Scalia in Boerne -Reply -Reply

[Mark Tushnet]

In reading what the responses printed as my
inquiry, I discovered that something had been lost
in the transmission--the crucial part, alas.  I
was wondering about Scalia's
anti-legislative-history position *in
constitutional cases* specifically.  Sorry for the
confusion.  It is (barely) coherent for an
"original understanding" person to avoid examining
what happened in the proposing Congress (on the
ground that what was ratified was what was
proposed, not what was defeated.  (It's barely
coherent, though, because what happened in
Congress might shed some light on what the
ratifiers understood the amendment to do--not much
light, perhaps, but some.)  So, again, has Scalia
done this before in constitutional cases, and is
there any tradition of doing so?

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001

202-662-9106
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tushnet at law.georgetown.edu