Well, my posts about the student who asked Scalia the sodomy question have been getting a lot of linkage.
The Two-Percent Company agrees with me, and adds a link to Thoughts from Kansas, which sums it up very nicely: “If Justice Scalia does not feel that the question is worth answering on privacy grounds, that means he is demanding a level of privacy he does not accord other citizens.” That’s exactly the point.
The Pragmatist, meanwhile, writes
Sandefur has defended the student’s view that if it is rude to inquire non-coercively about bedroom activities, then it does not seem that for the machinery of the state to probe into the bedroom is proper. This may beg the larger question of whether or not sodomy is immoral.
Not quite. First of all, it does not beg the question at all—begging the question is a technical legal term for a logical fallacy in which the answer merely restates the question, which I haven’t done. But I also don’t think that it simply raises the question, either. The question is not whether the activity is immoral, but whether its immorality, standing alone, makes the conduct a public issue, or not. If it does, then it is okay to send armed agents of the state into John Geddes Lawrence’s bedroom to arrest him for having sex with a man, and it is okay to ask Justice Scalia if he sodomizes his wife. If, on the other hand, this conduct is a private issue, regardless of whether it is immoral or not, it is nobody else’s business. That’s why the murder analogy doesn’t hold. Murder violates the rights of another person. Private, adult, consensual sex—hetero or homo—in the privacy of your bedroom, does not. Pragmatist writes, “For Scalia, as best we can tell, sodomy is an offense against morality; for his opponents, it is not. That is why Scalia thinks that sodomy is a proper subject of public inquiry….” Well, sort of. The unstated minor premise here is “private immoral activity is a public issue”—indeed, Scalia does state this, when he writes that he “do[es] not know what ‘acting in private’ means.” Well, grant that premise for argument’s sake—then if sodomy is a proper subject of public inquiry, then it is okay for this student to ask the question. Yet people are shocked that someone would dare to ask the question!
Will Baude misses the point when he writes that “[t]he fact that we think there is something unseemly about digging around in people’s bedrooms might indicate exactly that we shouldn’t let the state dig around in people’s bedrooms without a pretty good reason…[b]ut this intuition doesn’t tell us very much about what substantive behaviors we should or shouldn’t be allowed to punish once we got there.” I suppose not, but that isn’t the issue. The issue is whether or not we are prepared to regard bedroom activities as off limits to public discussion. Justice Scalia has said no, because he “do[es] not know what ‘acting in private’ means.” This incident merely demonstrates what’s wrong with that. That’s all the student apparently intended, and he accomplished it.
As for whether the Fourteenth Amendment “was meant to create a none-of-our-business rule of Constitutional Law,” obviously it was not. It was meant to recognize a preexisting none-of-our business rule of all law. There are some things that are simply nobody’s business individually, and therefore nobody’s business collectively, and therefore are not among the powers which any legitimate state may exercise. They are therefore among those things covered by the Due Process and Privileges or Immunities Clauses of the Fourteenth Amendment. Of course, one can only follow this if one believes that there are any pre-political rules to begin with, something Baude has often denied. But in any case, this incident is about political philosophy—about what is a legitimate state interest—not about law as such.
Thanks also to Dispatches from The Culture Wars, Joint Strike Weasel, Sivacracy.net and Inclined to Criticize for the links.
(In response to Inclined to Criticize’s point, I do believe that “almost every legal practitioner” is irrational in his or her interpretation of the Constitution. First of all, I know of no poll of legal practitioners that says just what “almost every” one of them believes. But even so, I would still not be afraid to say that “almost every” one is wrong. This is not so extreme as it sounds. Very, very few lawyers spend any great time thinking about Constitutional law. Very, very few of those who do are specialists. And most specialists just rely on stare decisis, or have not seriously considered alternatives to what they were taught in law school. Since I believe that something very deep went very wrong in the 1930s, it is not surprising, therefore, that I would think so much of legal theory is wrong. If this is treason, make the most of it.)
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