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

[Sanford Levinson]

Marty writes:
 
Scalia writes that the EPC "explicitly establishes racial equality as a constitutional value."  Of course, the EPC doesn't explicitly establish, or even say, anything about race, as such.  
 
Marty is clearly correct.  Indeed, a similar issue came up this past week, when I was teaching National League of Cities, where Rehnquist says , citing Fry, (something like, I don't have my casebook with me), "The Tenth Amendment expressly says that Congress can't impinge on the fundamental integrity of the states."  I suggested to my students that if any of them wrote, on their final exam, that the Tenth Amendment "expressly" said any such thing, I'd mark down their grade.  Ditto re Scalia's contention re the EPC.  One might well argue that the "penumbras and emanations" of the EPC and 10th A justify Scalia's and Rehnquist's positions (though I'd be more than willing to debate that), but what one cannot do is to say that the language "expressly" or "explicitly" establishes the point.
 
sandy
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