The Fifth Circuit Ban on Sex Devices:
The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power--and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.
Related Posts (on one page):
- Banana split:
- Dildoes Going to the Supreme Court?
- The Fifth Circuit Ban on Sex Devices:
- Dildoes Going to the Supreme Court?
The police powers of the states were only slightly restricted by the Constitution and the Bill of Rights (which was primarily targeted on limiting federal power). To the extent that they are restricted by the Fourteenth Amendment, the state of American law with respect to dildoes in 1868 should define what rights were protected. I don't know of any laws regulating such devices in 1868, and if there were no such laws on the books, or they were not generally regulated, there might be some argument on those grounds.
To find a constitutional right to a dildo, it is going to have to be found under due process, or equal protection.
I'm sure some people will declare it the end of civilization, of course, but let's be honest -- you get more use out of a dildo than a gun!
I'm sure some people will declare it the end of civilization, of course, but let's be honest -- you get more use out of a dildo than a gun!
Unless the meaning of "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." in 1791 included reservation to the "people" of some personal rights, like intimate relations.
Clayton: "But unelected elites arbitrarily deciding that elected representatives are irrational in passing laws is likely to lead to some unpleasant results. You may not see it right now, because the unelected elites share your values. You might change your views once the unelected elites decide that there's no rational basis for repealing sodomy laws."
Actually, we just went through a lengthy debate on whether courts can or should strike down laws passed by the legislature as unconstitutional. I'm firmly in the camp that the rights of minorities need to be protected from the actions of the majorities, especially when the rights of the minorities are abridged by laws.
the question isn't whether the 'unelected elites' decide things I like, but rather what legislatures decide. The legislature didn't repeal the sodomy laws, and if they did, there would be no judicial review of it. No judge can decide that it's previous decision doesn't meet the 'rational basis' test; rather, that is only for statutes. As an attorney, you should know the difference.
And no, I'm not an attorney.
What process is due is a hard question that judges get to decide. They decide if it gives the process required for the deprivation of life, liberty or property. Requiring that any challenged law further a legitimate state interest doesn't seem unreasonable. What implementation of the 14th Amendment would you suggest instead?
My favorite analogy is a prohibition on selling or distributing Bibles. You can own a Bible, sure! But you can't buy one, you can't sell one, you can't barter for one.
Now, would that ban be a hindrance on Bible ownership?
A dildo is property - that's explicitly protected.
(Abovethelaw.com earning its pay today with this title for its post on the great dildo debate)
Or, conversely, to watch the conservative judges (esp Scalia) try to justify why property rights evaporate in the vicinity of anything to do with sex.
2. The Fourteenth Amendment contains three potentially powerful limits on state power.
a. The privileges and immunities clause was recognized by both proponents and opponents as imposing the protections of the first eight amendments on the states. It has therefore been largely ignored by the courts.
b. "nor shall any State deprive any person of life, liberty, or property, without due process of law" is also powerful, because it says that before the state can take away your life, liberty, or property, there are procedures that have to be followed.
"Life" is pretty clear.
"Property" only gets complex because people claim property interests in things that might not have been recognized as property in 1868.
"Liberty" is again something that needs reference to 1868 norms. Look at what was generally lawful in 1868; use that as the standard. Most states had pretty strict laws on the books about sexual morality, although they were generally only enforced if you made a nuisance of yourself. In many other areas, state laws were pretty laissez-faire in 1868.
I find the legal mumbo-jumbo used to justify substantive due process not very convincing. You can read particular decisions and say, "Yup! The Scottsboro Boys had only the pretense of due process because of the lack of effective counsel." But every time I read particular cases, I find myself saying, "They were just making this up as they went along."
c. The "equal protection of the laws" clause is also quite powerful, but unless you think that Congress and the ratifying states for the 14th Amendment were making a revolutionary change, there is simply no basis for the claim that every time a state law distinguishes two classes that it is violating this. State laws in 1868, and federal laws, made distinctions. They discriminated against murderers, against bigamists, against homosexuals, against the mentally ill, because they passed laws that treated each of those groups differently. Why? Because the legislatures had decided that this classification had some legitimate basis to it.
I agree that there are equal protection violations, and that the courts should not simply ignore improper classifications. But you better have a pretty strong argument for why that classification is improper. There's an 1879 9th Circuit decision I read a few years back where they struck down San Francisco's law requiring all men's hair entering the jail to be cut within one inch of the scalp. This was justified as a public health measure (lice prevention). The Court of Appeals correctly pointed out that the rule didn't apply to women, so it clearly wasn't for public health reasons. It was because of the queue that Chinese men wore for religious reasons. This was an attempt to force Chinese men to pay the fine, rather than go to jail, for violating the Cubic Air Ordinance.
In general, if the evidence for unequal protection is unclear, the courts should give the benefit of the doubt to the duly corrupted representatives of the people. This leads to some very unfortunate situations. California courts apply equal protection with respect to concealed carry permits in a manner that is ludicrous, by requiring that a challenge to a permit denial demonstrate exactly the same conditions as a person issued a permit. I am not happy about this abuse of discretion. But I would be less happy about destroying the original intent of the equal protection clause.
Don't they teach this in law school?
And I agree that a wave of dildo inflicted violence strikes a city or a state, it has a rational basis for requiring dildo locks, dildo registration, prohibiting sales at dildo conventions and, if appropriate, confiscating dildos.
In New York -- yes, New York -- the staute was on the books until the early 1980's. It was directed only at unmarried couples and, as drafted, outlawed anal intercourse, fellatio, and cunnilingus, the most common oral/anal forms of sexual behavior, but did not outlaw the rather less common (and, in that sense, "kinkier") practices of analingus and vulva-to-vulva stimulation. I was never able to determine whether the draftsmen were unaware that these practices existed, and left them out because of ignorance, or had very narrow and specific interests that they wanted to protect by artful drafting.
By the way, do you know why California law specifically prohibits rape by instrumentality? A dildo rape of the actress of Carrie Snodgrass. I rather doubt that this was the only crime that caused passage of the law.
The reason for that is stated in your own post - courts made an early mistake in ignoring the P&I clause, and so they compensate today by basing things on SDP, which is largely a code phrase for privileges and immunities. It's not textual, but it's arguably closer to the original understanding of a P&I clause with teeth than the alternative of dropping SDP while still ignoring P&I.
I note that Justice Thomas, in rejecting the idea of SDP, has also stated that he's willing to revisit the P&I jurisprudence - he recognizes the problem I describe above.
Dildoes don't stimulate genitalia; people stimulate genitalia.
I suspect many if not most of the politicians who vote for these things recognize the law is silly, pointless and a total waste of judicial and law enforcement resources, but vote for it anyway because they're afraid that otherwise people will run election ads against them claiming they voted to support perverts.
Bans on sodomy or dildos are stupid. But nothing in the federal Constitution prohibits them.
A couple of weeks ago, when these subjects were last being debated in the Senate, a post on DailyKos asked "Where are the libertarians?" The argument of that post was that libertarians should be up in arms about the Bush administration's regular violations of the Fourth Amendment, FISA, and other laws and constitutional provisions that are intended to protect our civil rights.
To what can we attribute this silence? Do the writers and readers of this site not really care about these issues? Do they think this fight is a loser and are simply focusing their attention on other subjects? Could it be that the people who post on this site, and the site's readers, are not really principled libertarians, but are Bush loyalists who simply put on libertarian airs?
I'm not trying to cause trouble here, and I'm not simply trying to tweak Conspiracy writers/readers. I an genuinely puzzled by this, and I want to provoke discussion because I genuinely enjoy some of the discussion that happens at this site.
Have you been here long? There are plenty of posts on this.
What is your basis for thinking that the Founders intended to take the common law, which they knew had evolved gradually over the previous 700 years, and freeze it as it existed in 1791?
Laws sometimes are a way of expressing societal disapproval of particular behaviors. It is perfectly legitimate to consider this as wasteful or silly--but not if you also support laws that seek to discourage "homophobia" by making it illegal to discriminate.
That doesn't freeze it, but it does give the state of the common law in 1791 a rather privileged position.
As Cornellian has pointed out, there has been considerable discussion here in the past of these matters. Professor Kerr has done an especially good job of showing that the ACLU has engaged in massive deception in its advertising campaigns about some of these matters.
The legislatures are free to pass all sorts of laws, smart, foolish, even tyrannical, as long as they conform to the federal and state constitutions. I'm not happy with state legislatures passing civil union laws--but that's the right of the legislature to do that. I'll ask you again: Would you consider it appropriate for the Supreme Court to tell a state legislature that there was a Constitutional right to live in a community where homosexuality was unlawful, and void the legislature's repeal of a sodomy law?
From Griswold v. CT You can read the entire opinion for more historical background but there absolutely no doubt that the Founders intended that the Constitution would protect a wide range of rights, enumerated and otherwise. The 14A plainly guarantees that the states may not violate those rights.
One of the areas that liberals don't seem to consider is, "What happens if people with liberal enthusiasm for power get in charge with the opposite value set?" A few years back, I think it was Scalia (who is pro-life) asked, during an abortion case, if the government had the authority to prohibit abortion, might it not have the authority in some future overpopulated world to require it? Consider all the arguments that liberals make for why we can't trust legislatures to pass laws about sexual morality. Now flip that around--imagine a Supreme Court in A Handmaid's Tale kind of future, where those uppity Californians decide to make non-reproductive sex lawful--and the Court decides that their act doing so had no rational basis.
1. The various proponents of the 14th Amendment clearly stated it would extend the protections of the first eight amendments to the states. They knew that the 9th and 10th Amendments, because they defined the relative power of the federal and state governments, were out of the picture.
2. The Supreme Court has refused to go along with full incorporation of Amendments I through VIII.
Griswold is an embarrassingly badly written decision. What it came down to was the Court found the Connecticut law stupid, and overruled it. They had no basis in the historical record for the claim that the Ninth Amendment limited state power. Indeed, Madison's efforts to get any restrictions applied to the states went absolutely nowhere.
Have you been here long? There are plenty of posts on this.
The debate in the Senate took place last week and earlier this week, and the debate in the House is occurring today. I've looked at the archives, and there are no discussions of this topic in the last two weeks. Meanwhile, the President is making statements (many of which are false) about the state of the law, what will happen if proposed revisions, including retroactive immunity, are not passed, congressmen are arguing both sides, Presidential candidates are voting, and there is no discussion here.
The lack of discussion is surprising in part because of the discussion in the past on this topic and on other topics that might be unpleasant to loyal Bushies, such as the US Attorney firings and torture issues. Yet over the last week, the subject of government wiretapping of our telephone calls, and the intense, current debate over what that wiretapping can/should look like, is ignored. Why?
While I don't particularly like the idea of the government tapping my phone, I also recognize that in the balance between stopping terrorists and the prospect that my phone calls might cause someone at FBI to fall asleep from boredom, I'll take my chances with the wiretapping. I had a rather different view before 9/11--but unlike a lot of other people, I have not forgotten what happened that day.
Citation please? My understanding was that the 14A was intended to protect all Constitutional rights from encroachment by the states.
And if you'll read carefully, you'll note that I agree. However, I'd take the position that police power restrictions on personal property should have at least a reasonable basis and be at least reasonable in scope and my point of reference for determining reasonbleness doesn't end in the late 19th centry. I'm well apprised of your contrary position.
Strikes me as an appropriate response.
So the State could order that everyone wear red and nothing but red?
"Limited government" is not just "limited *federal* government so the States can do as they damn please." Limited government means that there are some areas in which the government simply cannot obtrude.
It mistakes the fundamental idea of America to think that every right not expressly granted is contingent upon the government's whim. That kind of thinking is exactly why those suspicious of the Constitution insisted upon the Ninth Amendment.
So long as the gunman doesn't have a wide stance or serve in the US Senate, i think we'll be ok. However, if the wrong "signals" get exchanged, we might have a tragic miscommunication of some sort.
I've seen this same quote in various law review articles as well.
Oren,
Before the Bill of Rights was enacted, states had their own Bills of Rights. When the Founders wrote the Ninth and Tenth Amendments, they knew that the states did not have complete control over their citizenry, subject only to the threat of losing the next election. Furthermore, presumably, under the idea of competitive federalism, no state would seriously mandate that everyone sport a red shirt - even on Valentine's Day - lest most of the citizens abandon the State and move to another one. Nevertheless, should the people in the States have allowed their state governments to so legislate, by not reserving their own shirt-wearing to themselves, such a law would comport with the Constitution.
The idea behind the Ninth Amendment (can we get a Randy Barnett/Kurt Lash showdown here?) is that the Bill of Rights shall not be interpreted in the same manner as Art. I, Sec. 8 (i.e. rights, if not expressly given to Congress, are reserved for the states or the people); many of those opposing the adoption of the Bill of Rights feared that enumeration of rights would be used as a means to expand the federal government's power. It keeps Congress in its place so that the Bill of Rights couldn't be interpreted as giving Congress all the power except that which is excluded to it in the first eight Amendments.
Secondly, the 14A changed the entire equation . From then on, the 14A incorporates by reference all of the privileges and immunities that accompany being citizens of the USA, including the unenumerated ones. After Heller, the only unincorporated enumerated rights will be civil trial by jury and grand-jury indictment (oh, an possibly quartering of soldiers because it never came up).
What other logical meaning could attach to the phrase 'privileges or immunities of citizens of the United States'? It seems that the inescapable conclusion is (to quote Van Alstyne, William The Second Amendment and the Personal Right to Arms)
Um, did you forget what started this thread?
I like that answer.
2. The right to pick your shirt color isn't an enumerated right. (Well, okay, maybe as "freedom of speech.")
Whoosh! The sound of my point utterly missing K Parker.
ANY constitution, state or federal, in the U.S., is premised on the idea of limited government. We do not enjoy merely those rights that the government has deigned to grant us. Rather, the government has only those powers over us that we agree to grant *it*.
My red-shirt example seems silly? All right then, closer to the Texas statute: let's say that Texas prohibits any sexual position other than "missionary"-style sex, on the grounds that any other position is perverse, unnatural, etc.
What I'm hearing in this thread is "sure, the legislature could do that -- if you don't like it, get out there and wave signs for WOMEN ON TOP!!! and lobby for a new law."
I think that's ridiculous, and I think it betrays a fundamental belief that we exist at the government's whim, not vice-versa.
(I will pause to remind the skeptical that the Catholic church has a long tradition of rational discussion of both theology and morality including extraordinary thinkers such as Augustine and Aquinas.)
Have people here lost the skill of considering what a capable opponent who disagrees with their position might say?
In short, is Devil's Advocacy dead? On a law blog?
Yours,
Wince
If it's true what you say, then the gov't should force us to always make good moral decisions. And if you don't, then the courts will what, put you in jail for failing to help the poor? If you don't tithe your 10%?
And are we supposed to now follow Catholic morality for everyone? What if I'm not a catholic?
Correct me if I'm wrong, but I would suspect you are only interested in legislating sexual morality, right?
Way to entirely ignore my point. I'm not generally interested in regulating behavior between consenting adults. There are of course exceptions. For example, I'm in favor of regulating sexual activity in public restrooms.
I'm also not interested in pretending that private consenual behavior doesn't have public, societal side effects, which a legislature might rationally believe require regulation - for both guns and - for example - swimming pools and hot tubs. Don't those last two regulated devices sometimes play a role in sexual behavior?
Yours,
Wince
Logical extreme? IT seems that court is holding a rather narrow ground here. If a law doesn't fall into one of three categories, relating to prostitution, potentail of injury or coercion, or public conduct, then the state has no business regulating it.
I find that to be perfectly reasonable.
As for sexual activity in public restrooms, I don't see anyone advocating for that, so that's a straw man. Even if someone argues for that, we don't need the Catholic church to tell us it's wrong.
"I'm also not interested in pretending that private consenual behavior doesn't have public, societal side effects, which a legislature might rationally believe require regulation"
So far your only examples of this are birth control and swimming pools. Got any others? The issue at hand is the prohibition of dildos, and you stated there might be a rational basis for doing so. The Court found none. If you have any basis, please, by all means, enlighten us.
You misunderstand the scientific method. Correlation is not causation, nor is it rational basis.
Clayton Cramer:
Is it fair to say you don't see any protection against the tyrrany of the majority in the U.S. constitution?
The Texas ban on dildoes is silly, but silliness isn't unconstitutional-or it wouldn't be, if the judiciary and legal community were intellectually honest. I think we all know the constitutional principle at play here: "silly rules espoused by extremely conservative or religious people are unconstitutional because we sophisticates in the judiciary are above such things." (that's the 10 1/2th amendment).
Sk
Lawn darts? 3-wheeled ATVs? Light bulbs? flammable halloween costumes? crack pipes? etc etc etc ad infinitum?
You really believe there is a constitutional principle that applies to the freedom to use inanimate obects for personal pleasure? Perhaps its ok to ban 'animate' objects, or objects that are not used for personal pleasure? Its ok to ban chickens (animate) but not rubber chickens (inanimate)? Its ok to ban boards (work-related) but not board games (pleasure-related)? What about board games related to chickens (rubber or otherwise)?
Here's the real issue:
You are more disturbed by laws you don't like (bans on dildos) than you are by elites overrruling your legislature (lawyers who read alot deciding what elected representatives can do).
I'm more disturbed by studious lawyers overruling my legislature (even when I disagree with the legislature, and even when I agree with the studious lawyers) than I am by legislative decisions (even when I disagree with those decisions-that's democracy, after all).
In the Middle Ages, they argued about how many angels could dance on the head of a pin. Today, we argue about the constitutional difference between a lawn dart and a dildo. Nonsense in either case.
Sk
Ted is making a libertarian-ish argument - the government can't regulate things unless some threshold of common interest is met. That's essentially the descriptivist position that lost in Raich and Kelo, but still holds water in some areas of government action.
Statists take the increasingly descriptivist position that the goverment can do whatever it wants if it's for the good of someone complaining. That's the Democratic Party's position, and much of the Republican Party's position (the Christianist and neo-con wings).
Strict-constructionists take the normative position that the government can do whatever the majority wants, subject only to the black letter of the relevant constitutions. That's the Federalist Society's and Ron Paul's position. It's like communism, in that it works great as a though experiment, but ignores human nature.
Dildos were regulated because they immoral, which is unconstitutional under Lawrence.
Perhaps Clayton has already answered your objection to me adequately, but in case not:
I've spent a long time looking at the Tenth Amendment, and though I'm quite familiar with the ending clauses ("are reserved to the States respectively, or to the people") I can't seem to find any state preference on which of the two gets the rights in any particular case. Hence my appreciation for the value of state constitutions, which further restrict the power of the individual States by putting some of those rights firmly in my hands and beyond state reach.