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April 14, 2005

Scalia Grilled on Private Sex Practices

Gossip, but relevant:

WHEN U.S. Supreme Court Justice Antonin Scalia (above) spoke Tuesday night at NYU's Vanderbilt Hall.... "One gay student asked whether government had any business enacting and enforcing laws against consensual sodomy. Following Scalia's answer, the student asked a follow-up: 'Do you sodomize your wife?' The audience was shocked, especially since Mrs. Scalia [Maureen] was in attendance. The justice replied that the question was unworthy of an answer."

I'll take that as a "yes."

Good on ya, Maureen.

I agree almost down the line with Scalia's approach to adjudication and constitutional theory, but I do have one double-secret probation caveat to this sort of thing.

It's this:

If a law is not being enforced, if everyone knows it's not being enforced, if the law in question purports to outlaw stuff that an awful lot of people do, and the only thing keeping the law on the books is a somewhat dysfunctional legislative process (look, no one is especially eager to co-sponsor the "Sodomy is Fun Bill"), I have to say I don't mind the courts stepping in and simply acknowledging reality and voiding the law.

This isn't precisely analagous, but there was a debate between the "formalists" and "realists" a long time ago. The formalists said things like, "Well, if the boilerplate of a contract (i.e., the stuff that no one reads and no one negotiates) is in fact part of the contract, then it should be treated as binding."

The realists argued (and ultimately successfully, by and large), that we should look to actual business practices, not legal formalism, to resolve these questions. And if the reality was that businesses were simply not reading the boilerplate nor negotiating the boilerplate, then a true "meeting of minds" had not taken place as regards those provisions, and the boilerplate should be dismissed as what it was in reality -- i.e., more or less total bullshit.

This was not, by the way, a left-right argument (although, yes, the right does prefer bright-line rules, as does Scalia, as do I). It was just a question of whether or not law should seek to emulate real world practices, or real world practices should be forced to comport with legalistic formalism.

Now, that is not actually a Constitutional point, so that's why I say it's not really perfectly analogous with the recent ruling striking down soldomy rules. But the basic spirit of it -- Are we going to just keep goofy laws on the book and pretend they're real laws when we know full well they're not? -- I do think can be used on occasion to void a goofy law (although, of course, Justices can't strike down a law on the basis of "invidious goofiness;" they have to come up with some alternate, acceptable theory for doing so).

Let's be honest: sodomy also includes, err, stuff involving the mouth, to put it delicately. Are we really, at this point in 2005, saying that we need some laws on the books, "as a nod to conventional morality," banning the practice of a bit of oral stimulation?

I don't doubt there are a lot of people who refuse to engage in oral sodomy based on strongly-held principles. We call these people "wives."

But most of the rest of us have, yeah, engaged in this horrible immoral practice from time to time, and it's just f'n' silly for us to go on pretending that we really believe it is, or ought to be, deemed a criminal act.

I'm not talking about a phoney-fakey "national consensus" like the one Kennedy concocted recently to claim that the Constitution forbade the execution of vile murderers who just happened to have killed just shy of their 18th birthday.

But I gotta say, on this one, I think there really is a national consensus, whether we're all comfortable admitting it or not.

That said-- Antonin Scalia slices like a hammer. Generally.

Correction/Clarification/Update: Michael cautions that what I said about "boilerplate" not holding is sort of, well, wrong.

I simplified in my haste. I was talking about a problem that occurs when businessmen keep sending back modified contracts to each other, each containing their OWN boilerplate (which of couse always favors themselves).

There was a question over which of these various contracts should be held as the real one; a doctrine evolved that the LAST contract should be considered the binding one. This is how these "battles of the forms" were handled.

The formalist/realist debate on this question wasn't so much over whether or not boilerplate should be recognized as binding, but WHOSE boilerplate. Should the last contract signed be considered authoritative, even if no one really negotiated those terms? Why not the first contract? Why put any emphasis at all on a particular version of the contract when, in reality, the boilterplate was never really negotiated?

The UCC (Uniform Commercial Code) attempted to deal with this issue, hewing more closely to the realist position than the formalist, and provided default terms for cases where key terms had not, in fact, been truly agreed upon.

Anyway. Loose shit. If you're reading this blog for contractual advice, you really are the slobbering retards I always imagined you were.

I don't do this for a living. This is, like, new to me.

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posted by Ace at 06:08 PM

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