Tradition

Scalia still cracks me up even as he infuriates me. His dissent in Planned Parenthood v. Casey focused, as his opinions invariably do, on a slavish devotion to stare decisis and a very limited worldview predicated on the way things were (conveniently ignoring how fraught and constructed history always is) at the time of the writing of the Constitution:

The issue is whether [the power of a woman to abort her unborn child] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally-protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

The desire to hold on to things because “that’s the way we’ve always done it” is one that has made its way into other areas of our life as well. Have you ever wondered why carrots have to be orange? (It’s beta-Carotene, but not quite in the way you’d think it is).

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