Wow, I somehow missed this story. Justice Scalia was visiting NYU recently to receive an honor from the law school and while he was there he met with law students and had a question and answer session, as he always does. The NYU newspaper tells what happened:
The Q-and-A opened with hostility as audience members expressed frustration with many of Scalia's opinions.In asking about Scalia's dissent in Lawrence v. Texas and his view that privacy is not constitutionally protected, Eric Berndt, a law student, shocked the crowd by asking, "Do you sodomize your wife?"
Scalia refused to answer the question while the crowd gasped and the administrators promptly turned off Berndt's microphone.
Wow, that takes some chutzpah to ask. There is of course much outrage over this intemperate and rude question. But as Sandefur points out, it's a fair question given the background:
Now, if "the promotion of majoritarian sexual morality" is a legitimate state interest, then it is entirely appropriate for us to demand to know what each person's sexual practices are - and particularly high government officials. It has been rightly said that the purpose of the Bill of Rights was to remove some things entirely from political discussion. Justice Scalia believes that private, adult, consensual sexual activity is not among those things. Therefore, it is entirely legitimate for a citizen to demand to know what Justice Scalia does in private. After all, he thinks it is perfectly okay for him and his deputies (i.e., the elected officials he votes for as a citizen) to demand to know what John Geddes Lawrence as doing in the privacy of his bedroom.Explain to me, please, why it is wrong for this student to violate the privacy of Justice Scalia's sexual life - Scalia being a man who "do[es] not know what 'acting in private' means" - but okay for the people of Texas to do the same to Mr. Lawrence.
Hard to argue with that logic. If the social conservatives like Scalia are going to argue so stridently for the right of the government to peek into other people's bedrooms and demand the authority to regulate what others do there, then they of course also grant to government the authority to regulate what they do as well.
There is also a secondary story here, which is the fact that a group of students outside the Q and A session, and throughout Scalia's visit, were protesting by blowing air horns and evidently being quite obnoxious. This follows on the heels of recent incidents where conservative speakers like Ann Coulter and David Horowitz have been hit with pies while trying to speak on college campuses, or I believe it was salad dressing that was thrown on Pat Buchanan. Other speakers, almost all conservatives, are routinely shouted down as young "liberals" attempt to use the heckler's veto to violate the right of others to speak and to hear the views of these people. I put "liberals" in scare quotes because I don't think the people who engage in such behavior deserve the title. Their behavior is anything but liberal. They have built themselves up into such a fit of victimhood that they have flipped over to the role of bully.
I think Ann Coulter, David Horowitz and Pat Buchanan are obnoxious too. But by attempting to take away their right to speak at some campus where they are invited, these anti-speech hooligans (which is what they are) are only playing into their hands. The answer to speech you don't like is more speech. Challenge them, engage them, prove them wrong. But trying to drown them out by throwing a collective temper tantrum not only does no good, it does substantial harm to your credibility and allows your opponents to play the victim card just like you like to do. The student inside the Q and A session may have asked a rude question, but he was engaging the target of his ire to make a relevant point. The students on the outside blowing their air horns were only making asses of themselves.
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Hard to argue with that logic.
Hmmn... no, it's pretty easy. Scalia's position is on the scope of legislative powers, not the wisdom of everything a legislature might do in the scope of regulating moral behavior. While I disagree with his position, his scorn is for the legal reasoning behind claiming a generalized right to privacy. For better or worse, the question is more logically, "Justice Scalia, would you accept as constitutional a state law that would ban any specific sex act such as that between you and your wife in the privacy of your own bedroom?" I'm guessing he'd say yes.
Nice contrast between the student inside and the students outside. I can only hope that your point was understood by the audience as well. The thought that Scalia might be shamed by not answering this question is delicious.
I hope more on the left take the example of the student inside and not the students outside because I too have see too much of this kind of bullying lately. Some of them are becoming what they hate and it is one of the reasons that I have more sympathy for the right than the left at the moment.
Let me correct myself. I meant to say that I had more sympathy for the right (just a bit) during the last election. Lately that sympathy has swung considerably over to the left thanks to all this useless mouth-hole flapping concerning judicial issues that I have heard coming from the right.
So, what's the answer? Is there a generalized right to privacy? If not, then why is the question out of line? Is it OK for the State to violate privacy but not individuals?
Ed has penetrated to the real issue here. the student demonstrated quite forcefully that Scalia does indeed have a privacy right here. Scalia himself obviously thought the question too personal.
This is where reality smacks up against legal theory. As a practical demonstration, it ranks right up there with Feynman demonstrating the problem with the shuttle's o-rings with a clamp and a glass of ice water.
Hmmm, Ed. Is there something wrong with the blockquote style?
Ruidh-
Nope, the post looks right to me, including the blockquote.
Sherman Dorn wrote:
I suspect you're right, but I don't think that really resolves the dilemma for Scalia. He can safely say yes because he knows that the public isn't going to go after his private behavior. But as Ruidh points out, the real conflict here is with the fact that Scalia recognizes that there is a private sphere of action, something he refused to admit in his opinions when it really mattered.
But you've pointed out the real problem I have with Scalia's reasoning, and with other conservative judicial theories - he's asking the wrong question. The question is not whether someone has a right to privacy, the question is by what Constitutional authority does the government presume to control such decisions? We need to completely reframe this debate with the correct questions. Forget about asking where the textual support for a given rights claim is; ask where the textual support for a given authority claim is. And listen to them sputter. What are they going to say, that the "interstate commerce" clause is triggered because sodomy might include lubricants that crossed a state line?
"The question is not whether someone has a right to privacy, the question is by what Constitutional authority does the government presume to control such decisions?"
My sentiments exactly...
The Comstock Act made the use of contraception illegal, stating that preventing populating the country was "unAmerican". It took almost a hundred years to take this law off the books!
Health Freedom Legislative Advocates pushed a bill in 1990 to prevent natural health professionals from giving dietary counseling to their clients. Now, only "licensed" dieticians are allowed to tell you what you can and cannot eat.
In Griswold v. Connecticut (1965) it was determined that the Comstock Act violated the right to marital privacy. (And our justices should be reminded of this)
I always thought that according to our Constitution, Congress has no authority over matters besides Treason, Counterfeiting and Piracy... All other laws are to be set by the states, if at all... isn't this why laws against murder, rape etc vary from state to state?
If this is the case, Congress has stepped way out of line to address sodomy, marriage, health and even marijuana...
Constitutional grants of power are only relevant to the federal government. States, as the truly fundamental unit of government, have inherent police power to regulate health, safety, and public morals unless specifically restrained by the state or (state applicable provision of the) US constitution.
Ed, when I used the blockquote in my reply, it appears that the top line of the three line quote dosn't have the darker background. It's probably my browser.
Dylan wrote:
I might quibble a bit with the wording of the last sentence. Even where not "specifically restrained", a state law may be unconstitution. After the 14th amendment, state action is subject to the same tests for constitutionality that federal actions is.
Dylan, doesn't it also stand to reason, based on the 10th amendment, that the states would also have to prove they have the authority to regulate such private acts as sex, health etc.?
Article I section 10 lists the limitations of states powers. Art. III section 4 requires states to afford citizens a republican form of government.
I see nothing that indicates that states have any more power to restrict liberty than the federal government.
I'm seeing the same problem. So it's not just you ruidh.
When I use IE the problem is there. When I use Firefox it looks fine. So maybe it's IE.
While I absolutely agree with your statements on this I have always thought that the Fourth Amendment, while it does not specifically enumerate a "right to privacy", strongly seemed to imply one, at least unless there was probable cause to think that a crime was being committed.
I guess that "conservatives" would argue that the 4th wouldn't stop them from passing personally intrusive laws (like sodomy laws) it would just require that they get a search warrant before they invade your privacy.
As for the "impertinent" question asked of Scalia, I remember years ago listening to Bork pontificate (during some TV interview) on how there was no right to privacy in the Constitution and thinking, "Fine, we'll start by putting video cameras in your bedroom Mr. Bork. You certainly cannot object, since you've just said you have no right to privacy."
I'm not a big believer in incorporation in general.
Irrelevant. The Constitution does not purport to give states any powers whatsoever. It simply claims some from them. They can do everything they could before, unless specifically prohibited by the U.S. Constitution, they are sovereign states that can do anything not prohibited by their own constitutions.
Stated differently: Texas can't negotiate treaties with France because it explicitly gave up that power by acceding to the U.S. Constitution, which says it can't. If that provision wasn't in there, it could.
Maybe it would help to point out what I was responding to originally:
Those are only valid concerns for the federal government. It has enumerated powers. The states do not, subject only to their own constitutions and any limitations they agreed to by ratification of the U.S. Constitution.
Yes, the validity and scope of incorporation aside, the federal Constitution limits what state governments can do in many important ways. But it in no way grants any affirmative powers to the states that they would not otherwise have. It is therefore never necessary to ask whether a state has power to do something as inherent matter, only whether it is prohibited by some explicit constitutional provision.
Stated differently: as a state of nature, the states are absolute sovereigns. The only reason teh federal government has enumerated powers is not because they are inherently necessary for a government to be legitimate, but because they define which of the absolute, unquestioned powers originally belonging to the states have been transferred to the federal government, or where, they overlap (as with taxing authority), that it permits the federal government to exercise over its citizens.
Think of it this way: if someone said an action of the Soviet Union was illegal in international law because of some convention it had ratified, no one would think to question whether it had inherent power to do it at all, independently of its obligations under the convention. Duh, the USSR can do whatever it wants. So can U.S. states. The only difference is that they've enacted binding limitations on their absolute power.
Thanks Dylan. I needed to "hear" that.
Case in point: On the local level, a community can prohibit alcohol, but only within the confines of the community. Although Americans have a Constitutional right to have alcohol, they are simply prohibited from doing so within said community because the People of that community are sovereign and have such powers protected by the Constitution.
In other words, just because the Constitution protects our right to have alcohol does not mean that it is mandatory that everyone drink... and the aforementioned community has decided they will not drink, nor tolerate drinking from others.
Another example of this is speed limits. Since you are not required to drive, you can choose to not use the roads if you don't want to abide by the speed limit laws.
*Melody's brain is now churning like an old hand-cranked washing machine*
1. This is a subtle, but important distinction. It's never been litigated that I know of. But the states didn't concede any power to the federal government. The states did not make the federal government.
Madison wished to avoid things like the nullification debate. So the U.S. Constitution was not sent to the states for ratification, which might make it appear the states have some authority -- but to the people directly. The Constitution is a compact between the citizens.
Where that leaves the states in drawing authority is a good question. The Constitution requires that the states provide a republican form of government, but it says little else. Madison and Jefferson was clear in their correspondence to each other that states did not have the authority to establish a church, for example, since they didn't have that authority under their own charters in 1787, and the Constitution didn't grant it to them, either.
Sodomy laws? Oh, brother! Madison and Jefferson didn't correspond much on that topic.
2. One other thing I didn't see addressed: Fortunately for Scalia, the Supreme Court didn't take his position in the Texas sodomy case. Had they done so, one wonders if the student couldn't claim an absolute right to know about Scalia's sex practices. But as it is, it is legally not a good taste question to ask people what they do behind closed doors. It's almost a catch 22 -- the only reason Scalia has any ground to complain is because the Court rejected his arguments.
Ed, in Federalist 44, it states: "...the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers."
Our remedy to bad laws is to vote the scoundrels out of office... especially if our executive and judiciary branches are the scoundrels!
I think it is imperitive in this day and age to emphasize the power of the people. If we don't like what is going on, we have the power to change it, despite what sheep-like educators tell us in our public schools.
As for asking Scalia "the question": Matters of "taste" (even bad taste) are still completely legal...
Dylan wrote:
I think this is specious reasoning. First, there are no states in a state of nature. States are governments, just like nations are, and they are created by the people within them. The founding premise of the nation, the notion of unalienable rights that precede the existence of any government, strongly cuts against this notion that states have unlimited authority except that which they voluntarily ceded to the Federal government. Second, as Ed Darrell noted, the states did not ratify the constitution, the people did. It was not sent to the state legislatures to vote on, it was sent directly to the people to vote in state ratifying conventions. Both the state and the federal governments are creations of the people and both should be held to the same standard when they attempt to violate the unalienable rights of the individual.
Third, the 14th amendment changes everything in terms of the authorities of the government, whether state or local. The Civil War essentially ended the argument over this issue and established once and for all that the promises of the Declaration would now extend to all governmental action, not merely Federal action. And that is a good thing. If our rights are unalienable, then it matters not how far away from you the decisions are made to take those rights away. Unalienable means unalienable. Having your unalienable rights violated by the government in Lansing or Austin is no better than having your rights violated by the government in Washington. And with the passage of the 14th amendment, the states are now held to the same limitations that the Federal government is. The evidence that this was the intent of the Congress when passing the amendment has been upheld by the courts time and again, and it very clear from the legislative history of the bill and the statements of those who wrote it. If you want an excellent review of that history, see this essay by Jon Roland.
Ed, I have always had a problem with this amendment.
First, the 14th amendment does not address "rights", but "privileges and immunities". The wording is either careless, or this amendment addesses something else entirely. While Life and Liberty are rights, driving and voting are privileges, and I am immune to being singled out by government arbitrarily (as in attempting to keep so-called "protesters" out of a court room.)
The second part of this amendment is totally redundant. States must uphold the Constitution. Due process and equal protection are part of the original Constitution.
I do not see where this changed any limitations of states. My rights as an American have always been guaranteed, no matter what state I am visiting, no matter my state of residency, no matter if I am not a resident of any state.
First, the 14th amendment does not address "rights", but "privileges and immunities". The wording is either careless, or this amendment addesses something else entirely. While Life and Liberty are rights, driving and voting are privileges, and I am immune to being singled out by government arbitrarily (as in attempting to keep so-called "protesters" out of a court room.)
What was meant by "privileges and immunities" is made clear by the legislative history of the amendment. When Senator Howard introduced the bill in the Senate in May of 1866, after the joint committee worked out the wording, he put with it an explanation of the "views and motives which influenced that Committee." He explained that the bill was referring specifically to the bill of rights, saying, "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." Randy Barnett and others have compiled much scholarly work to indicate that in fact that was only part of what was intended by "privileges and immunities" and that we should also include the principles setting limits on the proper aims of government found in the Declaration to that list.
I do not see where this changed any limitations of states. My rights as an American have always been guaranteed, no matter what state I am visiting, no matter my state of residency, no matter if I am not a resident of any state.
That simply isn't true. All you need to do is look at the wording of the first amendment, which begins with "Congress shall make no law...". There were some founders who wanted to make those restrictions binding upon the states as well, including most prominently James Madison, but he was voted down in that regard. The constitution, as written originally, was not binding in most cases upon the state, except where specifically indicated in the text. That's why the 14th amendment was required in the first place.
First, the 14th amendment does not address "rights", but "privileges and immunities".
Not exactly. The 14th amendment also addresses equal protection. That means, if the states grant a right to a segment of the population, it cannot deny a corresponding right to another segment of the population--unless there is at least a rational basis for the denial. (I totally agree with Ed Brayton's "privileges and immunities" comment, by the way, but is should be recognized that there is this additional limitation to state discrimination..)
My rights as an American have always been guaranteed, no matter what state I am visiting, no matter my state of residency, no matter if I am not a resident of any state.
I also agree with Ed Brayton's comments about this, but merely want to point out that your rights as an American have never been guaranteed. Take a look at the alien and sedition acts of 1798 and 1916. And the cases of US v. Schenk and US v. Frohwerk. Those cases were from the 1920s. The US Supreme Court upheld convictions for violations of law regulating speech and the press during WWI. The opinion in the Schenk case was the source of the "shouting fire in a crowded theater" quotation, but the case had nothing to do with either "shouting fire" or a "crowded theater."
It should be clear. Your rights as an American have never ever been guaranteed. I hate to tell you, but the fact is that only a fool believes that his rights--whether or not he's an American--are guaranteed. Preservation of rights against government encroachment requires constant vigilance
"The constitution, as written originally, was not binding in most cases upon the state, except where specifically indicated in the text."
I am referring to Article IV of the original Constitution when I say that Amendment 14 is redundant. (I expounded on this on another thread- in your vast web of threads!)
Art. IV, Sec. 2 states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." I am understanding this to mean that it was already specifically indicated in the text that people of all states are to be treated fairly in the spirit of recognizing and honoring each state's differing governances.
Article IV also expresses a basic right of citizens to be protected from arbitrary treatment throughout the several states.
Perhaps the 14th Amendment should have been called a "glorified declaration", because it really does not "amend" the original Constitution.
"The US Supreme Court upheld convictions for violations of law regulating speech and the press during WWI."
Article I, sec. 9 states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Now and then, we had to know that our rights could be suspended, not removed, in the name of public safety. This even applies to a police officer making you pull over and remain parked while he tends to an auto accident on the road... no problem. My rights will be restored when the emergency is over.
Then, of course, the War Powers Act came around, and "suspension of habeous corpus" evolved into a legal form of martial law in this 21st century America...
And then some brilliant, but devious, power-monger types figured out a way for us to remain in a perpetual state of emergency... how convenient!
Now, we citizens are a captive audience...
replete with colored alarms, and plenty of Nothing to do that requires a wiggly EEG line...!
Don't laugh too hard. I've heard the feds argue in court that interstate commerce was involved in a case because the petroleum that was processed into a product bought by the accused came from out of state, even when that purchase had nothing to do with the alleged crime.
Yes and no. Yes to (some) limitations, no to enumerated powers, which is what you originally suggested the Supreme Court should have considered in cases like Lawrence.
My principal point is that this just isn't an appropriate inquiry for the Supreme Court. It can ask if the U.S. Constitution prohibits state action, but not whether it affirmatively grants that power to the state. Only the state supreme court analyzing the powers granted it by its own constitution can do that. I doubt any of them don't claim a general power to regulate moral conduct, even if they do all put limits on the reach of that power.