Timothy Sandefur has a series of posts (1, 2, 3, 4) defending the ill-mannered NYU Student who questioned Justice Scalia during a public talk about his private sex life, or more precisely, arguing that the propriety of interrogating him on the point stands or falls with the constitutionality of sodomy laws. His argument basically runs that if it is constitutional to ban this conduct, it must be because the conduct is insufficiently private, or sufficiently related to the public interest, that we have a right to know whether our public officials do it.

This is clever, but confused. There's no particular reason that the notion of "privacy" for purposes of academic and social etiquette should perfectly track the notion of "privacy" for purposes of constitutional law. Etiquette is a bottom-up institution determined by the evolving standards of society. Law (at least written constitutional law and statutory law, if not common law) is laid down in written rules set forth in large books. It would be passing strange if the legal standards devised by the 39th Congress and ratified by mid 19th-century citizens rose or fell with the evolving standards of etiquette.

UPDATE: Sandefur has more, pointing out (1) that much 4th Amendment jurisprudence is based on evolving social norms of privacy, and (2) that in any case our sense that it's rude to interrogate folks about their sex lives indicates that their sex lives our none of our business. I agree, as far as these go, but it's not that far.

1: I am not convinced that any language in the 14th Amendment was meant to create a none-of-our-business rule of Constitutional Law, let alone one that correlates to an evolving etiquette standard.

2: In any case, Sandefur's point about the 4th Amendment almost cuts the other way. The fact that we think there is something unseemly about digging around in people's bedrooms might indicate exactly that we shouldn't let the state dig around in people's bedrooms without a pretty good reason. Indeed, under 4th Amendment law, we don't. But this intuition doesn't tell us very much about what substantive behaviors we should or shouldn't be allowed to punish once we got there.

Amber Taylor pooh-poohs the West Wing while Matthew Yglesias chides it for being too fantastic. Both of these objections seem to miss the point, namely that it is a fictional television show appealling precisely because it is just a touch surreal. A world in which a Nobel-prize winning New Englander sweeps both North and South Dakota in an election after concealing a medical disorder from the general public is a fascinating world, even if it is not very plausibly ours.

I just finished plowing through the Season 4 DVDs (which came out 10 days ago-- that's 6 Netflix Discs in 10 days, a good clip) and listened to the commentary attending the end of Season 4. The sound consensus is that the West Wing's slippage really took hold at the start of Season 5 with the melodramatic situation of Zoe Bartlett. It was a great relief to learn that Aaron Sorkin (who wrote the Season 4 cliffhanger finale, but left the show before the Season 5 cleanup) had in mind a much more mundane explanation, with Idaho replacing Kumar.

Three weeks until Season 3 of the Gilmore Girls comes out on DVD. But now I must drown myself in the Bluebook.