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

Sanford Levinson SLevinson at law.utexas.edu
Sat Nov 27 18:33:42 PST 2004

Kurt writes:

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).

 To describe Madison's views as "pragmatic considerations" is ambiguous.  I.e., it's no (only) that he thought the Bank 
was a good idea.  He also explicitly stated that practice and public acceptance had basically settled the issue of the constitutioality of the Bank.  I suggest when teaching Madison's statement that he in effect accepted the legitimacy of non-Article 5 constitutional amendment, since, as Kurt correctly states, he never once suggested that he was wrong in his initial opposition to the Bank  (James Boyd White describes McCullloch as an "amendment," but no less great for being one.)
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