Scalia: Judges Should Consider Tradition in Church and State Cases
It was during the dressing-down of a high school classmate that U.S. Supreme Court Justice Antonin Scalia first came upon "the Shakespeare principle," a concept that he said can be applied as easily to constitutional law as to literature.
Speaking at the University of Virginia Law School on Thursday, Scalia recalled hearing the classmate make a "sophomoric, ill-founded" criticism of "Hamlet" during English class.
The justice recited his teacher's response in front of a packed Caplin Auditorium:
"'Mister,'" he said, adopting the teacher's Boston-Irish accent, "'When you read Shakespeare, Shakespeare's not on trial. You are.'"
Scalia used the tale to drive home his view that judges pondering questions of constitutional law should consider the basic social practices that prompted the document's creation rather than the judicial tests and interpretations that came after.
"What Shakespeare is to the high school English student, the society's accepted constitutional traditions are to the prudent jurist. He doesn't judge them, but is judged by them."
Scalia, who was a member of the Law School faculty from 1967 to 1971, is in Charlottesville this week to receive the Thomas Jefferson Foundation Medal in Law, the highest external honor bestowed by the University, which grants no honorary degrees.
During his address, Scalia said that judicial interpretation of the separation of church and state has grown beyond what the framers intended.
As an example, he pointed to the case Texas Monthly Inc. v. Bullock , which the Supreme Court took up in 1989. The case involved whether it was a violation of the Establishment Clause for Texas to allow a sales-tax exception for religious publications. Though Scalia dissented, the court decided the rule was unconstitutional.
Scalia said he suspected that the sales-tax exemption had been in place for many years, and said it very well could have been commonplace in all states, in the sense that parishioners don't typically pay sales tax on publications they purchase from their church.
"The case was decided, however, not by considering the long-accepted practices of our people, but by a mechanical application of the Lemon test, which gets its name not from its substance, as would be appropriate, but from the name of the case," Scalia said.
The Lemon test, which derives from the 1971 case Lemon v. Kurtzman , dictates that a law or government action is unconstitutional if it appears to favor religion over non-religion.
Scalia, a longtime opponent of the test, said it is an example of an area in which the law originated from judges rather than from society's idea of traditional practices.
"I have nothing against formulaic abstractions - otherwise known as rules," he said. "They are the means by which judicial arbitrariness is checked. But unless it is thought that the most fundamental laws of our society were meant to be made up by judges, those formulaic abstractions ought to be rooted in - ought to be derived from - the text of the Constitution, and where that text is in itself unclear, the settled practices that the text represents."
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