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

[Paul Finkelman]

I am not arguing that the post-Convention Congress (at least past the 
first) is a guide to intentions, rather, I am pointing out that the 
membes of Congress, especially those who had been in the Convention, 
simply rejected originalism as a proper mode of interpretation, and that 
by the mid-1790s Madison agreed.  My point is that if the delegates to 
the Convention themselves could not agree on what they intended (see for 
example, the disagreements between Randolph and Hamilton within 
Washington's cabinet over theBank) then how could any of us today 
possibly think we could understand their "intentions."  The former 
delegates to the Convention wisely rejected the notion of originalism, 
at least in the narrow sense many constitiutional lawyers use it today.

Paul Finkelman

Kurt Lash wrote:

>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
>>
>>
>>
>>    
>>
>>------------------------------------------------------------------------
>>
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>>

-- 
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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