Bringing Scalia's Decalogue Dissent Down from the Mountain

Scalia's dissent in McCreary County may well turn out to be important and controversial, but not for the reasons that legal scholars have so far identified. A close reading of the dissent-in light of Scalia's overall approach to using tradition in constitutional interpretation-shows that Scalia is not using tradition to propose an Establishment Clause hardwired by the founders for monotheistic religions. Tradition does not typically serve that kind of positive function in Scalia's jurisprudence, and it does not do so in McCreary County. Instead, tradition serves as a tool of judicial restraint, precisely to avoid imprinting the judiciary's own views indelibly onto constitutional guarantees.

Moreover, traditional practices for Scalia merely provide a historical baseline for understanding constitutional provisions-they do not freeze the Constitution in place around those traditions.