The Volokh Conspiracy

Point taken, but the real problem with the Texas sex-toy law was that it made no sense even as "morals" legislation.

Conservatives may object to homosexuality, abortion, premarital sex, etc., typically on biblical or quasi-biblical grounds.

OTOH, it is difficult to find venerable traditions (of the kind lauded in Bowers) to the effect that mechanically tickling one's wife's clitoris until she has an orgasm, is a sin against nature, unclean, etc., etc.

I suppose one could find a few die-hards who would cite St. Augustine for the proposition that sex must be necessary, not pleasurable; but even the Roman Catholics have stepped back from accepting that proposition.

Asher, I confess to being unclear whether the prohibitions on masturbation apply to mutual masturbation in the context of general foolin' around, or indeed to female masturbation (which the good Saint may not have known about). An interesting topic which I suspect that Google will help me learn about with remarkable ease.

And tho you don't cite it, I do now recall that "laws against masturbation" were part of the moral edifice that Scalia feared might be toppled by Lawrence.

But let's rhetorically concede the point as regards the sex-toy law. If that's a slippery slope, it's as if we stood at the bottom of that slope and beheld, toppling down it at high speed and rolling before our feet ...

... a pebble about the size of a butt plug.

I think that the Nation, and its Morals, will survive.

Am I the only one here who think that this law is precluded by Griswald, regardless of Lawrence?

I think that's arguable, Justin, though the same people who detest Lawrence are unlikely to give up any love (so to speak) for Griswold.

"It's now obvious, in short, that Scalia's predictions were alarmist. Morals legislation is alive and well. The problem with sodomy laws wasn't that they were based on moral disapproval; the problem was that the public consensus about the immorality of sodomy had collapsed."

To which the Scalia answer is, I'm almost certain, "Great. Petition the legislature to overturn the laws. Vote yourself via referendum. No need to ask the Court to change lawfully enacted legislation simply because it is no longer popular."

Anti-vibrator laws may be silly, but they aren't necessarily unconstitutional.

Anti-vibrator laws may be silly, but they aren't necessarily unconstitutional.

In some areas of law, it's clear that a law being "silly" would indeed make it unconstitutional -- for instance, Free Exercise Clause jurisprudence has the notion of "compelling interest", effectively a bulwark against arbitrary restrictions on religious practice that serve no general purpose. (See Wisconsin v. Yoder and Church of Lukumi Babalu Aye v. City of Hialeah.)

Lawrence v. Texas sets some kind of standard for how non-"silly" a law about private sexual practices has to be in order to be constitutional, and how courts should go about deciding how "silly" a law is. Scalia's dissent claimed that the majority opinion created a new type of rational-basis review; others have suggested it's a substantive due process analysis entirely. The majority itself discusses the (non)existence of a "legitimate state interest" in regulating private homosexual acts; this merely invites the question, what are legitimate state interests?

Um - the bill in the Texas case was enacted in 1973. That's what - 25 years ago?

Curmudgeonly,

Unfortunately, continued enforcement or initial enactment of silly laws does not necessarily say much about what the public consensus on those laws are. Many people don't vote, especially in state elections, and especially for minor officials, and when they do it is often for reasons that have little to do with such issues. It says more about the morals and ambitions of a particular district attorney in a given county than it says about any real public consensus.

Silly anti-sex toy laws may very well be unconstitutional. They may also be constitutional. It's a close call, I think. I lean towards such laws being unconstitutional, but then I also believe, unlike most courts for some reason, that a particular clause of the Tenth Amendment actually means something ("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") At the end of the day, though, if such laws are constitutional, then it's a good example of how the constitution isn't perfect. As a matter of policy, I think most areas of generally private conduct should be beyond the power of the government.

Oops, also meant to add in a reference to the more on point Ninth Amendment. "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people." I think one of the problems with the modern privacy jurisprudence is not that it is some judicial power-grab like some people claim, but that it is an example of the Supreme Court early one deciding that certain words in the Constitution don't mean anything, forcing later doctrines to develop in a convoluted and unnatural way, when those doctrines could easily be grounded in explicit textual provisions. The Privileges and Immunities Clause is another good example of this.

I suppose if some mainstream religion required the use of vibrators, then an anti-vibrator law would run into Free Exercise problems.

There is no support in the Constitution for the proposition that mainstream religions deserve any more protection than fringe religions. Therefore, if I find some fringe religion to convert to (some form of Roman Paganism, no doubt) that supports the use of sexual toys, can I be exempt from the ban?

Much like the voters of D.C. should simply vote to repeal the D.C. gun ban at issue in Heller instead of asking the Court to overturn it?

Cornellian,

I can see how it would be confusing for you - after all, when you are so used to making up rights and putting them into the Constitution, it's hard to see how us silly originalist types actually care about what is written there.

I'll direct your attention to the Second Amendment - you know, the one that actually mentions the right to keep and bear arms [whether it be an individual right or a collective right is somewhat beside the point for this discussion - it is a right that the Founders explicitly granted us].

In the spirit of quid pro quo, can you please direct me to the Vibrator Clause?

theobromophile,

From an originalist perspective, there is no Vibrator Clause. But there is a Ninth Amendment. And where is the Power of States to Outlaw Vibrators Clause?

Displaced Midwesterner:

I don't doubt that the enthusiasm for morals legislation might vary from locality to locality in Texas and elsewhere. But it's notable, for example, that Lawrence arose in Houston, which is the state's largest city not some rural backwater. Moreover, while the prosecution in that case may have been carried out by a minor elected official, the case didn't end there. The State of Texas, through officials elected statewide, vigorously defended the constitutionality of the sodomy law. Texas also defended the constitutionality of its sex toys law. If public consensus for these laws has collapsed, why would public officials elected statewide go on defending them? It's one thing to contend that the mere enactment and enforcement of laws cannot definitively establish public consensus in support them, but surely these facts constitute some evidence that public consensus in support of these laws has not collapsed.

I'll direct your attention to the Second Amendment - you know, the one that actually mentions the right to keep and bear arms [whether it be an individual right or a collective right is somewhat beside the point for this discussion - it is a right that the Founders explicitly granted us].

In the spirit of quid pro quo, can you please direct me to the Vibrator Clause?

Read the 5th and 14th Amendments. Vibrators are property. You have the right to own property and not to be deprived of it, and shouting the magic word "sex" doesn't create an exception.

Read the 5th and 14th Amendments. Vibrators are property. You have the right to own property and not to be deprived of it, and shouting the magic word "sex" doesn't create an exception.

Now you've gone too far for me, Cornellian (damnit, I hate being caught in the middle!). There are plenty of laws (most of which I am politically opposed to, but grudgingly accept as Constitutional) that deprive me of property - just last week a LEO seized a joint out of my hand!

I expect shortly that I will be reamed from both sides of the political spectrum.

Now you've gone too far for me, Cornellian (damnit, I hate being caught in the middle!). There are plenty of laws (most of which I am politically opposed to, but grudgingly accept as Constitutional) that deprive me of property - just last week a LEO seized a joint out of my hand!

An entirely separate question. Once I get agreement that there is nothing in the Constitution that exempts a vibrator from the scope of the term "property" we can then move on to the question of whether a particular deprivation of property is constitutional. We're still on the first question here and, apparently, quite a few people around here who probably like to call themselves textualists nevertheless add a little penumbra to the term "property" in the 5th and 14th Amendments so that it reads "property other than vibrators."

that (maybe) their [vibrators] use is protected under "penumgral" rights of privacy implied in the 1st and 14th amendments,

I'm guessing you are referring to the right in the First Amendment:
"or the right of the people peaceably to assemble",
which is inapplicable to sex toys, even when used in a marital relationship: it fails the "peaceful" element (unless, of course, you and your neighbours are a lot quieter than my neighbours).

Does anyone know what justification is given by supporters of this law? Do they identify some compelling state interest?

I expect shortly that I will be reamed from both sides of the political spectrum.

*gives oren a tube of KY*

The problem with the "why don't they repeal the law" argument is that, while few probably believe that vibrators are evil and should be banned, few want to stand up and shout out for their right to, uh, self-vibrate.

And those who do, may well be countercultural enough that Normal Godfearing Folk are reluctant to stand beside them.

Who wants to be the Texas rep who proposes to repeal the sex-toy law?

Plus, voting against the repeal is a cheap and easy way of pretending to be Pro-Morals, even though in reality neither the legislator nor the voters really give a rat's ass about the subject.

I think rational basis review is fine, if it really REQUIRES A RATIONAL BASIS and isn't just a rubber (heh) stamp.

There is no rational basis for banning sex toys. I saw some alleged by the State of Mississippi in its briefs in its own recent sex-toy case, and they were preposterous.

they're used by homosexuals. and, as we all know, homosexuals are evil things that will bring about the end of society as we know it.

He said "end." Heh heh.

[/Beavis]

One other question. Isn't "the pursuit of happiness" a fundamental right? And if so, shouldn't these laws be subject to strict scrutiny?

As for the 9th/10th/14th argument: are you guys seriously telling me that James Madison et. al wrote those Amendments because they were afraid that states would ban sex toys? While I will not - and never have - go so far as to say that states have free rein where the Constitution does not give explicit rights, I think we can pretty safely say that states have always had the right to protect the health, safety, and welfare of their citizens. .

The idea that the people retain a significant sphere of private rights and activities which cannot be touched by government is an idea which permeates the Constitution (see 1A, 4A, 5A, 9A, preamble, and carefully enumerated list of powers, among others), and is readily identifiable in secondary sources as well.

I'd suggest Madison et al. wrote the Amendments to more clearly indicate the limitations on power of government, demarcate an expansive protection of liberty, and to indicate that powers and liberties require careful balancing. So, no, he clearly did not write the Amendments because he feared the banning of sex toys. But he didn't write the Fourth Amendment because he was concerned about internet surveillance; those arguments don't work when it comes to Search and Seizure, nor do they work here.

The text of 9A remains clear: denying the existence of unenumerated rights is an immediate violation of the Ninth Amendment. The next question should be to the nature and scope of these rights. It's possible to conclude that they don't include sexual privacy, but that's not the position of the court (Lawrence, although there are ways to distinguish this case from Lawrence). Nor do I believe it's the correct position. There's a good amount of evidence to suggest that the Constitution is to be interpreted in light of modern development*. I'd argue that sexual privacy is an important, intimate, and widely valued individual right today. Thus, I think the Ninth Amendment applies.



*Jefferson: "I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."

What I'm disputing is the contention that public consensus in favor of these laws in Texas, the jurisdiction that enacted them, had collapsed prior to their invalidation.

Depends on what you mean by "public consensus." If the mere fact that an elected legislature takes some action indicates a "public consensus," we would have to conclude that earmarks and the Terry Schiavo law are wildly popular.

I think it's funny that my post was so rapidly distorted and misinterpreted into saying that there should be a religious-freedom protection for vibrators. Of course, I didn't say any such thing.

I responded to a post who claimed that a law being "silly" does not make it unconstitutional. I noted that in some fields of jurisprudence, it does indeed -- one example being free exercise. In other words, sometimes a law's silliness would thereby render it unconstitutional; but not necessarily always -- it appears to depend on the topic of the law.

I then ask: under what circumstances does a law's silliness make it unconstitutional? How "silly" does it have to be? I suggested that the majority in Lawrence may be viewed as establishing a standard of "legitimate government interest" for the subject matter of sexual privacy; a law which is so "silly" as to express no legitimate government interest, under such a standard, would be unconstitutional.

Curmedgeonly,

I would certainly have to agree that Lawrence shows that enforcement or support of these kind of laws is not solely the province of minor officials in obscure backwaters. I also cannot be sure what exactly was motivating these officials. But I would note two things.

First, even if more prominent officials support such a law, that does not necessarily mean that their support translates to a broad consenus in support of their law. This is one of the major problems in general with arguments that the democratic process, acting through representives, means that any particular law reflects the societal consensus. Generally speaking most actions by an elected official reflects the public consensus, but because we elect people rather than vote directly on laws ourselves, any given law, even though it is supported by an elected official, does not necessarily reflect the will of the people.

Second, there is definitely an incentive (and arguably an obligation in the right circumstances) for higher elected officials to defend the actions of lesser officials, in the name of supporting the prerogatives of the state. In other words, officials often act as advocates for the state to preserve state authority, whether or not they agree with any particular exercise of that authority.

theobromophile,

Certainly it is not the case that "James Madison et. al wrote those Amendments because they were afraid that states would ban sex toys[]." But the point is not whether the Constitution and the Framers had particular factual scenarios in mind, but rather what sorts of general principles does the Constitution enshrine. The Ninth Amendment definetely envisions rights that are not ennumerated elsewhere in the text. The Tenth Amendment defintely envisions that both the states and the people themselves will retain the residual powers not assigned to or inhering in the federal government. The question then is, do the rights entrusted by the 9th to the people cover conduct such as the purchase and private use of sex toys, and, conversely, does the 10th and other constitutional principles give to the states the power to regulate or ban such conduct? This is certainly not a simple question and cannot be dismissed by simply saying that the Framers weren't thinking about whether people should be be allowed to purchase dildos.

I doubt very many people had any idea selling dildos was illegal. Hence, they would have no occassion to express support or disdain.

A few days ago, on this forum, we learned the Louisiana law said a florist had to be licensed. That's pretty stupid, but how many people in that state know about that law? They can't express opposition if they don't know something exists. There is no public opinion on many laws.

Elliot123:

It's quite possible that you are right that many Texans were unaware of the sex toys law. Of course, many members of the public probably are unaware of the existence, let alone the details, of a good many more prominent laws. If that fact alone deprives laws of their legitimacy as an expression of public will or judgment then precious few laws are legitimate. What laws apart from the most basic criminal prohibitions could be said to enjoy public consensus in that case?

Of course, the same is not true of sodomy laws like the one at issue in Lawrence. The public was well aware of those laws. For that topic, we have some reasonable polling data over a relatively long period of time (late 1970s through roughly the present) as well. Here's one characterization of post-Lawrence-era nationwide polling data collected by Gallup on the subject:

In the last half of 2003, it appeared that the public was closely divided in its response to poll questions about whether "homosexual relations between consenting adults" should or should not be legal. By the spring of 2004, however, a clear majority favoring legalization was observed once again, and that majority has subsequently grown. In 2007, nearly 6 respondents in 10 believed consenting homosexual conduct should be legal.

Is it really hard to imagine that, in a nation in which over 40 percent of respondents still are not in favor of the legalization of homosexual sodomy, a majority in a particular state, like Texas, might still favor criminalization? As an empirical matter, I think it is difficult to make the case that public consensus in favor of anti-sodomy laws collapsed prior to Lawrence in jurisdictions like Texas that had sodomy laws on the books.

"If that fact alone deprives laws of their legitimacy as an expression of public will or judgment then precious few laws are legitimate. What laws apart from the most basic criminal prohibitions could be said to enjoy public consensus in that case?"

If public ignorance made a law illegitimate, I agree there would be few legitimate laws. But widespread ignorance does undermine the notion that a law has popular support. We might determine a predominant public attitude, but that doesn't translate into support for or against any particular law.

I remmeber when Senator Proxmire used to have the Golden Fleece Award for particularly wasteful actions of Congress. Perhaps some enterprising state legislator could compile a list of the top ten, fifty, or 100 stupid laws and publicly call for a vote to retain or junk the laws. Ridicule has a lot of power. I'd love to see who comes out in favor of a license for a florist.

As for the 9th/10th/14th argument: are you guys seriously telling me that James Madison et. al wrote those Amendments because they were afraid that states would ban sex toys?

This reasoning is quite the opposite of how I'm accustomed to thinking about it. There is a presumption of liberty, including sexual liberty and one does not need to argue that liberty ought to be protected, one must give a compelling argument why it should be infringed.

While I will not - and never have - go so far as to say that states have free rein where the Constitution does not give explicit rights, I think we can pretty safely say that states have always had the right to protect the health, safety, and welfare of their citizens.

Excepting where such protections infringe on the citizens' Constitutional rights, cf Griswold.

Then why did the Founders not restrict the ability of the states to legislate in those areas? Was the Constitution not, originally, meant to restrict the federal government without placing substantive limits upon the States? Isn't that why states themselves had Bills of Rights?

Yes, some of this could change post-XIV, but the idea that the 9th places limits on state power - and, in doing so, created a very libertarian society - is appealing to this libertarian as a matter of result, but is, nonetheless, inaccurate as a matter of history.

Ok, sorry for the over-the-top-ness of my previous post.

I really just cannot comprehend how the 14A can be read to make the distinction that you make. That is a sincere statement, I just cannot wrap my mind around how we have come to interpret the 14A in such a tortured manner when the language is so (IMHO) utterly clear.

First off, I second your motion for a Lash/Barnett debate.

To answer your question (or the question that I begged, apparently): privileges and immunities ought to be understood broadly as the rights of free men in a state of ordered liberty. At the heart of that liberty is the right to a sphere of personal intimacy into which the government may not enter without legitimate cause.

Asher, pretending to make this about the commercial, rather that private, aspect of the sex-toy ban is disingenuous. If we start from the proposition that the public has a right to free use of toys (a point that can be debated later) then criminalizing their sale is an interference with that right. States are simply not allowed to use their power in such a fashion as to interfere with their citizen's rights.

As to the Paris Adult Theater, I concede that there is a legitimate state interest but simply having an interest is not carte-blanche to write any legislation the State wants. The law in question must be related to that interest and must be shown to further that interest in some non-abstract way. The Texas Dildo Law, such as it is, utterly fails to demonstrate any connection between the activity being regulated and the legitimate state interest.

That's not to say that, simply because I believe sex-toys fall within a personal sphere of intimacy protected by the Constitution, that no such law can be allowed. I have no problem with a law that restricts dildo-shops to certain zoning areas, require their advertising to be PG-13 or that they check ID at the door (just by way of examples of laws that are logically related to a legitimate state interest).

At any rate, I don't know why we are debating the contours of how we interpret actions by the states that interfere with Constitutional rights if you seriously believe that the State has the power to tell people what to stick into their various orifices. If ever there was a sphere of intimacy that is protected, that's it.

the Texas dildo statute, I take it, only criminalizes sale and public advertisement of dildos

I dunno, but Mississippi's statute prohibited any trade in sex toys whatsoever.

The argument that this doesn't impede the use of sex toys was easily shot down by the 5th Circuit panel, on the basis of the similar argument re: contraceptives -- obviously, if I can't buy or barter for condoms, then my ability to use them is impaired.

I have yet to see any godfearing Baptist agree that permitting Bible ownership, but banning the sale of Bibles, would be no impediment to his First Amendment rights.

More generally, I just don't think there can be a serious argument that sexual intimacy is an area where the "police powers" of the state cannot be allowed to run rampant without meeting a rational-basis test.

Suppose Texas had banned any sexual position other than the missionary position, on the grounds that any other was "deviant"? How would that be materially different from a sex toy ban or masturbation ban?

I was referring to public advertising (billboards, etc. . .) of the kind that might harm the "tone of commerce" that constitutes a legitimate state interest. Private advertising is a matter for the press, not the government, to decide. Mail ordered sex-toys can be sent "adult signature required", no problem there. As far as the internet is concerned, seeing advertisements for sex toys is so far away from the most pressing concern that I don't even think it bears mentioning.

If you care to comment on the actual merits of the argument instead of on one ancillary point (that was explicitly included solely for the sake of example!), I'm all ears.

Somehow, I'm not certain "intercede" is the right word . . .

Asher, if you live in a country where obscene films are prohibited then it's clear that it's just a different country than the one I live in. Where I'm from, while not widely advertised or talked-about, pornography is readily available both in hard-copy and digital form. The New York Times did a whole magazine piece about kink.com, an up-and-coming porn outfit that produces bondage and discipline themed hardcore pornography. You can log on to one of their many webpages (from any State in the Union, or any country) and purcahse their wares. It's not a secret and, if there's something illegal going on, it's sure going on in a big way (billions of dollars big).

You should come visit sometime . . . it's quite a country.

Because we still have a lot of reps out there who jump on the 'family values' bandwagon, and if you are on that bandwagon, loosing laws on sexual behavior will be seen as hypocritical.

As a corollary to that point, Americans don't seem too fond of the argument that some activity is immoral/destructive/stupid but that criminalizing it might actually be, all told, worse. I suppose the prohibition of alcohol stands to contrary but actually, I think it makes my point: it took years of Al Capone (and friends) to break the people's spirit. Alcohol may be bad but I think we've all learned that prohibition is quite a bit worse.

Perhaps my point is the liberals/libertarians need to adopt better political language that conveys that it is not that we seek to demean your core values but rather that we feel they have no place being legislated. It's not an "assault of traditional values" but rather a recognition that no matter how salutary the values in question are, they can do no good codified into law and applied by the machinery of justice.

Perhaps my point is the liberals/libertarians need to adopt better political language that conveys that it is not that we seek to demean your core values but rather that we feel they have no place being legislated. It's not an "assault of traditional values" but rather a recognition that no matter how salutary the values in question are, they can do no good codified into law and applied by the machinery of justice.

Except for those of us, like myself, who would be lying if we did that, since we believe the codification into law and enforcement by the machinery of the state to be not an original source of immorality, but a compounding of the immorality inherent to those "traditional values".

I'll be honest: I've always looked at Scalia's predictions and wondered what's supposed to be bad about most of them. Sexual immorality, in my mind, only comes in two forms: compelling someone to do something they don't want to do (in a word, rape), and prohibiting someone from doing something they do want to do (all the laws whose overdue elimination Scalia was lamenting).

Oh, and Pendulum, are you a judge? Please tell me you're a judge, that would make me happy.

I don't understand the "privacy" claim here. This is legislation on a subject that would easily be upheld as valid interstate commerce legislation if passed by Congress under Raich v. Ashcroft; not only are the objects themselves articles of interstate commerce, but their use competes with and affects the interstate market in prostitutes. which tte United States regulates and concerning which it has several treaties. I don't see any meaningful difference between growing marijuana in ones own home and this. This is a case involving the use of a commercial article, plain and simple.

There are those who feel that certain activities should be beyond the reach of government and that it is immoral for government to regulate them. Those who believe this are entitled to preach and teach their opinions and perhaps can get others to accept them. But we deal here with a case of unelected judges deciding cases based on nothing more than their own ideas of morality, forcing their personal ideas of what is and isn't moral down our throats. The whole concept of privacy is a moral idea, plain and simple, nothing more. Judges should not use their offices to impose a personal moral agenda, and their personal ideas of morality should not be a basis for judicial interference in other people's lives.

In Atlanta Motel, the Supreme Court upheld morality as a basis for interstate commerce legisislation, citing a long history of congressional enforcement of morality in interstate commerce, including laws against gambling, prostitution, and racial discrimination.

I don't understand the "privacy" claim here. This is legislation on a subject that would easily be upheld as valid interstate commerce legislation if passed by Congress under Raich v. Ashcroft; not only are the objects themselves articles of interstate commerce, but their use competes with and affects the interstate market in prostitutes. which tte United States regulates and concerning which it has several treaties. I don't see any meaningful difference between growing marijuana in ones own home and this.

Besides being bad law in and of itself, Raich also set the stage for these sort of ridiculous games where we try to see how many degrees of separation we can draw between the thing in question and something else regulated. It doesn't matter what sex-toys compete with or which markets they affect, they are part and parcel of a fundamental liberty interest and banning them intrudes on a sphere in which the government has no legitimate claim (unlike the regulation of drugs which, for better or worse, the FDA has all 5 fingers in).

There are those who feel that certain activities should be beyond the reach of government and that it is immoral for government to regulate them.

I don't ascribe any particular morality to the government attempting to interfere with my sex life, I just think it's a violation of the basic social contract of ordered liberty.

But we deal here with a case of unelected judges deciding cases based on nothing more than their own ideas of morality, forcing their personal ideas of what is and isn't moral down our throats.

Again, it's not a question of whether sex-toys are moral or not - the courts need not take any position whatsoever on that. The salient question is whether or not the government, in a system where we have a presumption of liberty, can regulate them.

The whole concept of privacy is a moral idea, plain and simple, nothing more.

Same with the concept of free speech, or the right to keep and bear arms, the right to raise your children as you see fit, the right to associate with any religion you see fit. These morals concepts form the basis of a government system of limited power.

Judges should not use their offices to impose a personal moral agenda, and their personal ideas of morality should not be a basis for judicial interference in other people's lives.

Neither should the legislature be allowed to violate the fundamental rights of the people in violation of the social contract.

Furthermore, isn't your last sentence just a little bit ironic? I can think of no more egregious form of interference in people's lives than criminalizing private intimate acts that lie completely outside the purview of government.

theobromophile,

From an originalist perspective, there is no Vibrator Clause. But there is a Ninth Amendment. And where is the Power of States to Outlaw Vibrators Clause?

James Madison was very clear in his speech introducing the Bill of Rights: what became the Ninth Amendment was a limitation only on the federal government--not the states. When Congress debated the 14th Amendment, every statement that I have seen is clear that the privileges and immunities clause would incorporate the first eight amendments against the states--not the first nine.

Look: I think the vibrator law is stupid. I think Idaho Code 18-6603 is stupid ("crime against nature" which bans not only animal sex, but oral and anal sex). But the state legislatures had authority in 1791, and 1868, to regulate morality in what they thought of as the public good.

Were these laws seldom enforced? Sure. Unless you did these things in public, the chances that anyone besides your intimate partner would know, and thus prosecute you, were very slim. Just because a law is stupid doesn't make it unconstitutional--or lots of laws would be in trouble.

Is it wise to have laws on the books that are widely violated and hard to enforce? Probably not. But there is a widely held belief out there that some things, by being treated as shameful, tend to stay a bit in the shadows. Sex with animals is unlawful in lots of states (although post-Lawrence, I don't see how). There are few prosecutions for it, and when you see news coverage of it, it is usually because someone was phenomenonally dumb. But guess what: most Americans want laws against sex with animals because it is a zero-cost way of expressing revulsion at a disgusting and immoral practice.

If you don't like this, perhaps you need you pick a new electorate, or abandon completely the pretense that the voters have any authority to pass laws.

The burden of proof is never upon that position, the burden of proof is upon those who believe that an activity falls within the legitimate reach of government to prove such.

It depends on what area. In the realm of civil liberties, yes, the courts have taken this view where strict scrutiny and heightened scrutiny are the standard of review. But in just about every other area, the burden is on who is challenging a law to demonstrate that the government doesn't have that authority. This is a republic, after all, where the primary source of authority is the people, and their elected representatives.

Where there is a clearly stated constitutional protection, sure, the power of the people is restricted (for example, the 2nd Amendment, or freedom of speech). But where there is no clear statement that the government's power is limited, the presumption has historically been in favor of the people--as it should well be.

Libertarians try to imagine that the U.S. Constitution was a libertarian document. It was not. It limited federal power, true, but left most other authority to the states, where the limits of that power were limited only by state constitutions, and subsequent amendments to the U.S. Constitution.

Steve2 writes:

Sexual immorality, in my mind, only comes in two forms: compelling someone to do something they don't want to do (in a word, rape), and prohibiting someone from doing something they do want to do (all the laws whose overdue elimination Scalia was lamenting).

There's only one little problem: your perspective on this is a minority viewpoint in America.

Randy R. writes:

Actually, most states voluntarily repealed their laws against sodomy, so there are reps who can be progressive -- if you happen to live in a progressive state. If, however, you live in a place like Virginia, or Iowa, or some other conservative place, then you are out of luck. Remember that there were several states that still had anti-sodomy laws on the books that applied to heterosexuals. Where were the brave reps who would do away with those laws? Certainly, even in those places, 'public consensus' has collapsed on having the law probite oral sex between husband and wife. So why weren't they repealed there?

In the case of Texas, only homosexual sodomy was prohibited after 1974. They repealed the previous "crime against nature" statute, and created a law that affected only homosexuals. So pretty clearly, the "public consensus" had evaporated about oral sex between husband and wife, and even unmarried straight couples in Texas decades before Lawrence.

Libertarians try to imagine that the U.S. Constitution was a libertarian document. It was not. It limited federal power, true, but left most other authority to the states, where the limits of that power were limited only by state constitutions, and subsequent amendments to the U.S. Constitution.

That one is a doozy. You are limited only by the state Constitutions, oh and by the way you can't deprive your citizens of their privileges and immunities or deprive them of due process and equal protection of the law! The 14th amendment is not an afterthought, it is at the core of freedom we've enjoyed (putatively, anyway) since the last rags of the Confederacy were destroyed.

Did it include the right to have sex with animals? Probably not. Criminal offense in 1868; if that was Congressional intent, why didn't anyone notice that?

Clayton, without belaboring the point, you know that I think that the State of the Union in 1868 has shit-all to do with the meaning of the 14A today. Continuing to insist that it intended to freeze the evolution of Constitutional Law and define, for all time, what constitutes our privileges and immunities makes about as much sense to me as forcing a man to wear his childhood cloths (apologies to Thomas Jefferson for stealing his analogy).

Except to the extent that having something unlawful, even if seldom enforced, acts as a restraint on public advertising, and makes contracts involving that unlawful behavior or product unenforceable.

Contracts for sodomy are illegal prostitution. As far as dildoes are concerned, I suppose some unscrupulous Texan could order a large number on credit and then bail. Other than that, what does the ban accomplish (see below for my support of public advertising regulation).

There are certainly aspects to widespread public immorality that can make a place unpleasant to live. For example, everywhere you go in Riverside County, California, there seems to be billboards advertising topless/bottomless places.

I recall explicitly supporting the right of localities to regulate outdoor advertising. If the majority of Riverside wants to ban billboards for adult clubs, that's perfectly dandy with me.

Now, I agree with you that when Rep. Bingham listed the privileges and immunities that the 14th Amendment imposed on the states by reading the first eight amendments, he probably did not mean that these were the only such rights. But how do you figure out which rights those are?

I should really hope he didn't mean just those first eight amendments, at least for the sake of Madison that was terrified that a list of rights could become a warrant for violation of rights-not-mentioned. Had Madison known that the bill-of-rights would be incorporated as a bar on state action but without the 9th, that is susceptible to expressio unius, I don't think he would have passed them at all.

As to figuring out the contours, there is ample caselaw (not any of it that you have particular respect for, I'm afraid) that demonstrates how one can proceed. A good place to start is whether right in question is "implicit in the concept of ordered liberty". Another place to start is whether the law in question interposes the government into the sphere of a man's personal life - i.e. whether the government seeks to control matters entirely outside its purview.

Now, I realize from our previous discussion (e.g. the red shirt) that you have no conception of a limit to the government purview. I'm not under any illusions that I can convince you otherwise but I mention it to put the largest possible contrast between myself and your notion of unlimited government power to interfere in my personal life.

Consider Kennedy's (bleeding heart liberal that he is) conception of the liberty protected by the US Constitution:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

Sex with animals is unlawful in lots of states (although post-Lawrence, I don't see how).

Seriously? Cruelty to animals laws invalidated by Lawrence? What?!

Sex with animals is unlawful in lots of states (although post-Lawrence, I don't see how).

Seriously? Cruelty to animals laws invalidated by Lawrence? What?!

1. I don't think laws against bestiality are rooted in opposition to cruelty to animals, but in morals. (And as a factual matter, why would they be? Who says it's cruel?)

2. In either case, why wouldn't it be? Lawrence effectively says that laws must be based on something other than morality. What are laws against animal cruelty other than morals legislation?