Two Entries for the Price of One
Jun. 27th, 2015 03:44 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
earlgreytea68I am no con law scholar, but in reading the Scalia dissents in the Affordable Care Act case and in the gay marriage case, it occurred to me that this is what seemed to be happening:
Affordable Care Act Case
Scalia: The text as written in the statute is what it is. We can never know what the drafters actually intended.
Drafters of the statute: ...Yes, we can. In fact, we can tell you--
Scalia: NO. WE CAN NEVER KNOW. WE MUST JUST GO BY WHAT IS WRITTEN THERE. IT IS IMPOSSIBLE TO KNOW ANYONE'S INTENT, EVER.
Gay Marriage Case
Scalia: I know the intents of all men from the eighteenth and early nineteenth centuries who ever had anything to do with jurisprudence and they would hate my fellow justices and also gay marriage and also just marriage in general and if you want to know anything about what these guys were thinking, just ask me.
So it occurred to me that basically Scalia's theory of jurisprudence seems to boil down to this: It is impossible to know intent and we must only look strictly to the words as written UNLESS it has to do with someone who Scalia feels he "gets" on some kind of elemental level and then he knows all about intent, no worries, k? Which basically seems to me that Scalia's just running around writing Founding Fathers fanfiction at this point and pouting a lot when he gets Jossed by, say, the five other Supreme Court justices, or the majority of the American public, or Congress, or whatever. "Dudes, did you guys not read my coffeeshop AU? Because pretty sure John Marshall the barista's not down with that," is pretty much Scalia's attitude.
I've never been a huge fan of originalism, and for the first time I've connected it in my head to fanfiction: I'm not a huge fan of originalism because I am used to the understanding that a "canon" text can be interpreted any number of ways, and Scalia's kind of like the bullying BNF who I'd basically ignore in fandom because he's clearly crazy. (And originalism always seems just as maddeningly nonsensical as any piece of fandom wank you can come across. Like, copyright's my field, and when copyright was originally set up in this country, it lasted for 28 years. Now it lasts for life of the author plus seventy years. But I didn't notice Scalia running around ranting about protecting the intent of the original copyright drafters when the copyright extension was recently challenged.)
(And do not even ask me to explain Scalia's outrage over the Supreme Court declaring something unconstitutional, considering that is actually the Supreme Court's job, as established by Scalia's problematic fave John Marshall in Marbury v. Madsion in 1803.)
Anyway, I don't do a lot of legal posting here but I felt like my Scalia as BNF theory is an important addition to constitutional scholarship and must be shared. We should probably all anticipate a new Scalia!canon!fic wherein Jefferson and Adams hang out post-coitally and exult about the fact that they can't legally get married because of how much marriage would destroy intimacy and their super-kinky sex life.
And, continuing on my legal posting kick, I've been doing a lot of research for various legal articles that I have in the pipeline and I have come to this conclusion re: copyright law: that is it entirely premised on The Legend of the Suffering Tortured Artist. Like, I keep reading these law and econ-based articles that keep droning on and on about how horrible the act of creation is and how nobody would ever engage in it, ever, unless there was some sort of massive financial reward at the end of it. And I want to point out that almost nobody ever gets this massive reward they think they're setting people up for. I mean, props to the people that do, but there are a ton of people who create and will never see a dime of reward for it. And all the law and econ articles are like: Well, that's stupid then, people, that's economically inefficient, go do something else with your time.
And I go from these articles to reading fan writers talking about their fanfiction and do you know what they talk about? How much FUN they're having. They talk about playing around in sandboxes; they set up challenges for people to goof around in; they write crackfics, knowing they're crackfics, with no purpose. The law and econ articles would say: What is the socially valuable purpose of your creativity? And fans would say: ...It's fun? And that would be no good to the law and econ people. There must be PURPOSE. There must be, frankly, SUFFERING for creativity to be considered to have value.
I'm writing this down explicitly because it occurred to me, just now, today, exactly how much I personally had internalized that. I mean, I always do a lot of work defending the value of fanfiction, but for a lot of years when I was younger, I thought I could never be an actual writer because I wasn't tortured enough. I actually used to think that because I enjoyed writing, it disqualified me from ever being An Artist. I had a lot of regret about that.
And now I'm like, ...WHATEVER. I mean, it's a silly thing by which to judge art, by how miserable it makes the people it came from. A lot of great art has come from a lot of really unhappy people, yes, but I don't think that's a prerequisite. It is, however, definitely the assumption we have used for our entire copyright system. It creeps into every judgment we make about what we call "legal" or "illegal" in the intellectual property world: Have you suffered enough for this? If you haven't, we shan't give you any rights to it. And I just wanted to note that explicitly because, frankly, I think that assumption is harmful. It's linked, I think, to the attitude I used to encounter in the law firm that we all had to be callously mistreated for a few years in order to earn the reward of partner. I feel like it's also linked to, like, fraternity hazing. What's with so much of us as a society, that we only allow value to people that we have judged to have suffered sufficiently first, to the point where we actually cause that suffering, actually build it into our legal system, actually provide rewards for it?
(I do not in any way want to devalue suffering, and my thoughts, respect, and support go out to all those suffering. I merely want to highlight that there are times when we sanction our deliberate causing of suffering in others and I find that alarming.)
If you love your chosen form of creativity, if it brings you joy and fulfillment: GOOD. Embrace those things. Life is full of enough that will deprive you of that. Never devalue yourself for doing something "for fun." That's okay. Fun things can have value, too. Have a hobby that you love and don't feel bad if it doesn't make you any money. And if you put words on paper, you're a writer. Law and econ would tell you that the world has too many creative works, but personally, I don't get that. I think the world needs as many voices as it can get. I think all of the evidence tells me that, to this point, the world has never had enough voices. I need to hear more, from everyone, from all voices. Go forth and speak and never let anyone tell you that what you have to say has no value.
Plus, I can never have too many coffee shop AUs. So whatever, law and econ peeps. Fandom peeps: Go forth and create.
Affordable Care Act Case
Scalia: The text as written in the statute is what it is. We can never know what the drafters actually intended.
Drafters of the statute: ...Yes, we can. In fact, we can tell you--
Scalia: NO. WE CAN NEVER KNOW. WE MUST JUST GO BY WHAT IS WRITTEN THERE. IT IS IMPOSSIBLE TO KNOW ANYONE'S INTENT, EVER.
Gay Marriage Case
Scalia: I know the intents of all men from the eighteenth and early nineteenth centuries who ever had anything to do with jurisprudence and they would hate my fellow justices and also gay marriage and also just marriage in general and if you want to know anything about what these guys were thinking, just ask me.
So it occurred to me that basically Scalia's theory of jurisprudence seems to boil down to this: It is impossible to know intent and we must only look strictly to the words as written UNLESS it has to do with someone who Scalia feels he "gets" on some kind of elemental level and then he knows all about intent, no worries, k? Which basically seems to me that Scalia's just running around writing Founding Fathers fanfiction at this point and pouting a lot when he gets Jossed by, say, the five other Supreme Court justices, or the majority of the American public, or Congress, or whatever. "Dudes, did you guys not read my coffeeshop AU? Because pretty sure John Marshall the barista's not down with that," is pretty much Scalia's attitude.
I've never been a huge fan of originalism, and for the first time I've connected it in my head to fanfiction: I'm not a huge fan of originalism because I am used to the understanding that a "canon" text can be interpreted any number of ways, and Scalia's kind of like the bullying BNF who I'd basically ignore in fandom because he's clearly crazy. (And originalism always seems just as maddeningly nonsensical as any piece of fandom wank you can come across. Like, copyright's my field, and when copyright was originally set up in this country, it lasted for 28 years. Now it lasts for life of the author plus seventy years. But I didn't notice Scalia running around ranting about protecting the intent of the original copyright drafters when the copyright extension was recently challenged.)
(And do not even ask me to explain Scalia's outrage over the Supreme Court declaring something unconstitutional, considering that is actually the Supreme Court's job, as established by Scalia's problematic fave John Marshall in Marbury v. Madsion in 1803.)
Anyway, I don't do a lot of legal posting here but I felt like my Scalia as BNF theory is an important addition to constitutional scholarship and must be shared. We should probably all anticipate a new Scalia!canon!fic wherein Jefferson and Adams hang out post-coitally and exult about the fact that they can't legally get married because of how much marriage would destroy intimacy and their super-kinky sex life.
And, continuing on my legal posting kick, I've been doing a lot of research for various legal articles that I have in the pipeline and I have come to this conclusion re: copyright law: that is it entirely premised on The Legend of the Suffering Tortured Artist. Like, I keep reading these law and econ-based articles that keep droning on and on about how horrible the act of creation is and how nobody would ever engage in it, ever, unless there was some sort of massive financial reward at the end of it. And I want to point out that almost nobody ever gets this massive reward they think they're setting people up for. I mean, props to the people that do, but there are a ton of people who create and will never see a dime of reward for it. And all the law and econ articles are like: Well, that's stupid then, people, that's economically inefficient, go do something else with your time.
And I go from these articles to reading fan writers talking about their fanfiction and do you know what they talk about? How much FUN they're having. They talk about playing around in sandboxes; they set up challenges for people to goof around in; they write crackfics, knowing they're crackfics, with no purpose. The law and econ articles would say: What is the socially valuable purpose of your creativity? And fans would say: ...It's fun? And that would be no good to the law and econ people. There must be PURPOSE. There must be, frankly, SUFFERING for creativity to be considered to have value.
I'm writing this down explicitly because it occurred to me, just now, today, exactly how much I personally had internalized that. I mean, I always do a lot of work defending the value of fanfiction, but for a lot of years when I was younger, I thought I could never be an actual writer because I wasn't tortured enough. I actually used to think that because I enjoyed writing, it disqualified me from ever being An Artist. I had a lot of regret about that.
And now I'm like, ...WHATEVER. I mean, it's a silly thing by which to judge art, by how miserable it makes the people it came from. A lot of great art has come from a lot of really unhappy people, yes, but I don't think that's a prerequisite. It is, however, definitely the assumption we have used for our entire copyright system. It creeps into every judgment we make about what we call "legal" or "illegal" in the intellectual property world: Have you suffered enough for this? If you haven't, we shan't give you any rights to it. And I just wanted to note that explicitly because, frankly, I think that assumption is harmful. It's linked, I think, to the attitude I used to encounter in the law firm that we all had to be callously mistreated for a few years in order to earn the reward of partner. I feel like it's also linked to, like, fraternity hazing. What's with so much of us as a society, that we only allow value to people that we have judged to have suffered sufficiently first, to the point where we actually cause that suffering, actually build it into our legal system, actually provide rewards for it?
(I do not in any way want to devalue suffering, and my thoughts, respect, and support go out to all those suffering. I merely want to highlight that there are times when we sanction our deliberate causing of suffering in others and I find that alarming.)
If you love your chosen form of creativity, if it brings you joy and fulfillment: GOOD. Embrace those things. Life is full of enough that will deprive you of that. Never devalue yourself for doing something "for fun." That's okay. Fun things can have value, too. Have a hobby that you love and don't feel bad if it doesn't make you any money. And if you put words on paper, you're a writer. Law and econ would tell you that the world has too many creative works, but personally, I don't get that. I think the world needs as many voices as it can get. I think all of the evidence tells me that, to this point, the world has never had enough voices. I need to hear more, from everyone, from all voices. Go forth and speak and never let anyone tell you that what you have to say has no value.
Plus, I can never have too many coffee shop AUs. So whatever, law and econ peeps. Fandom peeps: Go forth and create.
