Associate Justice Antonin Scalia publicly lashed out at Fordham Law Professor Professor Joel Reidenberg who having his students compile a 15-page dossier on his private life. For civil libertarians, Scalia’s objections to a lack of privacy is analogous to Rep. Jane Harman’s outrage over being intercepted as part of the NSA warrantless program that she helped approve.
The controversy was triggered last January when Scalia spoke to the Institute of American and Talmudic Law’s midwinter conference on privacy issues. Scalia mocked privacy arguments, saying: “Every single datum about my life is private? That’s silly.”
It was so silly that Reidenberg decided to assign his students in his Information Privacy Law class to determine about much data they could find on Scalia in the public domain.
Reidenberg noted: “Justice Scalia said he doesn’t care what people find out about him on the Internet. So I challenged my class to compile a dossier on him.” It took only four months for the creation of a 15 page report filled with his home address, personal telephone number, favorite movies, favorite foods,his wife’s personal e-mail address, and “photos of his lovely grandchildren.”
Scalia went ballistic, stressing the difference between the question of legal protection and personal responsibility. He made the following statement:
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.
Of course, Professor Reidenberg is not the only one accused of “perfectly legal, abominably poor judgment,” here.
For the latest on the story, click here.
Patty,
As you probably guessed, I was being sarcastic in showing my undying love for Lord Scalia.
Speaking of the amendment I spent my third year of law school researching and writing about, it does not confer any rights, but acts merely as Hamiltons reminder of the rule of construction–expounded in Fed 84.
Goldberg in Griswold almost had it right, but he kept using the same language as the Douglas plurality; i.e. implying that the right was conferred by the amendment — just as Douglas said the right was conferred by the penumbras of (insert what you want here).
The only rights set forth by the 9th Amendment are the rights that can be easily extracted by analytic judgments; i.e the concept of the predicate being contained within the concept of the subject.
Rights that cannot be alienated must be ‘retained.’
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.”
And what pray tell is the most fundamental stick in the bundle of self-ownership rights?
That’s right; privacy.
SIYOM,
Bob
P.S.
Rights confer power; not vice versa. Accordingly, I do not derive my right of privacy from a sovereign of nine; e.g. in Griswold.
Patty C.,
I fear that you have been too trained in logical thought to be able to understand Justice Scalia. He’s not interested in any facts or precedent, he’s just interested in his own pre-Judgment of the law, based on his own prejudice and contempt for anyone not steeped in privilege and wealth.
Bob Esq.,
I agree if you cannot or won’t and have the opportunity to protect then how can you claim that your right to privacy has been infringed?
Strictly(constructionist)Speaking of course.
Come on, these arguments won’t just present themselves… 😉
http://www.usconstitution.net/constnot.html#privacy
The Right To Privacy
The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th’s search and seizure limits, and the 5th’s self-incrimination limit.
Here’s the thing.
I went back and reviewed the text of the constitution. From the perspective of our lord textualist Scalia, there’s absolutely no text protecting a right of … how do you say… ‘privacy’ in the constitution.
Pity.
Secretly, deep down, he wants and needs for a bigga badda coppa to strip search him …
To DW…!
This is mostly for ‘Sundance’, but surely most remember ‘Burt’s
‘South American Getaway’…
DW
Lottakatz,
Thank you. BW’s post including these Frankfurter remarks bears continual repeating:
“This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.”
Game. Set. Match. Try these bastards!
“Privacy for Me, but not for Thee” – Antonin Scalia.
Lottakatz,
DW was a truly great man. He is sorely missed.
I apologize for the long cut&paste but I followed your link and came upon a poster’s (deeply worried) comment that included Justice Frankfurter’s opinion in Watts v Indiana. While it was written 60 years ago it is the perfect argument against enhanced interrogation of even the least form. Leaving aside the 4th and 5th Amendments it exalts sound investigation v expedient coercive investigation and should be the mandate for our military and Intelligence agencies.
“deeply worried
1, February 20, 2008 at 9:45 pm
And one last time (I promise you)
Watts v Indiana, 338 U.S. 49 (1949)
Mr Justice Frankfurter announced the judgment of the Court and an opinion in which Mr. Justice Murphy and Mr Justice Rutledge [two sainted souls] join: [excerpts follow]
“There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men. See Taft, C.J., in the Child Labor Tax Case, 259 U. S. 20, 37.”
“A confession by which life becomes forfeit must be the expression of free choice. A statement, to be voluntary, of course need not be volunteered. But if it is the product of sustained pressure by the police, it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation, and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure, which is his constitutional right. To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.”
Now comes the heart of Frankfurter’s analysis:
“This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev., 433, 457-58, 467-473 (1935). Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation. “The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands.”
“Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards.”
Now this is the common-law, due process accusatorial system that the distinguished jurists of the previous generation left us.
And which if Scalia had his way, would be dismantled under the name of State security, and a new edifice of inquisitorial law erected.”
mespo727272 1, April 30, 2009 at 9:16 am
BTW thank you JT for that link to your older Scalia post, “Scalia and the Advent of Celebrity Justice.” I was able to reacquaint myself with some of the wisdom we so abundantly enjoyed when our friend, “deeply worried,” roamed this blog. His wit and analysis were gems in a dunghill (my dung included), and, like Patty C, I do miss him very much.
—
mespo, DW admired you very much. You were like Redford to his Newman.
I know this is about Scalia, however, I just viewed this video and if this is being done, privacy is no longer an issue.
BTW thank you JT for that link to your older Scalia post, “Scalia and the Advent of Celebrity Justice.” I was able to reacquaint myself with some of the wisdom we so abundantly enjoyed when our friend, “deeply worried,” roamed this blog. His wit and analysis were gems in a dunghill (my dung included), and, like Patty C, I do miss him very much.
Though I would not have suggested this assignment to any class of mine, I must say: Mr. Justice Scalia, meet the roosting chickens.
Here’s the thing I’ve been thinking about Scalia. His decision in Bush v. Gore was horrendous and hypocritical given his power of States v. Federal govt. legal positions. He is obviously less a jurist than he is a polemicist with judicial powers. His appointment to SCOTUS was a horror. The fact that his son worked for Attorney Olsen’s firm during Bush v. Gore should have caused him to recuse himself from the case. his presence debases SCOTUS not because of his political leanings, but because of his hypocritical willingness to shift his positions based on political considerations.
All that said the man is not a crook, or corrupt in a general sense. He is mentally unable to grasp another point of view and to empathize with people outside of his circle of approval. He may well be a highly intelligent man, but he fits my definition of a very ignorant one. If a human is incapable of putting themselves in someone else’s shoes, so to speak, they suffer from ignorance/intolerance. If a human can not look at belief systems, other than their own and not be capable of understanding the reasoning behind it (agreement is irrelevant)then they are ignorant and beyond that dangerous. This is so because then all belief system’s differing from one’s own become threatening and therefore need to be stamped out.
In this instance Scalia is incapable of seeing the irony of being hoisted on his own petard. He will use torturous rationalizations to differentiate between his remarks and the resultant actions and never realize his own hypocrisy.
He is a Robert Bork type, who made it through to SCOTUS and discredits all who voted him on board.
Oh, sweet justice! Please don’t publish the photos of Scalia and Dick engaging in nude duck hunting.
Oh, sweet justice!
Free Speech and the triviality of a Private citizen to be safe from an unwanted governmental intrusion.
I guess that if Fordham is seen as a Governmental Actor either because it receives Feral (not a misspelling) Money then they might be subject to a 1983 action. But I do believe that from what I have read that Scalia gave a reasonable person a challenge or a dare if you may.
I would have done it. But if I published it would I have fear of the Marshals come a knocking at my door?
I guess the Right to Privacy does not apply to anyone but the Governmental employees, like Scalia.