [at least] two basic views, or attitudes, on interpreting a
foundational document expressing agreement, the American and the
Soviet. Americans hope that a treaty, let's say, embodies the final say
of the parties, showing that negotiations are over. The Soviets, by
contrast, seem to have regarded the signing of a treaty as the signal
for the opening of negotiations.
The Originalists, Textualists, remind me of frustrated, even
fulminating, Americans, who thought that the Constitution was supposed
to have /answered/ the big questions. The Evolutionists must be the
Soviets, who regard the opening bell to have rung for ongoing
negotiations. Each camp has its more-or-less non-negotiable favorite
I can see how this will drive people nuts.
It appears that behind, or underneath, each camp's interpretation of the
text is a more or less coherent image, a view of what the Constitution
/really/ consists of, their own Platonic ideal. This must be what each
camp draws on when contesting issues.
The Constitution behind the Constitution, as it were.
I don't know which of the two constitutions is the more challenging to
discern, the Written or the Ideal. Add to that the notion that each of
us must be carrying around a different Platonic ideal, and we have more
constitutions than we can count.
I think we need a referee.
As an afterthought: There is also said to be an Eastern and a Western
mode of conducting an agreement. Westerners going to China to profit
preferred to write up and present, as soon as possible, a contract
covering all contingencies, to govern relations with their new business
partners. Of course no contract is detailed enough to govern /all/
contingencies, and so disputes still arose.
The Eastern mode of conducting an agreement was to be very slow to sign
any agreement. Rather, the preferred method was to delay and delay
concluding any agreement, to drag out discussions, to have many meals
and many cups of tea, while the contracting parties became well-familiar
with one-another. Only after seeing how these Westerners behaved and
treated them during social situations would the Easterners agree to
enter a long-term relationship, which they believed depended more on
mutual interest and good-will than the written memorial. Or so I've
Which way is right?
I suppose the answer depends on where you come from.
RJLipkin at aol.com wrote:
> My colleague, Erin Daly, suggests that there might be an "EPC
> exceptionalism," namely that there exists a "normative philosophy
> underlying the EPC" (Justice Brennan in /Craig v. Boren/) which
> permits defying tradition in creating new norms. This might
> successfully distinguish /Lee v. Weisman/ from /Casey/, but it doesn't
> answer Chi[p] Lupu's point. Moreover, I would argue that there is
> a contestable normative philosophy underlying all rights' provisions
> in the Constitution. And in the final analysis I can't see Justice
> Scalia choosing to take refuge beyond Justice Brennan's view above.
> Thus, the selective choice criticism still seems applicable.
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
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