So, the subject of Justice (sic) Scalia's very recent bout of imbecility regarding gay rights came up on Andrew Sullivan's 'The Dish.' Here's Sullivan's substantive take on the issue:
So lets challenge Scalia on "legislating morals". The public has every right to legislate morals but not to do so arbitrarily to punish and stigmatize a minority for doing the exact same things that the majority does all the time, i.e., sodomy. If the court has already determined that mass murderers have an inviolable right to marry, how is allowing gay people to marry somehow a sign of moral decline? If the court has already made non-procreative sex constitutionally protected for straight people, how is it that the very same thing, condemned for the very same reasons by Scalia's and my own hierarchy, is obviously immoral when it comes to homosexuals?
It's that discrepancy that suggests that this argument is not about legislating morals, as Scalia insists. It is about legislating them unequally, and treating a tiny minority differently for no rational reason. This issue has been settled, as Scalia himself declared in his dissent in Lawrence vs Texas. He rightly said there that that decision essentially made gay marriage a constitutional inevitability. He was right. And he should uphold that precedent in these cases, if it comes to that. Or is he going to contradict himself?Got all that? Just in case you didn't:
He starts with, "So lets challenge Scalia on "legislating morals"." Great! After all, the whole notion of government "legislating morals" is so fucking offensive to genuine-liberal sensibilities that Scalia should be toast. But wait! Instead, Sullivan says:
The public has every right to legislate morals but not to do so arbitrarily to punish and stigmatize a minority for doing the exact same things that the majority does all the time, i.e., sodomy.Is this what Jefferson had in mind when authoring the Declaration of Independence? Is this what Thomas Paine had in mind when writing The Rights of Man? Where does a supposed right of the public to do this-and-that come from? Does "the public" have rights, or is it only individuals that have them? If the public has rights, can they not be only the rights delegated to it by individuals? That's the whole idea of civil government in Lockean-liberal terms: the individuals give up to the government rights of enforcement of the Law of Nature, in exchange for a much more effective, just, and stable system of securing and protecting their rights. This is a goddamned no-brainer if you just read the opening part of the Declaration.
What is the just exchange of rights and responsibilities, benefits and burdens, involved when "the public" decides to punish a victimless crime? The peaceful people doing their private consensual things give up their freedom to do so in exchange for . . . what? Jack shit, that's what.
Let's call "legislating morals" that do not serve the end of protecting individual rights what it is: violations of individual rights by a majority that has no fucking business whatsoever interfering with victimless activity. This whole notion of "legislating morals" is a "conservative" (read: right-wing) fantasy that may have held sway back in the day, but it's neanderthalism at this point in history.
And to be clear even further: "Legislating morals" and "protecting rights" cannot - in a rational system of government based on individual rights - be mashed together such that when government punishes a murderer, it is "legislating morals." Only imbeciles - Justice (sic!) Scalia, for example - would run them together like that. (See, once again, Spooner.) (Here's Spooner again.) (Lysander Spooner, "Vices are not Crimes.")
Spooner already refuted this bullshit well over a century ago. Why "the morals-legislating public" isn't intimately familiar with this essay is a very good question. I'll provide some hints to an answer in just a moment.
(In case you missed it: Spooner.)
(And there's no good argument that homosexual sodomy per se is even a vice! Double imbecility from Scalia! You know what is a vice, a deficiency, in an objective, Aristotelian/perfectivist code of ethics? Willful imbecility on the part of those who should goddamn well know better. Plato wrote The Republic, after all, with the idea in mind that imbeciles shouldn't be in positions of political power. Remember the Athenians' "right to legislate morality" by sentencing Socrates to death? Q.E.D., motherfuckers.)
To continue: What Sullivan turns this into is a case for "legislating morals" but not to do so "arbitrarily" and "unequally." So it comes down to a Fourteenth Amendment issue, which is the primary basis (under present, corrupted jurisprudence) on which to strike down sodomy laws as unconstitutional. How exactly does one distinguish between equal protection and equal rights-violation given this framing of things, praytell? (Anyone else think of this question before I did? Of course, it came to me at mind at the very first but I just forgot to ask or mention it in first drafit; hadn't yet perfected this subject in my mind till now. [UP asks: how exactly do you figure out what "now" this is referring to? Did you think of the question for yourself before, or after, seeing UP ask it above? If it's "before," you're in a small minority of intellectually-well-informed people who happened upon this blog "early," making you well ahead of the rest of internet users and the "general public" in a very significant sense. What results this fact will have, sociologically speaking, I guess I have to predict via my understanding of praxeology, memetics, moral theory, and so forth, to come to some overhelmingly amazing conclusion I haven't reached yet? Whoa. :-D So, what is "now" in UP's context? In yours? In the minds of those you love? An exercise not just for present readers but for all of us, it appears....] serious and pensive Sagan face.)
Sullivan is correct that Scalia was not such an imbecile as to fail to recognize that striking down laws against sodomy would pave the way for marriage equality. (He was an imbecile for being concerned about striking down sodomy laws on that basis, hence his morally obscene dissent in Lawrence.) But all this misses the point, given Spooner.
As I pointed out in my previous blog entry, all of this intellectual and jurisprudential corruption can be circumvented by appeal to the Ninth Amendment, that is, to natural law, or to what Paine termed common sense. If we want to be "originalists" (as Scalia supposedly is) in our interpretation of the Constitution, which involves reference to the intent of the Framers, then what other intent is there behind the Ninth Amendment than just what Jefferson and Paine referred to as The Rights of Man? We can prattle on all we like about the intent of the more statist Framers - like those, for instance, who never intended for African-American slaves to have rights - but that doesn't do a fucking thing to negate the meaning and intent of the Ninth Amendment (which could also have been invoked to strike down slavery as unconstitutional, under a rational jurisprudence).
Well, I've gone on at some length already here, and the gist of the matter is plenty clear. Having once been an avid reader of Sullivan's 'Dish', I'm disgusted by him these days. I don't know if his brand of so-called conservatism inspired by Hayek and Oakeshott is undermined by the 'British' way of approaching governance post-Locke (see: J.S. Mill and utilitarianism) with which he was bombarded as a youth in the UK, but it isn't what American originalists like Jefferson and Paine - and, later, Spooner, and later still, Rand, Rothbard and Nozick - had in mind. (There is also the matter of Sullivan's "dialectical" sensibility in trying to carve out some territory of reconciliation between different factions in today's politics, to reach some ostensibly reasonable and practical common ground of overlapping consensus; the primary problem here is the underlying corruption of the whole discourse as such today, which Sullivan does not address at its core [a matter for the discipline of philosophy to address]. A better term for Sullivan's "dialectical" sensibility here is pragmatism, with all the baggage that carries.) But more disgusting still is what is revealed by this paragraph of Sullivan's article:
But the exchange also brought back something in my own past. Well over a decade ago (I can't remember when), one of the professors I taught students for at Harvard, Michael Sandel, invited me to debate my former dissertation adviser, Harvey C Mansfield, on marriage equality. It was for Sandel's legendarily popular course, "Justice". The fact that Harvey and I both agreed to do it and debated with civility and mutual respect (I revere Harvey as a scholar and as a human being) was, for me, somewhat moving, if also a little personally awkward.Cutting to the chase: what the fuck is going on at Harvard that someone who teaches for Prof. Sandel doesn't understand the principles of rights underlying the Declaration of Independence? Moreover, how the fuck does it happen that a former teacher of students at Harvard can so ignorantly blast Ayn Rand in the most extreme of terms? (For that matter, what the fuck is going on in academia generally that a leading academic "philosophy" blogger does the same thing?) Is it any surprise that Harvard is turning out so many statists along with so many morally and aesthetically vacuous Wall Street financiers and intellectually vacuous politicians (see: 2012 presidential election)? Just what the fuck does a credential from Harvard signify, anyway? Raw smarts can go only so far, after all, and Gates and Zuckerberg didn't need the credential to prove their economic worth.
This former teacher of students for Michael Sandel at Harvard concludes by quoting without comment the following from another author, one Paul Campos:
Scalia’s tactless fulminations are, at bottom, a reminder of why life tenure for Supremes is a bad idea, the badness of which increases in direct proportion to our average life expectancy. Put another way, someone who was in law school at a time when 96 percent of the public disapproved of interracial marriage should be considered too old to sit on the Supreme Court.How is this asinine and irrelevant opinion worthy of so much as a quotation in the given context?
Something something Jefferson, Franklin and Paine appalled and aghast, etc. Q.E.F.D.