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"Justice Scalia, do you sodomize your wife?"

26. April 2005 • Scott Trudeau
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We mentioned earlier the protests of Supreme Court Justice Antonin Scalia at U-M. At NYU Law a student chose another form of critical engagement:

Randomly selected to attend the limited-seating and closed-to-the-press event, NYU law school student Eric Berndt asked Scalia to explain his dissent in Lawrence v. Texas, the 2003 Supreme Court case that overturned Bowers v. Hardwick and struck down the nation’s sodomy laws. Not satisfied with Scalia’s answer, Berndt asked the Justice, “Do you sodomize your wife?”

> The Nation: Debriefing Scalia



  1. I was there (literally, 30 feet from Eric (the guy who asked the question). it wasn’t critical engagemetn – it was childish and rude. First of all, the Nation has its facts wrong, the administration did not turn of his mike (though, g-d damn, I wish they did) they simply rule the question out of order.

    Secondly, asside from his ego driven desire to make himself feel better I am not sure what he accomplished. THe forum was supposed to be about honest intilectual debate, and Justice Scalia answered our questoins – some of which, btw, were as pointed as Eric’s and yet respectful for an hour. Eric didnt’ contribute to the debate, rather he attempted to destory it by asking a questoin – that just about EVERYONE in the room found inapropriate.

    Regardless of what you think of Scalia, and his jurisprudence – and if liberals actually examine it carefull they’ll find much with which to agree, as the ACLU president pointed out at the dedication, he is a sitting Supreme Court justice, and that office, even if him not personally deserves respect.
       —David LIvshiz    Apr. 26 '05 - 11:30PM    #
  2. “intilectual”?
    Yeah, we all deserve respect here, good point.
       —Andy    Apr. 27 '05 - 05:14AM    #
  3. I think it’s a great question! Too bad it was asked in a rude or disrespectful way, but it certainly drives home the point: it’s nobody’s damn business if Scalia mines the missus’ chocolate channel!
       —peg dash fab    Apr. 27 '05 - 08:43AM    #
  4. actually, livshiz, it points out what personal liberty would be sacraficed if scalia’s decision were to stand…asking if scalia sodomized his wife was a display of how scalia’s own personal privacy would be at stake given his own judicialy ideology…

    and besides, an nyu law student like this guy could be that stupid…i’m mean, they don’t let idiots in…or do they?

    the other half,
    ari p.
       —Ari P.    Apr. 27 '05 - 10:07AM    #
  5. Livish,

    Of course the question is rude, disrespectful and inappropriate. Nobody should ever be asked a question like that in a public forum. The whole point is that if Scalia had his druthers, that’s exactly the type of question people might face in a court of law. IMO, if you’re a Justice and think a question is appropriate for a court of law, you shouldn’t take any offense at being asked that same question.
       —Scott    Apr. 27 '05 - 10:37AM    #
  6. Whatever discomfort Justice Scalia felt, it was nothing compared to the adults who have been jailed for engaging in consensual sex in the privacy of their own homes with other consenting adults, activities that Justice Scalia thinks are OK for the government to criminalize. And just for the record, sodomy laws cover just about any sexual activity including oral and anal sex. Here’s more details on MI laws – how many of you have potentially committed a felony in Michigan?

    http://www.sodomylaws.org/usa/michigan/michigan.htm
       —John Q.    Apr. 27 '05 - 11:49AM    #
  7. If you wanna see some real Bush administration “sodomy”, click here (not obscene or workplace-dangerous):

    http://www.electablog.com/oharm.html

    I wonder if Jeff Gannon introduced the 2 guys in the photo.
       —David Boyle    Apr. 27 '05 - 12:59PM    #
  8. Or, paste it in and click, rather.
       —D. Bo    Apr. 27 '05 - 01:00PM    #
  9. ok, so first of all – one of the first things you learn in law school is that the government, acting through majoritarian politics, gets to do many things ordinary citizens don’t. As such, if there is a democratically elected majority passes a law alloiwng the government to ask such questions in a court of law – they get to do it. it doesnt’ mean you get to ask such questions in a public forum. Moreover, Lawerence was a test case – until this incident the law was uneforced for years (in fact, I’d argue it hsould have been struck down for disutude, not equal protection). In short, no one was being asked such qeustions in a court of law.

    In term sof liberty interest – Scalia was asked – and flat out said that he didn’t see privacy as being inherent in liberty. He gave examples, and explained his views. I don’t agree with them – but they are certainly not offensive or ignorant.

    The man has a unique vision of the constitution – one that was the dominant vision unitl about the mid 1960s, and one which has many advantages – as well as some disadvantes. I don’t agree with his views on abortion, or gay rights – but he is certainly entitled to have his views – and to be shown respect that his position demands. As a supreme court justice – he isn’t obliged to discuss his constitutional views with anybody – and if he chooses to engage law students in a debate – he should n’t be punished for it.

    Ari – yes, we occasionally let idiots in – depends on the LSAT score.
       —David LIvshiz    Apr. 27 '05 - 01:14PM    #
  10. Livie: Two things. First, anyone who thinks that the US is or should be majoritarian hasn’t read his Bill of Rights.
    Second, the view that Scalia endorses wasn’t dominant “until the 60s.” It was a backlash view that was formed during the 60s against liberal gains in the courts. Constructivism is just as modern as the notion of the US as a Christian nation.
    (Didja read the NY Times “Constitution in Exile” piece a couple weeks ago?)
       —js    Apr. 27 '05 - 02:06PM    #
  11. Read the piece – but remember Scalia isn’t one of the “exile” crowd – rather he believes that the constitution should be a) interpreted according to the text, and b) changed slowly – that is whwat i was referring to – and that is precisely what we had in the US until sometime in the Mid 1960s – when the court moved from a textual approach to an instrumental one, which was often policy driven by people like Justice Brennan. Don’t get me wrong – i like most of what brennan and co did. But, i also realize the problems it created -the major one of which is the polarization of the judiciary – no one cared about judges while they were interpreting law, now tha tthey can make it (see Miranda, Bivens, Sabotino, Rommer v. Simmons) people care.

    second, the bill of rights (and i’ll even give you the rest of the amendments) protect enumerated rights. if you find me the word privacy in the constitution – i’ll be VERY impressed. its not there. and in fact, the justice who wrote Roe v. Wade – KNEW it wasn’t there – thats why the opinion talks in generalities as opposed to refrencing the text. And Scalia view – is that if it is not in the text – it should be left to majoritarian control. Tkae that you like – that isn’t homophobia or bigotry.
       —David LIvshiz    Apr. 27 '05 - 04:55PM    #
  12. Livie, darling, what does the Ninth Ammendment say? Privacy was already well-enshrined in British common law.
       —js    Apr. 27 '05 - 04:59PM    #
  13. “I am a textualist. I am an originalist. I am not a nut.” -Hon. Scalia

    reminds me of when nixon said, “I am not a crook,” or when clinton said, “I did not have an affair with that women,” he he…

    js, livshiz,
    privacy is a constitutional right because the at the heart of the listed rights in the bill of rights is lies (lays?) a right of individual privacy from government intrusion…it was also a part of the vision of the founding fathers, and the ninth makes clear that the bill or rights is not a exhaustive one…

    see, i didn’t forget everything from poli scie…

    down with entropy,
    ari p.
       —Ari P.    Apr. 27 '05 - 05:01PM    #
  14. JS, darling, are you for real? the ninth amendmetn has been used as a justification in one case (Griswold v. Connecticut) – it was not relied upon in Roe, or any of the other cases where Substatantive Due Proces is interpetd. You wanna defend privacy on those grounds – go ahead. But for most people, the ninth amendment is sort of like the third – largely without meaning. Moreover, there is a decent argument that the Ninth amendmetn meant rathe rparticular rights – namely those protected by the British constitution as it stood in 1789 – and let me tell you privacy wasn’t it.

    Ari – you clearly read Griswal, and remember it, but again – that is not the theory on which the court, or the lawyers advocating for the right of privacy defend it. a major reason is that the pernumbra argument is hard to defend when you start looking at it closely.

    Once again – i like the idea of privacy as being constitutionally guranteed – i just don’t find it in the constitution. which, is okay – because i don’t think those decisions are going anywehre fast. there is just not enough votes to overturn roe, or anything else. (hell, even Scalia wouldn’t over turn Roe).

    D
       —David LIvshiz    Apr. 27 '05 - 05:49PM    #
  15. ”(hell, even Scalia wouldn’t over turn Roe).”

    Exactly HOW much money would you be willing to bet on this? (I’m not a betting man, but…)
       —David Boyle    Apr. 27 '05 - 06:25PM    #
  16. say $500.

    i am not saying this is not what he wanted to do in Casey. But he termed Roe as being Settled law with stare decisis value at NYU – and i take him at his word. he’s been strangely forthwright about his sisues. THink about it – there are plenty of things he disagrees with – that he has not been willing to overturn. To quote scalia: “unlike THomas, i’m not a nut.”

    D
       —David LIvshiz    Apr. 27 '05 - 07:07PM    #
  17. Lawrence wasn’t a test case anymore than Bowers was a test case – it involved people getting arrested for activities in their own home that the gov’t. has no business getting involved with. Thanks for your uninformed viewpoint.

    “Thursday’s ruling stemmed from the 1998 arrest of two Houston men, John Geddes Lawrence and Tyron Garner, under a 28-year-old Texas law making same-sex intercourse a crime.”

    “Lawrence told reporters Thursday that he and Garner were happy with the outcome, but “never chose to be public figures or to take on this fight.””

    http://www.cnn.com/2003/LAW/06/26/scotus.sodomy/
       —John Q.    Apr. 27 '05 - 08:17PM    #
  18. There’s no right to vote anywhere in the Constitution either – just the right not to be denied the vote based on certain reasons (race, sex, age, poll tax). So since you won’t find it in the Constitution, I guess it’s not a constitutionally guaranteed right?
       —John Q.    Apr. 27 '05 - 08:27PM    #
  19. Livshiz writes “As such, if there is a democratically elected majority passes a law alloiwng the government to ask such questions in a court of law – they get to do it. it doesnt’ mean you get to ask such questions in a public forum.”

    No, actually we do get to ask such questions in a public forum. We get to ask anything we want in a public forum. Particularly when we’re asking public officials and especially when the question relates to the law.

    In addition to failing to teach you basic spelling and grammer, law school appears to have failed to tech you the first ammendment
       —John Mills    Apr. 27 '05 - 09:17PM    #
  20. hold on…i’m paraphrasing here, so forgive me:

    “The court will never overturn Roe v. Wade, because will mean rejecting a right of privacy. That would mean corporations would not go along with it, so the right won’t push for it.” -D. Liv, Belgan Bar, West Village, NYC

    so the court DOES take a right of privacy???

    befuddled,
    ari p.
       —Ari P.    Apr. 27 '05 - 09:23PM    #
  21. i feel like the constitution is a lot like the bible:

    “Oh, Marge, have you actually sat down and read this thing? Technically, we’re not even allowed to go to the bathroom.”
    -Rev. Lovejoy, ‘The Simpsons’

    always watching,
    ari p.
       —Ari P.    Apr. 27 '05 - 09:26PM    #
  22. ahm…actually both Bowers and Lawrence were BOTH test cases. The ACLU, which litigated the cases, tipped of the cops – with the agreement to enforce. It was exactly what a test case is.

    As for the second one – the langugage implies it – something that it does not do quite so easily with privacy.

    Davd
       —David LIvshiz    Apr. 27 '05 - 09:58PM    #
  23. Personally, I don’t see what the big deal is.

    If you’re straight, there are a lot of things more fun than boning some girl in the pooper. And if you need to poke her in the browneye in order to get satisfaction, you’re probably with the wrong girl.

    And no matter what, if you are laying pipe in some girl’s back woods, you might as well be nailing some dude.

    If you’re gay, there’s no reason why you should be pounding the chocolate starfish. Why would you?

    Give each other beejers. Feels better and won’t get you put in jail.
       —T.J.    Apr. 27 '05 - 10:12PM    #
  24. Ari – case law says it is. and republicans like it for thier own stuff. that is not at all inconsistent with the fact that there is a veiw that it is not included, held for example by Justice Scalia.

    Mills – well, see, funny, that is – the first ammendment allows you to ask, question, and debate – it does not allow you to disturb. Distrubing and stoping a scheduled event is somethign called a heckler’s veto and not protected by the constitution. In fact, even the President of the ACLU aggreed that Eric’s behavior was not protected.

    In short – while the content of the speach is wholly protected, the government gets to regulate “time, place, manner”.

    as for my spelling – yeah, well – there is no spell check on this thing.
       —David LIvshiz    Apr. 27 '05 - 10:12PM    #
  25. TJ – sodomy includes oral, look it up. though, i apprecieate the sense of humor.
       —David LIvshiz    Apr. 27 '05 - 10:13PM    #
  26. In that case, screw the law. Anal sex can be illegal, that’s fine. But leave beejers alone!

    SAVE THE BEEJER!!!

    Oh, and the dude who asked him that question was out of line. If his NYU Law classmates and a bunch of ACLU lawyers found him to be out of line, that should tell him something.
       —T.J.    Apr. 27 '05 - 10:25PM    #
  27. “there are a lot of things more fun than boning some girl in the pooper. And if you need to poke her in the browneye in order to get satisfaction, you’re probably with the wrong girl.

    And no matter what, if you are laying pipe in some girl’s back woods, you might as well be nailing some dude.”

    T.J. Wharry: the Shakespeare of Arbor Update. Whooooo
       —David Boyle    Apr. 27 '05 - 11:28PM    #
  28. t.j.,
    still laughing from post 23…i think you should stick to apolitical humor…perhaps i don’t want the au to nc-17, but hot damn!

    -an amused ari p.
       —Ari P.    Apr. 27 '05 - 11:29PM    #
  29. again, someone didn’t just write the words “chocolate starfish” on this website, did they???

    how bizarre,
    ari p.
       —Ari P.    Apr. 27 '05 - 11:30PM    #
  30. Ari,

    Yeah, they did. It was the ultra-conservative Christian.
       —T.J.    Apr. 28 '05 - 12:02AM    #
  31. “ahm…actually both Bowers and Lawrence were BOTH test cases. The ACLU, which litigated the cases, tipped of the cops – with the agreement to enforce. It was exactly what a test case is.


    That’s garbage and you know it.
       —John Q.    Apr. 28 '05 - 12:09AM    #
  32. John Q –
    Why don’t you ask Nadine Sorenstien, president of the ACLU. They were test cases, not isolated incidents. They were planned and organized from the start – with the intention of establishing sexual orientation as a suspect classafication category in the USSC. While that didn’t happen – they came close enough.

    Also, think of it this way. To barge into a room – the police need probably cause that a crime is occuring. How do you think the police got this PC? two men living together – even in a one bedroom – would not provide PC, therefore they must have known something. Trust me – it was a test case.
       —David LIvshiz    Apr. 28 '05 - 09:52AM    #
  33. Livshiz- The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.


    This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
       —js    Apr. 28 '05 - 10:27AM    #
  34. Glad you can quote Roe v. Wade. I’ve read it too you know.

    The first sentance of the second paragraph is precisely whats wrong with the decision. The court is countermajoritarian institution – and thats fine – thats what constitutions are for -but when you start implying rights into it – as they admit they are doing – if you are serious about democracy you better be really careful.

    Like i said – i like the result of Roe. I also think its one of the five wolrst reasoned decision in the hisotry of the Supreme Court; that is also why it is alwyas being challenged adn critisized, even by liberals.

    Keep this in mind too – in a few years you will have a court that is a bit more conservative – and if they start resorting to tricks like Blackmun does here – you are going to see a lot of things and results yo udon’t like. In fact, once upon a time they did that – they held that maximum hours laws were a violation of the “freedom to contract” which btw – is as much implicit in the ideo of ordered liberaty (that same palco standard – which btw is a discussion of freedom to contract, if i recall correctly). adn i don’t think you’d find it a legitiamte interpertation of teh constitution then. Just saying – sometimes consistency a good thing.
       —David LIvshiz    Apr. 28 '05 - 11:36AM    #
  35. Dave, I understand what you are saying, and you either a law student, or have really read up on this stuff, but…..

    Do you really think that the Supreme Court works from the Constitution, not from crap they pulled out of thin air?

    I’ve read more than a few decisions (flag burning comes to mind) where a Justice has pulled out personal anecdotes to make their case.

    Roe v. Wade is by no means unique.
       —Todd Leopold    Apr. 28 '05 - 12:07PM    #
  36. “as for my spelling – yeah, well – there is no spell check on this thing.
    —David LIvshiz”

    And you go to NYU? What do you need a spell check for? Don’t they teach you to write?
    Obviously you’re not taking your writing seriously enough to do it right, so I don’t see why we should take it seriously either.
       —Patrick    Apr. 28 '05 - 12:51PM    #
  37. David – Now I’m sure that you’re a real law student. When you can’t be bothered to do your research, you just make #$%$ up. Here’s the facts of the case. Your claim that Lawrence (or Bowers) deliberately set themselves up to be arrested to challenge the law is complete garbage.

    “A neighbor had reported a “weapons disturbance” at the home of John G. Lawrence, and when police arrived they only found two men having sex. Lawrence and another man, Tyron Garner, were held overnight in jail and later fined $200 each for violating the state’s Homosexual Conduct law. The neighbor was later convicted of filing a false police report.”
       —John Q    Apr. 28 '05 - 01:18PM    #
  38. I can’t find the supposed “ACLU tip-off re Lawrence” when searching the Internet (though that doesn’t PROVE it didn’t happen…). I’ve never heard that claim before, though.

    Maybe Rachel Corrie ran herself over with the bulldozer, too.
       —David Boyle    Apr. 28 '05 - 07:03PM    #
  39. David- You may have read it, but it doesn’t look like you understood it.
    You’re coming at it from the very antithesis of good governance. There don’t need to be rights “implied” into the Constitution. We hold those rights, and the government needs to justify its lack of defense or abrogation of rights such as privacy, speech or religion.
    And any time the government decides to protect a fundamental right that it had not previously engaged, that’s a cause for celebration. Privacy is a fundamental right, David, and that’s pretty well backed up in Roe v. Wade.
    Would I be happier if we ammended the constitution to make privacy an explicit right? Yes. Does it need to be, in order for privacy to be a right? No.
       —js    Apr. 29 '05 - 04:19PM    #
  40. Boyle and John Q – if you go and read the Supreme Court Review of Lawrence – there is about 10 pages worth of background explaining that Lawrence was presiely a test case. Its not accidental that it came in Texas (one of three states where Sodomy laws were not targeted specifically at homosexuals) – they picked it. Also, of the three states – Texas was the one most likely to prosecute if given the option (I no longer remember why the other two were less likely). In any case – it was a test case. As for my bias Boyle – i like the decision in Lawrence (other then the int’l law part of it), I agree with it – both on substance, and on the law. Hell – i’d have taken it further and declarared homsexuals as a suspect class – and ended all of this silly litigation

    Todd – I agree with you – constitutional law tends to be a bizzre combination of politics and slight of hand. That doesn’t mean i think this is what should be. Moreover, Roe is a particularly BAD example – since Blackmun could not point to the constitution and say – look here is this right. I am interpreting it broadly – and if you don’t like it too bad. He flat out said – i am not sure where to locate this right, but i know it exists.

    JS – We have a FUNDEMENTALY differnt veiw of the constitution. I don’t buy a natural law conception of government. Rights don’t exist in a vacum, they are created (or at least) should be created by a democratically accountable government. When a Supreme Court (or any judge) “discovers” a right – that is legislating and it is being done by a branch of government which is not allowed to do so. The tendancy to do so, by boht conservative and liberal judges, is exactly why there has been a number of intilectuals who are coming out against judicila supremacy – which woudl mean that Congress could overrule the court. These are people as diverse as Lary Kramer (dean of Standfor Law, Mark Tushnet (counsel to Gore in 2000, professor at NYU/Georgetown, and even Larry Tribe (counsel to gore, Harvard law). They all agree with you – that privatcy is a right – but they also all think that roe is one of the five worst decision in the hisotry of US jurisprudence – because in decalring this right – and not conclusively stating where it found it – it overturned a democratic judgement.

    JS – again, I like the right of a women to choose. I think its a great thing. But, the reason it is under stress is becuase jurispurdentially the decision is not sound. Do i want it overturned – no, i don’t. And for the record, i don’t think it will be. I am just saying – that just becuase i agree with something does not mean it is provided for in the constitution – even if we adopt Marhsal’s “its the constitution we are expounding” method and do everythign as broadly as possible.

    D
       —David LIvshiz    Apr. 29 '05 - 05:34PM    #
  41. Liv- I’m not arguing this on the basis of abortion, but rather on the basis of privacy.
    If you don’t buy the idea of inherent rights, then you’ve not only got a different view of the Constitution than I do: you have a FUNDAMENTALLY different view of the Constitution than the framers did. So don’t blame me for interpreting an Enlightenment-Locke-Rousseau document from the context in which it was written.
    Furthermore, no one said that rights exist in a vaccum— that’s why there are so few absolute rights. You can’t yell “fire” in a crowded theater and all that.
    The Supreme Court didn’t “discover” any rights, and didn’t legislate from the bench. It found an intrusion into already existing rights unjustifiable under the Constitution and that the violation of this right did not have the requisite amount of state interest behind it.
    I do think that by basing so much of their decision on the 14th, they left themselves open for more dissent, but hey, the District Court agreed with me re: the 9th Ammendment.
       —js    Apr. 29 '05 - 09:36PM    #
  42. JS –

    In regards to inherent rights. I disagree with you – the Constitution is not based on natural law. Though many have described it as such. However, recent research seems to point to a differnt direction. Namely, that the framers were acting on the British customary constitution – and that is where their rights were derived from. A really good description of all of this is provided by Lary Kramer, in his book The People Themselves

    http://www.amazon.com/exec/obidos/ASIN/0195169182/qid=1114893030/sr=2-4/ref=pd_bbs_b_2_4/104-4699263-9533520

    Anotherwords, teh founders didn’t see rights as being inherent, but rahter guaranteed by the constitution to which they all had sowrn an oath of loyalt. And when the British monarch violated the constitution they rebelled.

    As for privacy – i think the argument is largely the same. The SCOTUS first found the right in a case called Griswald v. Connecticut – where it did in fact use the 9th Amendment theory. That btw, is why the district court relied on that as well. However, since Roe – that theory has been abandoned – largely becuase a lot of the scholarship from around then took a heavy look at the 9th amendmetn and found that it was deisgend to incorporate rights guaranteed by the British constitution in 1776, not be an open door to expandign the bill of rights as seen fit. That is why Blackmun makes the shift to the 14/5th amendment and due process.

    And this is probably where me and you part ways. When it found this right to privacy – it made it up. In the sense that the right was not in the constitution, nor was it in teh British one back then – they had no source of it (other then the Natural law one – which they did not want). This is exactly the kind of thing that I think works best as an amendment – not as a judicial opinino. THe fact that such an amendment may not pass – well, thats just a sad comment on our society.
       —David LIvshiz    Apr. 30 '05 - 04:44PM    #
  43. I’m just chiming in to point out that there wasn’t a British Constitution in the 18th Century and there still isn’t. HTH.

    Okay, one more thing. The NYU kid was way out of line. Justice Scalia doesn’t deserve an invasion of his privacy any more than anyone else. Besides, do you really think anyone’s reaction to the question was “what a cunning send-up of Scalia’s jurisprudence”?
       —Ed    May. 1 '05 - 03:16AM    #
  44. Ed – sure they do, its a custom based constitution. you’re right in the sense that they do not have a document called a constitution – but they do have something that has the function of a constitution – its a collection of documents (Magna Charta being the first) and custom that guaranties certain things.

    Moreover, it has been those rights that have formed the foundations of at least three major constituions: ours, Israel’s and India’s.
       —David LIvshiz    May. 1 '05 - 10:00AM    #
  45. Eric Berndt’s question was a valid one. If Scalia can ask it of gay people, if Scalia thinks he can give the right to the state to ask it of gay people, then why is it improper to ask the same question to Scalia?

    If the question can only be asked of gay people, then it is selective and discriminatory, an act of deliberate hate and disrespect for the privacy of certain people. Of course, given Scalia’s vulgar, open and blatant hate and dismissal of human rights for anyone he does not personally like, his hypocrisy comes as no surprise.

    If Scalia doesn’t like being asked the question of his own life, he should not be asking it of others.
       —P. Smith    Jun. 11 '05 - 12:43AM    #