Trump World Grab-Bag--A Collection

Thursday, December 13, 2012

Antonin Scalia and the Art of the Arbitrary

In view of the comments that Scalia has made regarding homosexuality, which appear to have equated the state of identifying as queer with a capital offense such as murder, I'm persuaded by his argument that Scalia's chief problem in viewing the issue may not be bias, but an absolute disconnect between the law as she is wrote and the ideal of what she is wrote for.  That is to say, to let the matter of what law can and should accomplish with respects to human affairs rest on morality and divorce it from the harm principle strikes me as capricious in the extreme--

Which surprises me little, since Scalia's approach to strict constructionism seems to be that of Humpty Dumpty--if the Founders have said a word, it means what Scalia would very much like it to mean, neither more nor less.

His usage of "reductio ad absurdam" strikes me as inapt in his own defense because it is not a reduction to the absurd to consider the state of homosexuality parallel with homocide--unless that really is your argument. Because that would be the extreme point of view: and the bitch of it is--that is the argument of bigots and hate-mongers and the religious wrong in many corners of the world to this very day, who aren't debating anything as rational as marriage rights--but are actually debating whether gay persons should be put to death by the state, or simply imprisoned for life.

If one is ever inclined to mock the absurd--this is not a cause for laughter, but a serious matter that shouldn't be addressed by a clownish smartypants who believes his biases sound better if inserted into the mouths of long-dead and sanctified American heroes. He is speaking through a tin god, as it were. But nowhere does this seem more logically repugnant to me than when he butchers the notion of what they were even trying to do with the Constitution, by declaring the document that establishes our legal framework "dead, dead, dead."

Is he unfamiliar with Enlightenment ideas about perfectability? Did he not notice the striving for a "more perfect union"? Was he somehow incapable of seeing how the ability to amend was "baked into the Constitutional cake" as it were? Is he somehow not aware that the Bill of Rights argument is done, and the preservation of certain rights for individuals against the intrusion of their government is kind of a done deal? Because if these things are the case, while I'm not a legal scholar, myself, I'm a little suspicious about what he thinks that document, that he's supposed to uphold, is for.

The thought experiment, wondered aloud,  “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” leaves out the near-cousin of the redctio ad absurdam, the "slippery slope". True, we can have moral feelings about lots of stuff. We don't legislate all the things people decide to moralize about, or else society (and the courts) are tied up in the messy business of chasing after the busybodies who won't stop at who marries whom, but move right along to matters of, say, education for women, or who may be allowed to drive, or even show their face out-of-doors. The next thing you know, they've outlawed kites and all the menfolk have beards, even if some look like right prats in them. Whereas, if we can identify who is harmed by any action, I think we have a better grasp where criminality can be assessed

It is true that your bigoted anti-gay busybody has such a terrible store of offense lurking in the bile-pockets of their bosoms that they may very well be "hurt, so hurt!" when they see whatever it is that offends them.  A part of jurisprudence is knowing who properly is offended, and has grounds to pursue a suit. But clowning and playing up to the conservative anti-gay bias doesn't require grounds at all, does it? Homosexuality is wrong, sayeth the bigots, because it is. Because morals ideology says it is. And no respect of privacy, right to assemble, or equal treatment under the law (relics of a dead document, certainly) could talk him from this point? If fairness, or outcomes, have nothing to do with law--but an arbitrary morality does--where is the reasoning?

I don't really know. I just know that I find his outlook fairly troubling.  Not because I don't see the argument he's trying to make. Because it's just not right.

No comments: