Friday
Laws as Fairness?
I've tried to explain my view on the incident between one of my fellow students and Scalia below, and in comments both at this site and elsewhere. But I don't think I've done that great a job, since other people still think I'm wrong and I think I'm right.
Will posted his take earlier today, which I think gets it pretty much right. In response to a defense of the questioner's actions, he says, "This is clever, but confused. There's no particular reason that the notion of "privacy" for purposes of academic and social etiquette should perfectly track the notion of "privacy" for purposes of constitutional law. Etiquette is a bottom-up institution determined by the evolving standards of society. Law (at least written constitutional law and statutory law, if not common law) is laid down in written rules set forth in large books. It would be passing strange if the legal standards devised by the 39th Congress and ratified by mid 19th-century citizens rose or fell with the evolving standards of etiquette."
I say pretty much right because I think his argument here is overly dependent on his general textualism, and I'd like to persuade people who aren't textualists that my classmate was wrong. Also, etiquette seems like a weak term. I want to say more than that it was bad etiquette. That is, I don't see how the ethical standards for what it is proper to ask someone have to do with legal standards, even if one believes that the law is a brooding omnipresence in the sky. So I don't see how the question has anything to do with Scalia's position in general.
Finally, I don't find the argument that Scalia just deserves to be insulted in general to be very persuasive. There are two reasons for this. First, granting that Scalia holds bigoted, anti-homosexual views, does it really mean that people should go out of their way to offend him in all of his public appearances? Given that he was in some sense doing the community a courtesy by being available for public questioning by any interested party, wasn't this a uniquely poor situation to mock him? Tied into this, he is one of the prime expositors of a view of the law which is important both academically and in actual practice. It seems that it is worth hearing him speak to hear this even if he also holds disgusting views about gay rights. This second reason probably isn't as strong as the first. But I do want to be clear that my position isn't that "civility is so important that no one should ever be insulted, no matter how heinous their view."
Somehow, Wonkette has gotten hold of the student's defense of his own actions. It was circulating on NYU listservs, but I don't know if he sent it to Wonkette himself or if some other person with access to the listservs sent it to her.
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Will posted his take earlier today, which I think gets it pretty much right. In response to a defense of the questioner's actions, he says, "This is clever, but confused. There's no particular reason that the notion of "privacy" for purposes of academic and social etiquette should perfectly track the notion of "privacy" for purposes of constitutional law. Etiquette is a bottom-up institution determined by the evolving standards of society. Law (at least written constitutional law and statutory law, if not common law) is laid down in written rules set forth in large books. It would be passing strange if the legal standards devised by the 39th Congress and ratified by mid 19th-century citizens rose or fell with the evolving standards of etiquette."
I say pretty much right because I think his argument here is overly dependent on his general textualism, and I'd like to persuade people who aren't textualists that my classmate was wrong. Also, etiquette seems like a weak term. I want to say more than that it was bad etiquette. That is, I don't see how the ethical standards for what it is proper to ask someone have to do with legal standards, even if one believes that the law is a brooding omnipresence in the sky. So I don't see how the question has anything to do with Scalia's position in general.
Finally, I don't find the argument that Scalia just deserves to be insulted in general to be very persuasive. There are two reasons for this. First, granting that Scalia holds bigoted, anti-homosexual views, does it really mean that people should go out of their way to offend him in all of his public appearances? Given that he was in some sense doing the community a courtesy by being available for public questioning by any interested party, wasn't this a uniquely poor situation to mock him? Tied into this, he is one of the prime expositors of a view of the law which is important both academically and in actual practice. It seems that it is worth hearing him speak to hear this even if he also holds disgusting views about gay rights. This second reason probably isn't as strong as the first. But I do want to be clear that my position isn't that "civility is so important that no one should ever be insulted, no matter how heinous their view."
Somehow, Wonkette has gotten hold of the student's defense of his own actions. It was circulating on NYU listservs, but I don't know if he sent it to Wonkette himself or if some other person with access to the listservs sent it to her.
