Sunday, April 17, 2005

During the Q&A of a recent Scalia speech at NYU, one of the law students asked "Do you sodomize your wife?" Scalia replied by saying the question is not worth answering.

Here is an attempt at justification from an email later written by the same student,
It should be clear that I intended to be offensive, obnoxious, and inflammatory. There is a time to discuss and there are times when acts and opposition are necessary. Debate is useless when one participant denies the full dignity of the other. How am I to docilely engage a man who sarcastically rants about the “beauty of homosexual relationships” (at the Q&A) and believes that gay school teachers will try to convert children to a homosexual lifestyle (at oral argument for Lawrence)?

Although my question was legally relevant, as I explain below, an independent motivation for my speech-act was to simply subject a homophobic government official to the same indignity to which he would subject millions of gay Americans. It was partially a naked act of resistance and a refusal to be silenced. I wanted to make him and everyone in the room aware of the dehumanizing effect of trivializing such an important relationship. Justice Scalia has no pity for the millions of gay Americans on whom sodomy laws and official homophobia have such an effect, so it is difficult to sympathize with his brief moment of “humiliation,” as some have called it.


I'm inclined to agree. Scalia wishes to allow the government to peer into the life of every homosexual, to investigate whether any of them has engaged in sodomy, and to jail them if they did. In doing so he transforms what is done between consenting adults in the bedroom from a private act to a public spectacle. He can hardly claim that the question isn't "worth answering" given his often-expressed desire to legally empower the police to obtain answers to the same question by force.

47 Comments:

At 6:38 PM, Anonymous Anonymous said...

do you sodomize your wife?

 
At 7:01 PM, Blogger alex said...

not married!

and on top of that i am not trying to empower our government to take our private sex lives and subject them to police scrutiny, so the question is hardly appropriate directed to me....

 
At 8:12 PM, Anonymous Anonymous said...

if you are not married, can I marry you?

 
At 4:11 PM, Blogger Kate Marie said...

Scalia is a Supreme Court justice -- his position is not about what he personally wishes to "alllow" the government to do, but about what kinds of laws a state may be constitutionally allowed to make -- or conversely, about which state laws should be disallowed because of constitutional considerations.

Have you read his dissent in Lawrence v. Texas? If so, what is your objection to his legal reasoning?

Regarding the question (or speech-act, as the questioner rather pretentiously calls it) posed to Scalia in a public forum -- would you have objected if someone had asked him if he beat his wife? After all, beating one's wife is an act that we all agree that the police should be legally empowered to obtain answers about; does it follow, then, that it's a legitimate question for one private citizen to ask another private citizen in a public forum.

The questioner's tactic seems to be to cast Scalia's legal argument as beyond the pale (as bigoted) and thus to avoid having to debate it on its legal merits. That doesn't work for me.

 
At 4:14 PM, Blogger Kate Marie said...

Here's Scalia's dissent:

http://www.dkosopedia.com/index.php/Lawrence_v._Texas-Dissent_Scalia

 
At 7:15 PM, Blogger alex said...

Dear Kate Marie,

Both I and the student in question are addressing Scalia's political opinions, which he has expressed in various interviews, not his philosophy of jurisprudence.

Scalia has spoken out in favor of laws banning homosexuality such as considered in Lawrence. He has gone quite further than claiming such laws are constitutional. His arguments - as best I remember from various speeches and interviews - usually defend law as the embodiment of a "moral order" and follow it up with wanting to preserve "traditional values" and so on.

And yes, if wife beating were a controversial object of discussion, I would think it would be quite appropriate for those who believe in its criminalization to say they they personally don't engage in it.

 
At 7:46 PM, Blogger angela said...

"or speech-act, as the questioner rather pretentiously calls it"

not to be a biatch, but i think your declaration that the questioner is being pretentious by using the phrase "speech act" is itself pretentious. who made you the diction police? he believed his question was an act of protest and framed it as such. big whoop! dissing the guy's wording while making a case against him injects your argument with the stench of an ad hominem attack.

americans who want to call scalia on his humiliation of gays are living the freedom of speech you pride yourselves on as a nation.

 
At 9:23 PM, Blogger Kate Marie said...

Dear Alex,

"americans who want to call scalia on his humiliation of gays are living the freedom of speech you pride yourselves on as a nation."

-- Duh. Did I claim that the brave interrogator of heterosexist hegemony didn't have the right to ask the question?

"not to be a biatch, but i think your declaration that the questioner is being pretentious by using the phrase "speech act" is itself pretentious. who made you the diction police?"

-- Ummmm, we're getting into Borgesian territory now, right? I can now declare your declaration (that my declaration was itself pretentious) pretentious. In any event, I freely admit my pretentiousness, so I have very little problem being called pretentious. As for my being the "diction police," I'm not going to arrest the guy for using a pretentious phrase (as I see it); I'm simply going to call it pretentious. If you don't agree with me, that's fine -- but I will remind you that we Americans who want to call the questioner on his pretentiousness are living the freedom that we pride ourselves on as a nation.

 
At 9:31 PM, Blogger Kate Marie said...

Oooops, that previous comment was meant to be addressed to Angela, not Alex. Sorry.

Dear Alex,

Can you provide any examples of Scalia's political opinions on the subject?

As for believing law embodies a "moral order," I think it's hard to argue with that. All law is a legislation of morality. As Crispin Sartwell points out in an excellent editorial about John Kerry's illogical position on abortion, all societies agree upon particular values, and all societies enact laws to impose those values: " . . .no human values, whether encoded into law or not, rest on science or reason or unanimous agreement. All human values rest on faith. . . . Moral insights are, ultimately, rationally indefensible, though we could not do without them. If we could not bring our faith to bear on law, we would have to separate the state not from the church but from all human values."

 
At 10:09 PM, Blogger angela said...

kate marie,

so now i see this 'freedom of speech' is basically 'freedom of bitching' and you dont have an appreciation for not being pretentious. at least you aren't going to arrest the guy, right?

i'm going to go back to godlessly authoritarian canada now. peace.

 
At 10:30 PM, Blogger alex said...

Dear Kate Marie,

I will dig up some examples of Scalia expressing personal preferences on these issues. I agree with you, though, that if the rude question is understood as being aimed at Scalia's originalist philosophy, rather than at his political preferences, then it makes no sense whatsoever.

"All law is a legislation of morality. As Crispin Sartwell points out in an excellent editorial about John Kerry's illogical position on abortion..."

I read the same editorial a while back - but I did not find as convincing as you did.

First, I do not agree that all law must be the embodiment of some morality. Why not take a libertarian approach to the matter and legislate away only the things that are essential to the functioning of society (e.g. murder , theft, etc). Under this rubric, acts would be illegal not because they would be wrong in some sense, but because without them society could not function.

Secondly, even if you do think that law must be the embodiment of morality, it does not follow that you should desire to impose each of your moral preferences upon your neighbors. One can believe that only certain principles are fit to be embodied in the law. I may believe it is morally wrong to vote for George W. Bush, without having any _desire_ to legislate my preferences into law. How to distinguish between the two types of moral preferences may be a complex question, but unless you are ready to advocate for a Ministry for the Protection of Virtue and the Prevention of Vice that would enforce all your pet moral decisions, I think you would agree with me.

 
At 11:07 PM, Blogger Kate Marie said...

"First, I do not agree that all law must be the embodiment of some morality. Why not take a libertarian approach to the matter and legislate away only the things that are essential to the functioning of society (e.g. murder , theft, etc). Under this rubric, acts would be illegal not because they would be wrong in some sense, but because without them society could not function."

-- I would argue that even the libertarian approach rests ultimately on certain articles of faith or "values" -- for instance, that the orderly functioning of society is good and desirable.

". . . even if you do think that law must be the embodiment of morality, it does not follow that you should desire to impose each of your moral preferences upon your neighbors. One can believe that only certain principles are fit to be embodied in the law . . . How to distinguish between the two types of moral preferences may be a complex question, but unless you are ready to advocate for a Ministry for the Protection of Virtue and the Prevention of Vice that would enforce all your pet moral decisions, I think you would agree with me."

-- Of course, I DO agree with you, but my point was simply to argue that, given the complex questions involved, it's a mistake to assume that accusing someone of attempting to legislate morality effectively ends the debate.

As for enforcing our pet moral decisions, . . . one who considers a pet moral decision imporant enough (a matter of life and death, for instance, like abortion) will try to persuade others that his position is the right one and ought to be enforced through legislation. If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position. Unless that state is enacting a law that is clearly unconstitutional, I think the actions of its democratically elected legislature ought to be accepted. In other words, I find Scalia's legal reasoning convincing. Do I myself support anti-sodomy laws? No.

 
At 11:10 PM, Blogger Kate Marie said...

"so now i see this 'freedom of speech' is basically 'freedom of bitching'"

-- I prefer to think of it as freedom to confront the anti-bitching hegemony.

 
At 11:46 PM, Blogger alex said...

"I would argue that even the libertarian approach rests ultimately on certain articles of faith or "values" -- for instance, that the orderly functioning of society is good and desirable."

Perhaps we need a concrete definition here before we proceed further. When you say that a set of laws "embodies" some values or "rests" upon them, what, exactly, does this statement mean?

"...it's a mistake to assume that accusing someone of attempting to legislate morality effectively ends the debate."

In many cases, I think it does. Most of the arguments against abortion that I encounter in the course of my daily life are simple variations of "its immoral therefore it must be illegal." Absent any effort to explain why this particular set of values ought to be legislated - and "its murder" does not count by itself as a convincing explanation - an accusation of legislating morality ends the debate against those arguments.

"one who considers a pet moral decision imporant enough (a matter of life and death, for instance, like abortion) will try to persuade others that his position is the right one and ought to be enforced through legislation."

I really don't think "important enough" is a good criterion. Are catholics trying to force everyone to convert to catholicism by force? Don't tell me salvation isn't important! And don't argue that such an action is "clearly uncostitutional" - catholics could instead try to pass a constitutional amendment.

"If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position."

This statement I simply do not understand. If it is an empirical political statement - i.e. this is the sort of thing that happens in practice - I will be happy to furnish you with counterexamples. If it is a statement about what ought to happen, then that binds you to advocating a Ministry for the Protection of Vice and Prevention of Virtue, something you have explicitly rejected.

 
At 3:14 AM, Blogger angela said...

This comment has been removed by a blog administrator.

 
At 3:15 AM, Blogger angela said...

"If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position."

yay for tyranny of the majority

 
At 3:23 AM, Blogger Kate Marie said...

You suggest that we should take a libertarian approach and "legislate away only the things that are essential to the functioning of society." I am arguing that such an approach -- which you imply is free of the taint of legislating morality or "values" -- is NOT so. When I say that even the libertarian approach "rests upon" a particular set of values, I mean that those who advocate the approach (and the imposition of laws against murder, etc.) must answer the question why the orderly functioning of society is to be desired. To answer that question -- to justify the imposition of certain laws in order to ensure the orderly functioning of society -- the libertarian will ultimately have to make a value-based claim -- e.g. that the orderly functioning of society is best because it ensures the greatest good for the greatest number, and "the greatest good for the greatest number is best because . . ." why? If I am an anarchist, or simply someone who sees myself as an ubermensch, beyond good and evil, your establishment of a libertarian state will be an imposition of your values on me.

"Most of the arguments against abortion that I encounter in the course of my daily life are simple variations of "its immoral therefore it must be illegal. Absent any effort to explain why this particular set of values ought to be legislated - and "its murder" does not count by itself as a convincing explanation - an accusation of legislating morality ends the debate against those arguments."

-- Are you suggesting that one specious argument (it's immoral ergo it MUST be illegal) is effectively countered by another specious argument (you can't legislate morality)? I don't find that very convincing. Moreover,once you encounter the "abortion is murder" explanation, you have gotten past the point where "you can't legislate morality" makes any sense as a counter argument. It seems to me that, at that point, the debate can go in one of a few directions: you can argue about the definition of abortion as murder; you can argue about whether abortion is justifiable homocide; or you can argue about whether definitions of personhood and murder should be left to the individual conscience. I find it hard to believe that if someone were to say to you that abortion should be illegal because it's murder, your response would be "you can't legislate morality." Wouldn't you say, "What are your reasons for considering abortion murder?" or "I disagree that abortion is murder?" What if someone said to you, "I believe that killing a two-hour old child should be illegal because it is murder?" Is that reason "by itself" convincing enough for you to get past the "you can't legislate morality" response? Why?

"I really don't think "important enough" is a good criterion. Are catholics trying to force everyone to convert to catholicism by force? Don't tell me salvation isn't important! And don't argue that such an action is "clearly uncostitutional" - catholics could instead try to pass a constitutional amendment."

-- Forgive me, but I'm failing to understand your point here. "Important enough" is a perfectly fine criterion for ANY individual who wishes to persuade others of the merits of ANY form of legislation. If I think that it's a matter of life and death to enact a law requiring cats to be kept on leashes, I'm free to try to persuade others of the merits of my case. If, by some miracle, I am able to convince the majority of individuals in my particular state that we should, indeed, enact a law requiring cats to be kept on leashes, I can think of no basis on which the federal government would be justified in intervening (since such a law, while weird, is clearly consitutional).

"If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position."

-- I'm not convinced you understand my argument here (it's late and maybe I'm being incoherent and unclear), but of course this is an empirical statement. What are laws against prostitution and illegal drugs, or against loitering or selling liquor on Sundays, if not laws that are (or were) supported by an aggregate of people with their "pet" moral positions? To say that this is also what OUGHT to happen (as long as laws enacted are constitutional) doesn't in the least bind me to a "Ministry for the Prevention of Vice and Protection of Virtue" (unless you simply mean the "vice squad"). It's called federalism . . .

 
At 3:52 AM, Blogger angela said...

harm principle, yo.

 
At 10:04 AM, Blogger alex said...

"Are you suggesting that one specious argument (it's immoral ergo it MUST be illegal) is effectively countered by another specious argument (you can't legislate morality)?"

"You can't legislate morality" is not a specious argument. It says quite plainly that the immorality of an act is not, alone, sufficient grounds for making it illegal (and vice versa). As we discussed, some further argument is required.

"I find it hard to believe that if someone were to say to you that abortion should be illegal because it's murder, your response would be "you can't legislate morality.""

Well, believe it!

My usual response is: why should murder be illegal?

This is what I find terribly unconvincing about both your post, the Sarwell editorial, and much conservative rhetoric: you guys tend to assume that if you can argue that abortion is murder, the debate is finished.

It is not. This sort of arguments appear to be driven purely by emotion and not by reason. I'm sorry, "I find it hard to believe" is not a good argument. As we discussed, you need an argument for why murder should be in that class of actions that ought to always be illegal; I have yet to hear a good argument for this.

You offer such an argument when you say it is because the issue is important - a matter of life and death, quite literally. But, if you believe that you are justified in codifying all the values that are really, super important to you into law, then:

i. Clearly, you are also pushing for a constitutional amendment that would modify the first amendment so as to outlaw atheism. Here it is not merely people's lives - it is their eternal lives that are at stake!

And do not reply that you only seek to change the laws within whats constitutionally permissible, not the constitution itself. They are merely two different ways by which you may legally force your values on the other members of society and as such totally equivalent under your "importance" criterion.

ii. Conversely, you also think think that Islamic fundamentalists are quite justified in seeking to veil women, flog adulterers, kill christians within their countries, etc. After all its really important to them!

One obvious reason to reject the "importance" criterion you describe is that is a recipe for chaos. We would be back to the 16th century wars of religion: whichever group had the upper hand would do its best to impose its beliefs by force on the rest, leading to endless cycle of conflict.

-As for, "If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position," as an empirical statement it is demonstratably false. One easy example is religion in england: while 3/4 of UK citizens are christian, and while no constitutional barrier prevents the house of commons from outlawing non-christian religions, freedom of religion remains pretty strong in the UK. It seems that although a huge supermajority made the same moral choice, they have no desire to codify it into law.

 
At 10:53 AM, Blogger alex said...

"When I say that even the libertarian approach "rests upon" a particular set of values, I mean that those who advocate the approach (and the imposition of laws against murder, etc.) must answer the question why the orderly functioning of society is to be desired"

You've adopted a definition that makes "law embodies a moral order" a trivially true and generally not terribly meaningful statement. For any law system, ask those who adopt it why they did so, and voila, theres your moral order!

Essentially, you believe every action we take is a moral action. When we eat food to avoid starving to death, we are actually making a moral statement: that life is good! When we set up laws that allow us to continue living without constant fear of imminent death due to lawlessness, we are making, again, a moral statement thta life is worth living, etc etc.

Clearly, if you view EVERYTHING is "resting" on morality, then law rests on morality too. But again, its not a terribly meaningful or interesting statement.

 
At 1:09 PM, Blogger Kate Marie said...

"-As for, "If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position," as an empirical statement it is demonstratably false. One easy example is religion in england: while 3/4 of UK citizens are christian, and while no constitutional barrier prevents the house of commons from outlawing non-christian religions, freedom of religion remains pretty strong in the UK. It seems that although a huge supermajority made the same moral choice, they have no desire to codify it into law."

-- I cited examples of laws that are based on "pet moral decisions" that enough people considered important to enact into law (against selling liquor on Sundays, for instance). You seem to keep misunderstanding my point . Freedom of religion remains strong in the U.K. (and in the U.S., for that matter) because most people, including me, see it as an important principle, -- that is, precisely because they "have no desire to codify Christianity into law." My point is that if you can convince a majority in a state to enact a law (absent a constitutional barrier), then it gets enacted (see the cat leash example). If you can convince supermajorities to institute a constitutional amendment, then your law may likewise get enacted. As I said, I'm describing federalism. Are you familiar with it? There's not really anything controversial about what I'm describing.

I myself am not making an argument about which moral positions should be codified into law and which should not -- only that states are free to enact laws based "purely" on morality if enough people, or enough democratically-elected legislators, agree to them. There are plenty of moral positions that are really important to me that I would never seek to have codified into law, and plenty of moral positions that a person wouldn't be "justified" for seeking to enact into law. But that's different from whether they are free -- absent a constitutional barrier and in accordance with the principles of federalism -- to try.

"i. Clearly, you are also pushing for a constitutional amendment that would modify the first amendment so as to outlaw atheism. Here it is not merely people's lives - it is their eternal lives that are at stake!"

-- So this is another example of your not understanding my point. Someone COULD push for a constitutional amendment that would outlaw atheism. I would fight it vigorously, as would most Americans (believers and non-believers), but it simply doesn't follow that codifying SOME moral positions into law is illegitimate.

In any event, it seems a bit useless to go back and forth about this. What I described -- perhaps inelegantly -- was federalism. Are you suggesting that federalism either doesn't exist or shouldn't exist?

 
At 1:40 PM, Blogger Kate Marie said...

"This is what I find terribly unconvincing about both your post, the Sarwell editorial, and much conservative rhetoric: you guys tend to assume that if you can argue that abortion is murder, the debate is finished.

-- Read more carefully, then. [By the way, I might point out that Sartwell is not a conservative, and he is "pro-choice."] Here is what I said:

"Moreover,once you encounter the "abortion is murder" explanation, you have gotten past the point where "you can't legislate morality" makes any sense as a counter argument. It seems to me that, at that point, the debate can go in one of a few directions: you can argue about the definition of abortion as murder; you can argue about whether abortion is justifiable homocide; or you can argue about whether definitions of personhood and murder should be left to the individual conscience."

-- Does that suggest that the debate is finished?

"As we discussed, you need an argument for why murder should be in that class of actions that ought to always be illegal; I have yet to hear a good argument for this."

-- I don't argue that killing someone ought always to be illegal, and neither do our laws (the self-defense justification is an example). But if you'll give me a definition of murder -- don't want to assume anything -- I'll attempt an argument about why it should be illegal.

What if we decided overwhelmingly as a society that we would be better off getting rid of our "mental defectives"? If it wouldn't interfere with the oderly functioning of society, and if we werent' too fastidious about encoding purely moral positions into laws, what would the objection be?

By the way, I find it interesting that you have resorted to sweeping generalizations about "conservative rhetoric." You'll note that I have not done the same. I'm not above being puerile about it, however, since you started it. What I find most unconvincing about "liberal" rhetoric is the facility with which liberals slip from debate on specific issues to distorted generalizations about conservative opinion.

 
At 4:39 PM, Blogger Kate Marie said...

"yay for tyranny of the majority."

"Yay" for glib scatter-shot cant that exhausts itself in spouting facile non sequiturs.

 
At 7:58 PM, Blogger angela said...

This comment has been removed by a blog administrator.

 
At 8:03 PM, Blogger angela said...

how can i put this mildly... i feel sorry for your kids? my points aren't non sequiturs. i didn't feel the need to write you a big huge essay about john stuart mill and i assumed a pretentious hack such as yourself would be familiar with a few of his key principles seeing as theyve seeped into everyday democratic discourse. i have finals, know what im saying? ive exhausted myself writing papers and review notes. it's fine that you spend this much time arguing on the blogosphere. it makes me look forward to getting old. really.

 
At 8:03 PM, Blogger angela said...

how can i put this mildly... i feel sorry for your kids? my points aren't non sequiturs. i didn't feel the need to write you a big huge essay about john stuart mill and i assumed a pretentious hack such as yourself would be familiar with a few of his key principles seeing as theyve seeped into everyday democratic discourse. i have finals, know what im saying? ive exhausted myself writing papers and review notes. it's fine that you spend this much time arguing on the blogosphere. it makes me look forward to getting old. really.

 
At 11:15 PM, Blogger Kate Marie said...

"how can i put this mildly... i feel sorry for your kids?"

-- How can I put this mildly . . . I feel sorry for your parents? My kids feel sorry for your parents? My parents feel sorry for your parents? My kids and my parents feel sorry for your future kids? My husband feels sorry for your boyfriend (or girlfriend -- don't want to buy into the heterosexist hegemony).

"my points aren't non sequiturs. i didn't feel the need to write you a big huge essay about john stuart mill and i assumed a pretentious hack such as yourself would be familiar with a few of his key principles seeing as theyve seeped into everyday democratic discourse."

-- Ummmmmmm, I think it's really great that you've read JSM and all, but when I called your "point" a facile non sequitur, it wasn't because I haven't read JSM, but because -- how to put this? -- your point was a facile non sequitur. It does not follow that the federalism I described constitutes a tyranny of the majority, unless you are going to claim that any system of majoritarian rule consititutes a tyranny of the majority. I assumed that a, like, rilly cool thinker such as yourself would be familiar with the principles of federalism, seeing as they've seeped into everyday democratic discourse. In any event, if your homework load makes it impossible for you to flesh out your ideas, you might want to reconsider the scatter-shot approach. It doesn't do your brilliance justice.

"it's fine that you spend this much time arguing on the blogosphere. it makes me look forward to getting old. really."

-- It's fine that you spend this much time NOT arguing on the blogosphere. It makes me glad I'm past my callow youth. And what you SHOULD look forward to is getting wise.

(I must say I'm pretty amused by how defensive you get when your glib comments are treated in the same glib spirit in which they're given. Yay for Canadian inferiority complexes!)

 
At 12:48 AM, Blogger angela said...

it wasnt that you were being glib, because i found your outbursts more vitriolic than glib. basically, it just amazes me how seriously pissed you got over me interjecting with some mill stuff.

i dont think i will ever be 'wise' and i dont consider myself a 'thinker' or 'rilly cool' ... im pretty pedestrian, really. and i dont consider this canadian inferiority as much as catholic humility :)

what is peculiar is your continued insistence that this is about federalism, while sometimes invoking the unitary uk as supporting evidence. basically, this is less about federalist theory and more about democratic legal theory.

the problem lies with people who do not like being called prejudiced because the liberal lexicon of western democracies has characterized 'prejudiced' as an insult. consequently, people think it is unfair when people call them on their prejudice because they feel they are being attacked.

prejudiced is not an insult, it is a descriptive term, and an apt one for someone who wants to deny gay rights.

given scalia's colourful statements, it is not unfair, as alex suggested, to confront him.

your insistence (via sartwell) that even libertarian societies rest on precepts of morality that are ultimately articles of faith isn't very sound when you consider jurisdictions which operate by convention and not always their constitutions/legislatures. the fluidity of their guiding principles make them relativist.

 
At 3:26 AM, Blogger Kate Marie said...

"what is peculiar is your continued insistence that this is about federalism, while sometimes invoking the unitary uk as supporting evidence.

-- Please point to the parts of my comments where I invoked the unitary U.K., except in response to Alex's examples.

"basically, this is less about federalist theory and more about democratic legal theory."

-- Do you suggest that the two are not related? In any event, since no one here has bothered to refute the legal theory behind Scalia's dissent, we haven't specifically been discussing legal theory.

"given scalia's colourful statements, it is not unfair, as alex suggested, to confront him."

-- I'm still waiting to see which of Scalia's "colorful statements" you are referring to. Have you read his dissent in Lawrence v. Texas? What are your objections to his legal reasoning?

"your insistence (via sartwell) that even libertarian societies rest on precepts of morality that are ultimately articles of faith isn't very sound when you consider jurisdictions which operate by convention and not always their constitutions/legislatures. the fluidity of their guiding principles make them relativist."

-- You're going to have to clarify what you mean by this. Could you give me an example of a jurisdiction operating by "convention"? As for relativism and the "fluidity of guiding principles" -- again, you're going to have to define your terms a little more clearly. What do you mean? I may be misunderstanding your statement, but it seems to me that "fluidity of guiding principles" doesn't necessarily entail relativism; that is, "fluidity of guiding principles" doesn't necessarily imply that a particular "jurisdiction" considers all laws/cultures/moral systems relative; it could merely imply that the "fluid" jurisdiction keeps changing its mind about what it values ("this system is best; no, THIS system is best; no, THIS system is best after all" -- that's not relativism, just flakiness.)

Are you suggesting that relativism is desirable? If so, on what basis do you presume to tell the state of Texas that they can't have anti-sodomy laws? On what basis do you presume to tell any state, or any nation, that they should not legislate morality?

In any event, perhaps I'm misunderstanding your last paragraph. Maybe you could provide some examples and clarify your statements.

Now, as for my alleged vitriol -- I can only plead my case by saying that I countered what I perceived to be the sarcasm of your comment ("Yay for tyranny of the majority") with sarcasm of my own. So I was engaging in a childish "she started it" game. However, your reference to your "Catholic humility" has shamed me into reconsidering the way I've responded to you here. So I will confess that my own lack of humility is one of my worst traits, and that I take delight in my own acerbic sarcasm when I feel (perhaps for no good reason) that I have been provoked. I apologize for the way I responded to you. I sometimes forget, when I'm dealing with the blogosphere, that behind all the words and discussions and debates are real human beings who are trying, in some sense, to have a conversation. I responded to you in a way that I never would (well, almost never) if I were speaking with you face to face. So I hope you'll forgive me for my vitriol.

 
At 3:45 AM, Blogger Kate Marie said...

This is from Scalia's dissent in Lawrence v. Texas:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. "

 
At 11:35 AM, Blogger alex said...

Dear Kate Marie,

Hey, a bit of vitriol can be good now and then. I personally found the preceeding exchange quite entertaining.

I'll break up my answer into two posts: in this one I will try to answer the various tangential issues, and in the next i'll try to get back to to morality and the law.


angela wrote, "basically, this is less about federalist theory and more about democratic legal theory."

I really think you need to concede that you have been using "federalism" where you should have been using something like "democracy." Federalism has to do with states comprised of semi-autonomous regions, and absolutely nothing of what you have said bears any relation to the federal government/semi-autonomous state divide.

"Do you suggest that the two are not related?"

Every concept is political theory bears some relation to every other concept; but federalism is not democracy and democracy is not federalism. Do you think your comment about the majority instituting their values through law would apply to Nigeria under the dictatorship of Gen. Abacha - a federal state - or the United Arab Emirates, another federal state governed dictatorially by a council of sultans? I doubt you would argue that these comments apply to federal dictatorships.

"On what basis do you presume to tell any state, or any nation, that they should not legislate morality?"

On the basis of historical experience. I realize that you were asking for a philosophical answer and I am trying to give a pragamtic one. I think even a cursory look at the history of Europe (or the M iddle East) reveals that attempts by the majority to force their values on the rest of society in any significant way is a recipe for political instability.

"By the way, I find it interesting that you have resorted to sweeping generalizations about "conservative rhetoric.""

Were my generalizations truly "sweeping?" I criticized "much of conservative rhetoric." I'm not quite sure why you have a problem with this. While every liberal, and every conservative, has arguments of his own, it is inevitable that a group that argues for similar positions make arguments that overlap in many ways. These overlaps can be identified and debated. If you would like, I would be happy to provide you with both positive and negative examples of what I perceive as characterizing much of "liberal rhetoric."


"Moreover,once you encounter the "abortion is murder" explanation, you have gotten past the point where "you can't legislate morality" makes any sense as a counter argument. It seems to me that, at that point, the debate can go in one of a few directions: you can argue about the definition of abortion as murder; you can argue about whether abortion is justifiable homocide; or you can argue about whether definitions of personhood and murder should be left to the individual conscience."

-- Does that suggest that the debate is finished?"

Yes, it does. As I said, even if you agree to "abortion is murder" it does not mean that you are in any sense past the "you can't legislate morality" point. This is what I was referring to: there is a collective assumption that "murder" is in some sense an effective counter-argument to "you can't legislate morality," an end to that strand of the debate. It is not: as we discussed, you need something additional to argue that repugnance to murder is one of our values that we can legislate.

Finally, lets go back to a passage you wrote a few comments ago:

"As for enforcing our pet moral decisions, . . . one who considers a pet moral decision imporant enough (a matter of life and death, for instance, like abortion) will try to persuade others that his position is the right one and ought to be enforced through legislation. If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position.Unless that state is enacting a law that is clearly unconstitutional, I think the actions of its democratically elected legislature ought to be accepted."

This you later claimed is merely a description of how federalism works!

For one thing, as I said before, this should be not federalism but democracy or republic or republican democracy or whatever (believe it or not, some people get really anal about definitions when I use "democracy" in a loose way).

But anyway, this is not how democracy or federalism works. Specifically the following sentence "If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position" is flat out wrong. The state no doubt can enact any law that is not unconstitutional, but it is simply not true that it will - and the example I gave of England -which, again, has no constitutional protection the parliament can't override - remains an effective counterexample. It is entirely possible for a huge supermajority to make a pet moral choice, and yet believe, as a matter of principle, that "enforcing it through legislation" is a bad idea.

You yourself are a good example: I sincerely doubt that if the first amendment were stricken from the constitution, you would move to outlaw all religions beside yours - even hypothetically assuming your religion enjoyed a huge supermajority in United States. The point is that the supermajority that makes a moral preference may believe in a variety of principles that prevent it from enforcing that principle through the law. So if that passage was meant to be nothing but a description of federalism or democracy, whichever, it is a woefully inaccurate one. The same goes for the sentence "ne who considers a pet moral decision imporant enough (a matter of life and death, for instance, like abortion) will try to persuade others that his position is the right one and ought to be enforced through legislation." Again, not everyone who considers a choice a matter of life or death - take religion, which is even more important, being a matter of eternal life and death - will seek to have his choice enforced through legislation.

" I'm still waiting to see which of Scalia's "colorful statements" you are referring to."

I'm still looking! Unfortunately, almost all google searches of "Scalia" and "homosexuality" point to comments on his Lawrence dissent and I am having a hard time finding the interview from a while back where he personally expressed support for the laws considered in Lawrence and Bowers.

 
At 11:51 AM, Blogger alex said...

As for morals and legislation - I was going to write something long here but upon rereading the comments, I think for the past few posts we have been talking past each other on this issue. The reason for this is that I have been talking about how I think things ought to be, while you were talking about how things are.

Certainly, anyone is free to try to convince others of anything they want - its a free country. I would suggest though - and I'm sure you agree with me - that we generally need to be skeptical of arguments that demand a personal moral choice be enshrined in the law and, while being open to the fact that some values do need to be enforced through law, we need to demand some damn good reasons why this particular moral deserves to be enforced through legislation.

My personal bar for these arguments is so high that almost none of them go through - but some do. For example, every pro-growth policy is in some sense an imposition of values - national wealth over national poverty - that I don't feel uncomfortable supporting.

Going back to Kerry's position, will you at least agree with me that it makes perfect sense - as much as you can expect a short few sentence summary to make sense? No one has asked him, or any other politician for that matter, what his criterion for the imposition of personal values on the rest of society is; but is there anything at all contradictory about claiming this one value does not pass the bar?

 
At 12:27 PM, Blogger Kate Marie said...

This is sort of disjointed, but I had to respond quickly.

"I really think you need to concede that you have been using "federalism" where you should have been using something like "democracy." Federalism has to do with states comprised of semi-autonomous regions, and absolutely nothing of what you have said bears any relation to the federal government/semi-autonomous state divide."

I don't concede at all. Have you read The Federalist Papers? THAT'S what I'm talking about. James Madison would be shocked to know that "federalism" doesn't apply to the American system.

No, I don't think my comments apply to Nigeria because when I said states I meant states that are part of the U.S. (maybe I should have made that clear).

"For one thing, as I said before, this should be not federalism but democracy or republic or republican democracy or whatever (believe it or not, some people get really anal about definitions when I use "democracy" in a loose way)."

-- Again, I think you need to take a longer look at the term "federalism."

But anyway, this is not how democracy or federalism works. Specifically the following sentence "If enough people share the pet moral decision, a state will enact laws that accord with that particular moral position" is flat out wrong. The state no doubt can enact any law that is not unconstitutional, but it is simply not true that it will - and the example I gave of England -which, again, has no constitutional protection the parliament can't override - remains an effective counterexample. It is entirely possible for a huge supermajority to make a pet moral choice, and yet believe, as a matter of principle, that "enforcing it through legislation" is a bad idea."

-- Why do you keep misunderstanding my point here? And why have you not addressed any of the examples I provided? No, I don't claim that because a state (as in Texas, just to be clear) CAN enact laws like that that it WILL enact laws like that. I claim that if someone in a state convinces enough people to vote to enact laws like that, the state will and can enacts laws like that. What's so hard to understand about that? I even provided examples of laws like that.

Maybe it could be better put like this: if someone (or a group) convinces the majority of citizens of a state to enact a pet moral position into law, they have convinced a majority of citizens or a state to enact a pet moral position into law. Does this happen? Yes -- laws against buying liquor on Sundays are a good example. I'm a bit baffled by the fact that we can't get beyond this.

"Certainly, anyone is free to try to convince others of anything they want - its a free country. I would suggest though - and I'm sure you agree with me - that we generally need to be skeptical of arguments that demand a personal moral choice be enshrined in the law and, while being open to the fact that some values do need to be enforced through law, we need to demand some damn good reasons why this particular moral deserves to be enforced through legislation."

-- That's a statement I wholeheartedly agree with. So we can clasp hands across the bloody chasm!

"Going back to Kerry's position, will you at least agree with me that it makes perfect sense - as much as you can expect a short few sentence summary to make sense? No one has asked him, or any other politician for that matter, what his criterion for the imposition of personal values on the rest of society is; but is there anything at all contradictory about claiming this one value does not pass the bar?"

-- No, I don't agree, and the Kerry point was tangential to the legislating morality issue. In any event, Kerry's position doesn't make sense since he essentially said that he personally believes abortion is murder. If you're claiming that what he really meant was that this particular kind of murder didn't pass the bar for legislating morality, that makes no sense. We don't reargue, as Sartwell points out, murder laws -- the definition of murder, the definition of -- personhood or "human being"-- every time we have a murder trial. Murder is against the law -- it's already an issue where (by historical precedent, to use your own terms)we have decided to legislate morality. If someone were to murder a day old child, they wouldn't have the luxury of arguing that our general law against murder shouldn't apply in THAT particular case.

 
At 12:31 PM, Blogger Kate Marie said...

Here's the first definition of federalism I found:

"A form of political organization in which governmental power is divided between a central government and territorial subdivisions--in the United States, among the national, state, and local governments."

 
At 12:36 PM, Blogger alex said...

A similarly brief response for me:

The United States, the United Arab Emirates, and Nigeria are three countries that practice federalism.

If you want to make a statement about federalism, that statement should apply to the United States and the UAE and Nigeria when it was under the dictatorship of Abacha - to all three. If does not apply to all three, then either its false, or you have something other than federalism in mind.

 
At 12:48 PM, Blogger Kate Marie said...

That doesn't work, Alex. If you want me to admit that I am willing to apply the principles of federalism as practiced in the U.S., with the protections of the U.S. constitution, to Nigeria and U.A.E., then my answer is yes.

It's perfectly legitimate for me to speak of the way federalism works in the U.S. And I am, and have been, describing federalism. It's also sometimes called "state's rights."

 
At 12:51 PM, Blogger Kate Marie said...

Sartwell explains the absurdity of Kerry's position better than I can right now:

"Here's John Kerry's position on abortion. He's personally opposed to it, and as a matter of faith he believes that life begins at conception. But he's unwilling to impose that faith on women who may not share it. It should be a matter of individual conscience, he says.

This position, I submit, is a self-serving and obvious absurdity.

Murder, let us agree, is the intentional killing of a human being in the absence of excusing conditions such as self-defense by the killer or overwhelming suffering on the part of the killed. Clearly, by his own definition, Kerry believes abortion is murder.

If there should be a law against anything, most Americans would agree, it's murder. Radical anarchists might differ — they might say that murder, and any other act, should be a matter merely of individual conscience and not of law. But I think we can assume that that is not Kerry's position.

The other part of Kerry's argument is that because his position rests on faith — rather than on reason or science or unanimous agreement — he is unwilling to impose it on others, and he believes it would be a violation of the separation of church and state to do so.

But that doesn't stand the test of logic either; no human values, whether encoded into law or not, rest on science or reason or unanimous agreement. All human values rest on faith.

Let us say, for instance, that Scott Peterson's lawyer demanded that the prosecution show — employing no unjustified assumptions — that first, Laci Peterson was a human being and that second, killing human beings is wrong. The prosecution would have to call in a philosopher and maybe a priest as well, because all the science in the world wouldn't help. And any answer they offered would depend on numerous undefined terms and unjustified assumptions.

Suppose they argued that killing people has bad results. However, sometimes it does and sometimes it doesn't. And what does the badness of the results consist of, without some set of moral assumptions?"

 
At 12:58 PM, Blogger alex said...

More on the other stuff later but for now on federalism:

Federalism is not the same thing as "federalism as practiced in the U.S." The latter includes a whole bunch of things that the former may not; things like democracy, the constitution and bill of rights, and so on.
If you want to make claims about the latter, it is inappropriate to say you are making claims about the former.

 
At 1:55 PM, Blogger Kate Marie said...

Okay -- I'm making claims about federalism as practiced in the U.S. I thought that I had already made that point clear several times already. My bad.

So, when I said I was describing federalism, I was describing federalism as practiced in the U.S. (we were talking about U.S. legal reasoning, etc., so I assumed when I said "federalism," it would be understood that I was referring to the long tradition of federalism in the U.S.).

 
At 8:10 PM, Blogger alex said...

Right. Now if you ask what is the feature of our system of gov't that allows us to enact legislation should we so desire, its clearly its democratic nature. This is what angela meant when she wrote,

"this is less about federalist theory and more about democratic legal theory."

Anyway. To the Kerry abortion statement. The crux of your argument seems to be,

"Murder is against the law -- it's already an issue where (by historical precedent, to use your own terms)we have decided to legislate morality."

We have?

The crux of Sartwell's op-ed is similar,

"Radical anarchists might differ — they might say that murder, and any other act, should be a matter merely of individual conscience and not of law. But I think we can assume that that is not Kerry's position."

Look at that: assume away the piece that makes Kerry's position coherent, and, voila, its incoherent! Top that off with labelling adherents of this position as "radical anarchists." Whether its "radical" depends on one's definition, but its anything but anarchist.

Anyway, to counter: we have not legislated murder away. Sartwell defines murder as "the intentional killing of a human being in the absence of excusing conditions such as self-defense by the killer or overwhelming suffering on the part of the killed." Funny, just the other week in Florida a lady got legally killed who was not threatening anyone, nor was she suffering in any plain sense of the word. Whatever you think of the Shaivo decision, I really don't see how you can continue to claim we have legislated murder away.

 
At 8:14 PM, Blogger alex said...

Oh and by the way: the great state of georgia - of which I am, unfortunately,a former resident - allows you to kill anyone you see breaking into your car.

 
At 11:54 PM, Blogger Kate Marie said...

I'm about to say -- a la Roberto Duran -- "no mas." I've hogged the comments on this post for far too long, and I'm starting to feel guilty. I appreciate your engaging the discussion, though.

So this might be my last time unto the breach.

"Now if you ask what is the feature of our system of gov't that allows us to enact legislation should we so desire, its clearly its democratic nature. This is what angela meant when she wrote,

'this is less about federalist theory and more about democratic legal theory.'"

-- Yes, but if you ask what feature of our government allows states to enact legislation that may be unpopular in other states without fearing the intervention of the federal government (as always, absent a constitutional barrier), the answer would be federalism. I brought it up in the first place because it's one of the essential principles that Scalia relies on in his dissent. It underpins his statement, for instance, that he "would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so."

As for Kerry and abortion -- do you honestly -- in your heart of hearts -- think that John Kerry meant to espouse the "radical anarchist" view of murder? [I don't see why it can't be called anarchist, since the way that Sartwell described the view was radically anti-government, or anti-external-government]. If he (Kerry) really meant that, then I'll grant you that his position is not absurd. If he agrees, like most of us, that murder should be against the law, then his position IS absurd. I guess it'll have to wait until I can ask him about it at some "town hall forum." Shall we lay a wager on whether he'll take the "radical" view?

Let me ask you this. Do YOU believe that murder should be against the law? Why or why not? What about the example of getting rid of "mental defectives" that I asked about in an earlier comment? Would there be anything wrong with that?

I don't believe I ever claimed we could "legislate murder away." Murder is a crime and those who commit it are subject to punishment by the state, but, people being what they are, murder will never be "legislated away."

I'm not sure I understand your point about the Schiavo case. Because the state of Florida legally starved someone to death, it makes sense to say that abortion is murder but it shouldn't be illegal?

 
At 3:59 AM, Blogger angela said...

alex, making my points for me... so chivalrous of you. post something new!

 
At 11:00 AM, Blogger alex said...

"I'm not sure I understand your point about the Schiavo case."

You had previously wrote,

"Murder is against the law -- it's already an issue where (by historical precedent, to use your own terms)we have decided to legislate morality."

This statement is flatly contradicted by the Schiavo case. Since your argument against Kerry's position rests on this statement, it disproves your argument as well. We have not made murder illegal, we have not decided to legislate morality on this issue. We have certainly made some types of murder illegal, but not all, as any casual observer of the Schiavo case can note.

"I don't believe I ever claimed we could "legislate murder away."

Sorry for being unclear. By "legislate away" I meant "make illegal."

As for asking Kerry in a town hall forum, feel free, and I'll accept your wager. But I really don't see why you need to, since Kerry has already told you what he thinks. He said he thinks having an abortion is killing a human being, and he is against making it illegal.

As for calling the position "anarchist" - that makes little sense. Can I call Republicans who oppose socialized health care "anarchists?" After all, more socialism means more government and they oppose it, hence they are anarchists! This seems to be roughly the logic behind calling the position here "anarchist" and its downright silly. The point, quite simply, is that anarchism is the opposition to all government; an opposition to a specific action of government is not necessarily anarchist.

"Do YOU believe that murder should be against the law?"

No. At least, not according to the definition supplied by Sartwell. For one thing, capital punishment is, according to Sartwell's definition, murder. Recall, it is
"... the intentional killing of a human being in the absence of excusing conditions such as self-defense by the killer or overwhelming suffering on the part of the killed." Both I and Kerry would not degree this should always be outlawed; we'd put in a few more of exceptions there before agreeing.

I'd support the outlawing of murder, provided my exceptions are added in, (the final result would be something basically close to the laws we have now) on the grounds that it is the bare minimum needed for society to function. I'd oppose adding outlawing anything more because I see no compelling reasons to impose the set of values of further restrictions would involve.

"What about the example of getting rid of "mental defectives" that I asked about in an earlier comment?"

Again, it all depends on what you mean by "mental defectives." We already do have such a policy, for example, for infants born with anencephalic disorders (without a brain, for all practical purposes) which are usually denied the care they are needed to survive. In any case, I see no reason for the state to intervene in cases of this sort.

On the other hand, as I mentioned before, I think economic issues are fundamentally different. For one thing, we all have roughly the same values, prefering wealth over poverty, stable growth over repeated booms and busts. The imposition to you done by, say, stimulating the economy Bush style, or having a federal reserve control the worth of your money seems largely minimal, so a libertarian approach is uncalled for.

 
At 11:03 AM, Blogger alex said...

"so chivalrous of you. post something new!"

The events of the last few days - new Pope, Berlusconi's resignation, Bolton nomination - have left me yawning. When two African nations insult each other again, you'll find out about it on my blog.

 
At 12:02 PM, Blogger angela said...

are you saying italians are boring? i think you are. and i think im offended. be good.

 
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