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

[Kurt Lash]

As far as Madison's "originalist" views are concerned, Madison early 
on developed the argument that the meaning of constitutional 
provisions like the commerce clause should be determined according to 
the original understanding of the ratifiers in the state conventions.  
He pressed this argument in his speech against the Bank of the United 
States and I am not aware of any evidence that he abandoned it--
indeed, he repeated it throughout his life (even if pragmatic 
considerations led him to sign the bill for the second bank).

Although it is true that most of his colleagues rejected his approach 
in the original Bank debates, most of his colleagues also voted for 
the Alien and Sedition Acts, based in part on their belief that 
Congress had unenumerated power to enforce the common law.  As Larry 
Kramer might point out, popular constitutionalism soon took care of 
that interpretation.  In general, I think the post-adoption actions of 
a majority of Congress are a poor guide to determining the original 
meaning of the Constitution as understood by those who ratified the 
document.  

Once one focuses on the understanding of the ratifiers, one can also 
make sense of why Scalia would treat historical traditions under the 
establishment clause differently from that of the establishment 
clause.  If the first amendment originally was understood to leave  
the regulation of religious freedom to the states, then historical 
state traditions are relevant to understanding what constituted the 
common understanding of Privileges or Immunities in 1868.  Indeed, a 
common law analysis seems quite appropriate for interpreting the 
meaning of the P or I Clause--the clause believed most likely to have 
embraced freedoms listed in the first eight amendments.  The equal 
protection clause, on the other hand, was decidedly not a provision 
entrenching common law equality norms.  It makes sense to treat this 
provision as "breaking the chain" of tradition.

Kurt Lash
Loyola Law School, Los Angeles
  


----- Original Message -----
From: "David M. Wagner" <daviwag at regent.edu>
Date: Saturday, November 27, 2004 12:14 pm
Subject: RE: Justice Scalia's Use of Tradition in Lee v. Weisman and 
Casey

> 
> 
> What is interesting, of course, is that Madison's views as to the
> constitutionality of the Bank were resoundingly rejected by his 
> colleaguesin 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. 
> 
> 
> 2 would be inconsequential unless we did, in fact, care about 
original
> understanding.  Why else would we care whether the original 
> understandingwas to reject original understanding?  Anyway, it 
> seems to me McCulloch
> makes out a decent case for a pro-Bank position within an original-
> intentframework; 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.
> 
> 
> "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.  
> 
> 
> I'd say that a tradition of racism is one thing, and a tradition of
> miscegenation statutes is another, to wit, a more specific 
> instance of the
> former.  "We refer to the most specific level at which a relevant 
> traditionprotecting, or denying protection to, the asserted right 
> [or here, the
> asserted policy] can be identified." 
>  
> 
> 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)).   
> 
> 
> That would be a fine thing.  If the Republican Party has two 
> neurons to rub
> together (admittedly, not something one can count on), it would 
> become home
> to pols and voters who disagree among themselves about the ideal 
> state of
> abortion law but who agree that something to the "right" of the
> Roe-Casey-Stenberg regime is desirable.  In the center of this 
> range would
> be those whose main abortion-related stance is parental 
> notification, which
> should be congenial to social conservatives (because it would 
> marginallyrestrict abortons), at least some libertarians (those 
> who think that
> state-enforced parental ignorance on an important matter of teen-
> raising is
> an unacceptable interference with the rights/duties of parents), and
> suburban women (especially those with daughters).
> 
> Or a critical mass of GOP leaders might say, this has now been 
> returned to
> the states, let's get it out of our national politics.  But of 
> course it
> would still be a major issue in state elections -- might even revive
> interest in sub-national politics.
> 
> 
> 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"?   
> 
> 
> I think the genius of such a development would be that it wouldn't 
> have to,
> any more than it had to agree on appropriate graduation prayers,
> pre-Weisman.  Diversity on a district-by-district would kick in. 
> 
> -- David Wagner
> 
> 
> 
-------------- next part --------------
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.