He's So Unusual

Published on January 26, 2005

Constitutional “originalist” U.S. Supreme Court Justice Antonin Scalia (of “secularism led to the Holocaust” fame) yesterday scolded his fellow judges for looking to “abstractions” or “judicial tests” rather than the pure text of the Constitution when deciding religious cases. But what does Scalia mean when he says “pure text”? Not pure Constitution, but “long-accepted customs.” […]

Constitutional “originalist” U.S. Supreme Court Justice Antonin Scalia (of “secularism led to the Holocaust” fame) yesterday scolded his fellow judges for looking to “abstractions” or “judicial tests” rather than the pure text of the Constitution when deciding religious cases. But what does Scalia mean when he says “pure text”? Not pure Constitution, but “long-accepted customs.” “‘Tradition and historical practice is stronger,'” said Scalia, than “judicial tests” or the notion of a living Constitution that can be interpreted differently in accord with changing times. History, Antonin? Well, that would be a refreshing change from the claims that the 1950 insertion of “under God” into the 1892 Pledge of Allegiance is an expression of the Founders’ will, circa 1776. More to the point though, is Scalia saying that upholding the customs and traditions of the past 229 years — which are pretty wide and varied, not to mention occasionally plain wrong — is more important than trying to apply the Constitution to the disputes that come before courts? How original.

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