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April 19, 2005

Someone Hire This Kid

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Posted by Alan Wexelblat

To put it mildly, Justice Antonin Scalia got "more than he bargained for" when he agreed to answer NYU Law students' questions. Student Eric Berndt asked Scalia to explain his dissent in Lawrence v. Texas, the case that overturned Bowers v. Hardwick and struck down sodomy laws. Not satisfied with the answer, Berndt asked Scalia, "Do you sodomize your wife?"

In an open letter (here reprinted as an op-ed in The Nation), Berndt explains his reasoning and why he felt it necessary to engage in what was clearly a hostile form of expression.

Comments (9) + TrackBacks (0) | Category: Speech


1. Crosbie Fitch on April 19, 2005 2:05 PM writes...

Is heterosexual sodomy legal?

If not, would Scalia be permitted to incriminate himself by answering in the positive?

If not, then presumably Scalia could not answer the question truthfully and thus was obliged to demur.

That's the trouble with the law. It's polluted by the 'right-minded' on a mission to tell people how they should behave nicely, rather than how they do behave nicely.

We all share music. We're all sodomists. Well, at least the majority who enjoy a bit of culture anyway. And which penalty would be preferable? Being sued for thousands by the RIAA for sharing music, or... what's the punishment for sodomy these days?

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2. Dr. wex on April 19, 2005 3:11 PM writes...

The point of Lawrence was that the state has no compelling interest in criminalizing or inquiring into adult sexual contacts. Scalia's dissent in that case portrayed the intrusion as minimal. Berndt's point, as he eloquently puts it, is that the intrusion is far from minimal. The point of law, in general, is to tell people how they should behave - it's got nothing to do with "right-minded people". If there's a point to your comment, I'm missing it.

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3. Crosbie Fitch on April 19, 2005 3:41 PM writes...

The point of the law is to tell people how they DO behave, i.e. in a free, democratic society, the law represents the codification of how people behave with each other (to the minimum extent tolerable). It must therefore adapt with the people.

The point of the church (and other 'right-minded' people) is to tell people how they SHOULD behave. Various bibles pretend to represent a definitive 'moral law' and do not adapt with the people (though some try and adjust their interpretations of it).

The problem with sodomy is that some rules have leaked from one book into another.

However, my primary point is to wonder if Scalia had a good reason for failing to answer a perfectly good question.

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4. Rafael Venegas on April 19, 2005 4:24 PM writes...

I must take exception with the following text: "The point of the law is to tell people how they DO behave, i.e. in a free, democratic society, the law represents the codification of how people behave with each other (to the minimum extent tolerable).".

The law is not a codification. It is a plate of spaghetti which hardly anyone with a law degree can fully understand. Go to 10 lawyers for a leagal opinion and you get ten answers, depending on which jurisprudence the lawyer remembers or finds first among the contradictory jurisprudence our there. The idea that ignorance of the law is no excuse is nonsense because laws are incomplete without the jurisprudence and with jurisprudence the confussion of the law is complete.

I have always wondered , why are not laws updated with jurisprudende? Why, that would mean that the laws are written in the court, not the legislature. Anyway, clear and simple laws are bad for the legal business and require smarter people (not smart politicians) to write. That is why they are likely to stay that way. That is why so many things are illegal and everyone is a criminal.

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5. Crosbie Fitch on April 19, 2005 5:50 PM writes...

OK, you're right, the law is a pile of doggie do. However, at least it's supposed to reflect society, even if reading law is a more arcane art than reading tea-leaves.

Maybe it's good that there's an inevitable shear force between the way society is going and the way the law incompetently attempted to codify what society was 50-500 years ago?

"Thou shalt not republish another's manuscript" becomes "The provenance of every binary digit must be exhaustively recorded for the hindsight of the judiciary in all networked communications".

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6. Gavin on April 19, 2005 7:23 PM writes...

I'm sort of failing to see what this has to do with the copyfight.

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7. Crosbie Fitch on April 20, 2005 5:06 AM writes...

I suspect editorial rigour costs money.

I did my best to try and link sodomy to copyright issues...

Basically, it's another example of the law being an ass, applying anachronisms where they are patently counter popular practice.

It is not that file-sharing is wrong, but that the law against it is based upon the pragmatics of the Dickensian era - and supported by industries still clinging to business models wholly incompatible with the instantaneous diffusion provided by the Internet.

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8. Dr. wex on April 20, 2005 12:01 PM writes...

I specifically put this post into the "Speech" category. Whether it's relevant to digital music or not is both a bit of a stretch (link Berndt's question to challenging rap lyrics) and beside the point.

As I've tried to say a few times, I feel that the point of copyfighting is to create a space for free and open expression, whatever the medium. What SCOTUS members think is highly relevant to that, as is how they respond to challenges to their views.

To quote Salman Rushdie: "What is freedom of expression? Without the freedom to offend, it ceases to exist."

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9. Crosbie Fitch on April 20, 2005 12:30 PM writes...

The whole 'offense thing' is overblown if you ask me. Berndt's question was not offensive in the given context. If the law and lawyers/justices like Scalia have business asking the same question of the general populace then Berndt has business asking it of Scalia. Moreover, I find it difficult to believe that an old hand like Scalia would be fazed by such a question. This is precisely why I wondered if there was a better reason than say indignation as to why Scalia failed to answer the question.

As to free and open expression, well copyright definitely and unnecessarily restricts it.

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