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Justice Ginsburg, Prostitution, and Polygamy:

Slate's Dahlia Lithwick writes, as an aside in a piece on John Roberts:

Lest you think I'm being too easy on Senate Republicans, I hasten to add that Lindsey Graham's (and today, John Cornyn's) disgraceful use of these hearings to attack Ruth Bader Ginsburg as a champion of legalized prostitution, polygamy, and pederasty is beyond vile. . . . [E]ven as [conservatives] call for bipartisanship, they can't seem to resist attacking a judge with distorted versions of her 30 year old writings. Nice.

Yet it seems to me that there's no real "distort[ion]" of Justice Ginsburg's views on prostitution, polygamy, and lowering the age of consent; and it's hard therefore to see why there's any "disgraceful" or "vile" in the Republicans' arguments. I've blogged here about the age of consent question [UPDATE: since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error as to the age of consent, and the report's critics, including me, themselves erred in not seeing the error on this particular matter], but let me speak a bit more about prostitution and polygamy. Sex Bias in the U.S. Code (1977), on which Ginsburg was one of the two lead coauthors, has this to say (among other things) about prostitution (pp. 97-102; there is similar text at pp. 72-76 of a 1974 version of the report):

These [federal] prostitution proscriptions are subject to several constitutional and policy objections. Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). But sex-neutralizing the statutory language is unlikely to effect significant substanive change, for enforcement concentrates on the female even when male prostitution is encompassed in the same category. With the exception of several communities where it is police policy to arrest the client also, it is realistic to expect that vigorous enforcement will be directed against the person who patronize a prostitute. . . .

Although S. 1400 §1841, in contrast to the Mann Act which it would replace, is cast in sex-neutral form, retaining prostitution business as a crime in a criminal code is open to debate. Reliable studies indicate that prostitution is not a major factor in the spread of venereal disease, and that prostitution plays a small and declining role in organized crime operations. . . .

Recommendations . . .

18 U.S.C. §§1384, 1952(b), 2421-2424 [the prostitution sections that the report was referring to] — Repeal these sections.

The report also has this to say about polygamy (pp. 195-196; see pp. 190-191 for similar text in the 1974 version):

This section [48 U.S.C. §1461] restricts certain rights, including the right to vote or hold office, of bigamists, persons "cohabiting with more than one woman," and women cohabiting with a bigamist. Apart from the male/female differentials, the provision is of questionable constitutionality since it appears to encroach impermissibly upon private relationships. [Endnote: Cf. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 439 (1972).]

Recommendations . . .

48 U.S.C. §1461 - substitute 'person' or 'individual' for 'woman.' If the section is retained, it should be narrowed to avoid conflict with constitutionally-protected privacy interests.

So the report indeed spoke out in favor of legalizing prostitution: It (1) suggested that prostitution laws are "arguably" unconstitutional under the right of privacy, (2) argued that they are in practice nearly certain to be enforced in sex-discriminatory ways, and that (3) expressly recommended that they be repealed. It thus is no distortion at all, I think, to suggest that Justice Ginsburg supported legalization of prostitution, given that her name is indeed on the report, and that it's unlikely that she would have just missed an extended substantive passage such as this one.

It also seems to me that the report can fairly be read as favoring the legalization of polygamy. It is conceivable that it might have been objecting only to restrictions imposed on women who are not themselves purporting to be married to a bigamist, but who are simply living with the bigamist without claiming a marriage. But given that the section was in practice likely to be focused on people who are indeed purporting to be living in plural marriages, it seems that the report was indeed suggesting that the ban on polygamy was illegal. (Note that the section could not be reasonably read, I think, as objecting solely to stripping polygamists of the right to vote: Given that it's permissible to strip someone of the right to vote because of his past crimes, the constitutional objection must be that polygamy can't be criminalized in the first instance. Moreover, the objection is to "encroach[ing] impermissibly upon private relationships," with cites to the right-of-privacy cases, not to encroaching impermissibly upon voting rights.)

So in any event, it seems to me that assertions that Ginsburg supported legalizing polygamy are at most potential overreadings of the report — albeit overreadings that are perfectly plausible, though not the most careful, interpretations — and not "vile" "disgraceful" "distort[ions]." And, as I said, such assertions about her supporting legalized prostitutions seem to be completely accurate.

As I noted in my earlier post, one could argue that Justice Ginsburg only believed this in the past, and might not believe this now, 30 years later. But she was in her 40s at the time, and a mature legal scholar; and there seems to me to be little independent evidence that she's changed her mind. It thus seems like a fair inference that she has kept her views, and there seems to me little vile, disgraceful, or distorted in making such an inference.

Likewise, it seems to me that Timothy Noah, Slate's Chatterbox, is mistaken in generally characterizing as "ridiculously distorted" Ed Whelan's quotes from Justice Ginsburg's report. Ed Whelan wrote, quoting the 1974 version of the report:

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [190-191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.” [75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [131]

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [133]

Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

As best I can tell, all of these quotes are quite sound, and in context. They may have profited from slightly more context — see, for instance, the Boy Scouts/Girl Scouts quote, which in context gives more evidence of the stereotyped sex roles that Justice Ginsburg was referring to. But none of them strike me as being particularly out of context, as you can see for yourself by looking at the 1974 version of the report, posted by Mr. Whelan.

Again, then, it seems to me that the critics of Justice Ginsburg are more sinned against than sinning here. They are pretty accurately describing Justice Ginsburg's views, and being undeservedly called names because of it.

SimonD (www):
Another thing to keep in mind is, what basis do laws against polygamy and prostitution rest? If you're willing to conclude that morality is an inadequate foundation for law, and that society may not prescribe conduct merely because a majority finds it morally questionable - on what alternative basis could one sustain such laws? It seems to me that the onus is on Dahlia to explain why Ginsburg is either not for those things, or would not rule against such laws, given that a) on a level of personal preference, Ginsburg seems to have written in opposition to such laws and b) as a jurist, there is nothing in her record which would stand in opposition to such a ruling.

As I said the other week, that slippery slope is damned slippy. People who say that that a ruling won't put us onto that path need to point out the footholds, not offer glib ressurances or flat-out avoid the question.
9.26.2005 9:06pm
unhyphenatedconservative (mail):
"Yet it seems to me that there's no real "distort[ion]" of Justice Ginsburg's views on prostitution, polygamy, and lowering the age of consent; and it's hard therefore to see why there's any "disgraceful" or "vile" in the Republicans' arguments."

Don't you know, calling liberals on their views is always disgraceful. It is fundamentally unfair to demand that they defend their libertine philosophies rather than heap praise on their "tolerance."
9.26.2005 9:33pm
Steve:
There is plenty of rational basis for laws against prostitution that has nothing to do with moral judgments. Prostitution, in the real world, is not always some idealized market transaction between consenting adults. Young girls are often forced into prostitution by physical force, fear and intimidation, drug addiction, and the like. The abuses of prostitutes by their pimps and customers are well-documented, and a prostitute often ends up with a serious disease, if she is lucky, or dead, if she is not. You could certainly make the case that some of these outcomes could be regulated and improved if prostitution were legalized, but we're talking about a rational basis test here. When there is an industry in which such results are commonplace, it is hard to claim there is no rational basis for making the activity in question illegal.
9.26.2005 9:33pm
Perseus (mail):
If 30 year old writings by Ginsburg should be discounted to some extent because they are so old, why shouldn't the writings by Roberts while he worked for the Reagan administration likewise be discounted?
9.26.2005 9:43pm
LisaMarie (mail):
Steve,
Couple of things I was wondering. Kidnapping is illegal. Holding people against their will is illegal. Assault is illegal. Why are laws against prostitution necessary to prosecute these things when they are already against the law whether they are connected with selling sex or not? As for the disease question, plenty of sexual practices engaged in by consenting adults with no exchange of money do very well to spread sexually transmitted infections. Would these activities pass the rational basis test to make them illegal as well?
9.26.2005 9:55pm
juris imprudent (mail):
Steve writes:

"Prostitution, in the real world, is not always some idealized market transaction between consenting adults. Young girls are often forced into prostitution by physical force, fear and intimidation, drug addiction, and the like."

Are these conditions found in the state of Nevada? Or are they more characteristic of those states wherein prostitution is illegal?
9.26.2005 10:02pm
The Drill SGT:
LisaMarie,

Why are laws against prostitution necessary to prosecute these things when they are already against the law whether they are connected with selling sex or not?

Answer: One can't deny the overarching economic law of supply and demand. Poaching elephants has been illegal for 50-60 years. It wasn't till any trade in "new" ivory was enforced that poaching became much less profitable and prevalent.

Outlawing prostitution clearly dampens the demand for sex slaves in many ares of the world and supports law enforcement activities against drug trade, abuse of children, pimping, etc.
9.26.2005 10:03pm
Dick King:
LisaMarie, I assume you would advocate an immediate repeal of gun prohibition laws? Murder is illegal [by whatever means]. Reckless endangerment is illegal. Etc.

-dk
9.26.2005 10:20pm
Anderson (mail) (www):
Alas, even the Divine Dahlia nods.

Does she not *read* the VC? It would seem almost a job requirement. Dahlia, come out from your lurking!
9.26.2005 10:31pm
Tom952 (mail):
Do you happen to know if these radical writings by Ginsberg discussed during her confirmation hearings, or were the Repubs caught napping?
9.26.2005 10:36pm
Justice Fuller:
Baseless snarky asides about conservatives are standard fare in Lithwick columns these days. Go figure.
9.26.2005 10:43pm
DL (mail):
What's clear about that? Where are the facts or figures that provide said clarity?

Dan
9.26.2005 10:49pm
Challenge:
"Prostitution, in the real world, is not always some idealized market transaction between consenting adults. Young girls are often forced into prostitution by physical force, fear and intimidation, drug addiction, and the like. The abuses of prostitutes by their pimps and customers are well-documented, and a prostitute often ends up with a serious disease, if she is lucky, or dead, if she is not."

Guilt by association, then. What makes me think you are less likely to promote this sort of argument with respect to homosexuality?

It's funny that you cite pimps as reasons prositution must remain illegal. Pimps are an artifact of criminalization of prostitution. If one wants fewer pimps, it seems, one should legalize prostitution at once. The equivalent argument is: Prohibition is bad because Al Capone is a vicious killer.
9.26.2005 11:13pm
Challenge:
Opps. Made a typo. That should read, "The equivalent argument is: Prohibition is GOOD because Al Capone is a vicious killer."
9.26.2005 11:16pm
=0= (mail):
It wasn't till any trade in "new" ivory was enforced that poaching became much less profitable and prevalent.

Clearly, then, we need to pass a law against any new sex while not inhibiting trafficking in old, thereby aligning economics with law.
9.26.2005 11:26pm
Justin (mail):
What's really interesting here is every time Eugene posts that Justice Ginsburg was in favor of limiting the age to 12, numerous posters point out significant flaws in the argument, to the point where nobody comes across believing Eugene's post once they read the comments. Then, what does he do? Attacks someone based on the fact that the argument's really really good, and just repeats the same arguments that are always subject to the same responses (mainly, that you have to believe that silence on a tangential issue is the equivalent of active support, that one lawyer working on a report for a client represents that lawyer's personal viewpoint, and not the client OR the other lawyers, and that if Justice Ginsberg really supported such an idea you'd have better evidence, given that she's never affirmatively stated that this was her position at all).

And this isn't enough. Professor Volokh not only feels no need to respond to any of these (dominating) arguments, he says that the only *laughs* only possible defense Justice Ginsburg has is that she no longer believes it!!!! Like he's conceding something in the spirit of bipartisanship???

This is rediculous, and it's all wrapped up in a pox-on-both-their-houses defeatism that conservatives are using these days for the utter failure of their great experiment.
9.26.2005 11:33pm
Eh Nonymous (mail) (www):
I'm not sure this post is at all well-founded.

The accused article noted that a behavior "is arguably" covered by the (then still-developing) "zone of privacy" jurisprudence being filled in by the Supreme Court. It also called for the repeal of certain _federal_ legislation concerning it, basing this call on the evident fact (evident to everyone but conservatives and anti-feminists, I conjecture) that laws like that are almost always imposed in arbitrary and indeed discriminatory ways. Same as restrictions on sodomy.

On that basis, certain folks seem to conclude RBG was doing certain things: calling for an end to criminalized prostitution (I'm not clear she was; the repeals of those statutes wouldn't change any state laws, would they?), supporting certain behavior, etc. I thought this was a piece of legal analysis and recommendations based on empirics, including legal Facts such as developing law?

I don't know if pointing out Facts is "vile and disreputable," but this whole line of questioning smells to me and I move it be stricken. Let's go back to talking about which members of Congress were formerly KKK supporters... and which former Presidents. That'd be more fair, wouldn't it? Also, let's tar and feather our opponents by using the sins of their fathers, if not their earlier words from another context.

This endeavor makes me tired. Can we please attack someone's _present_ words or actions?
9.26.2005 11:38pm
Yankee_Mark:
I'm with Justin on this one, reviewing previous thread(s) along with the various articles and their references it seems abundantly clear that the assertions of Graham (and later Cornyn) were huge stretches at the very least, and quite likely willfully politicized misrepresentations.

The worst mischief in this line or reasoning is that it allows one to imply that endorsing any part of any piece of legislation (or revision) can be stretched and twisted into an endorsement of every jot & tittle. I don't REALLY think we want to head down that particular bunny trail!
9.27.2005 12:03am
Per Son:
One difference with RGB and Roberts is that RGB sat as a Judge for 13 YEARS!!!!! That meant she had 13 years of opinions to show that she would not push the gobbledegook that Conservatives keep bringing up about her views.

Roberts, on the other hand, has only been a judge for a few years. So I have two shames. One on the Dems for not pointing out that we are dealing with apples and oranges, and shame on the Repubs for acting as if they are comparing apples.

Yeesh!
9.27.2005 12:11am
Challenge:
"One difference with RGB and Roberts is that RGB sat as a Judge for 13 YEARS!!!!! That meant she had 13 years of opinions to show that she would not push the gobbledegook that Conservatives keep bringing up about her views."

This means absolutely nothing. Scalia wasn't voting to overturn Roe in his tenure on the DC Circuit. Does that mean he won't vote for it now that he is a Supreme Court justice? Talk about comparing apples to oranges.
9.27.2005 12:25am
Challenge:
I have followed these threads, perhaps not as closely as others, but I have seen no arguments which explain away the language contained in the reports signed by RBG.

It seems fairly clear she believed prohibitions against polygamy and prostitition should be repealed because of their questionable constitutionality. It is also clear that she supported, by virtue of signing the report, lowering the age of consent to 12.

Now, where are these powerful arguments which nullify the clear text Volokh has provided? It's telling that although these are powerful and "dominant" arguments, they are nevertheless no where to be found thus far on this thread.
9.27.2005 12:33am
Bob (mail):
Challenge:

Believing that polygamy and prostitution should be repealed because of there questionable constitutionality does not make someone a champion for legalized prostitution and polygamy. It makes them honest.

It is not the same think to question the legality of a law and to champion the cause that the law prohibits. Assuming this is not a valid inference.
9.27.2005 1:02am
SimonD (www):
Professor Volokh not only feels no need to respond to any of these (dominating) arguments
I don't want to speak for our gracious host, but I suspect that the reason he feels no imperative to respond is that the arguments presented "against" are so ephemeral that one can only conclude that they are intended to be factetious.
9.27.2005 1:16am
SimonD (www):
Believing that polygamy and prostitution should be repealed because of there questionable constitutionality does not make someone a champion for legalized prostitution and polygamy. It makes them honest.
Here's a novel approach: let's say that Justice Ginsburg SHOULD believe that prostitution, polygamy and the like are unconstitutional.
9.27.2005 1:18am
Per Son:
Challenge:

Who was talking about Scalia? How in any way is Scalia relevant to this thread? I thought we were talking about prior writings, their relevance to the current confirmations, and what RGB exactly believed.
9.27.2005 1:19am
Challenge:
"Believing that polygamy and prostitution should be repealed because of there questionable constitutionality does not make someone a champion for legalized prostitution and polygamy. It makes them honest."

Yes, and I am certain those criticizing her views about the Constitution understand that distinction. Nobody was accusing of RBG of personally approving of the practices. They were accusing her of holding--at least once--a radical (or "out of the mainstream") interpretation of the Constitution.

"Who was talking about Scalia? How in any way is Scalia relevant to this thread?"

I don't see the wisdom in not admitting you made a poor argument. It happens. It is a relevant because you were waxing on about her long career as a federal judge, and how that made her prior radicalism irrelevant. One's record can be informative. Where there is ambiguity in a prior decision, and they come out for one side or another, then that may betray some sympathy for one mode of interpretation. But if a judge is doing her job--applying the "rule of law" as determined by the Supreme Court--then the record is relatively unenlightening. How do you think Scalia was confirmed 97-0? Thus, your point about her record on the DC Circuit is without merit.
9.27.2005 1:29am
Per Son:
You are still quite off. My point is this, some have argued that RGB said this and that, but it did not matter. Then Roberts said that and this, but he should be judged by the same standard applied to RGB. Well, I just pointed out that there was certainly a difference, because one had 13 years of opinions demo nstrating their judicial philosophy. This should have been brought out by the Dems.

Ginsburg and Scalia's amount of yea votes is irrellevant. Different times, situations, and a different makeup of the Court.
9.27.2005 1:43am
Challenge:
Yes, but a federal judge must defer to the interpretation offered by the Supreme Court, not her own. Her record as a judge then proves very little.

She advocated exactly what some GOP senators accused her of advocating. Sorry. Tough luck. Bite the bullet.

Let's say a lawyer says sodomy is not protected in some document or another. He severely criticized Lawrence and related cases. Then they become a federal judge and uphold Lawrence. What does that mean they will do as a Supreme Court justice? Absolutely nothing, and you should know that.
9.27.2005 1:50am
Justin (mail):
SimonD, only a person who doesn't know what a lawyer in America does, or a politician in America does (or a poltiician in England, or oh my god someone-who-has-never-met-a-minority), would call the 3 major objections to treating a group project dealing ENTIRELY with a SEPERATE PORTION of a bill's "implicit" support of a part they a) were not dealing with at all, b) that Ruth Bader Ginsberg has never said a word about, as ONE OF THE MEMBER OF THE GROUP'S OUTRIGHT SUPPORT FOR SUCH A PROPOSAL "ephermal".

But, since you seem to be in charge of thinking for Professor Volokh, be my guest at the reasoning against treating these things as ephermal, rather than putting your trust in Der Fuhr...I mean Professor Volokh, my apologies, heh heh (note non-Godwin's law reference to Apocolypse Now).
9.27.2005 1:57am
Justin (mail):
PS Why do conservatives always try to play "what did liberal X mean when he put in footnote 472b" with liberals, and why are their assinine?

Look, the onus on whether Ginsberg, who has affirmed sentences for prostitution, thinks prostitution is wrong and unconstitutional or not, is NOT on liberals, NOR is it on Justice Ginsberg. Furthermore, the onus on whether George W. Bush "doesn't like black people" is NOT on George Bush or conservatives.

We do not force people to defend themselves against outrageous accusations with flimsy evidence in a civil society, esp. through whispering campaigns that we fully do not expect any meaningful reply to the public person.
9.27.2005 2:01am
Justin (mail):
whoops missing from the first sentence was "why are their answers always assinine?"
9.27.2005 2:02am
Per Son:
A candidates judicial record goes very far as to demonstrating their judicial philosophy. You rarely find a strict-constructionist get elavated who then magically becomes an advocate of a living constitution, and the like. Perhaps I am wrong. According to your logic I should not be suprised if Edith Jones is elavated and turns out to be pro-defendants' rights.

Lastly, speaking only for my self, what bullet shall I bite and why did you say tough luck? I do not recall saying that she did not advocate those positions.
9.27.2005 2:02am
Buck Turgidson (mail):
Outlawing prostitution clearly dampens the demand for sex slaves in many ares of the world and supports law enforcement activities against drug trade, abuse of children, pimping, etc.

Interesting point, particularly the "clearly" part. Doubly so since evidence "clearly" points in the opposite direction. An opinion does not become fact when you add "clearly" to it.

It seems fairly clear she believed prohibitions against polygamy and prostitition should be repealed because of their questionable constitutionality.

This also seems to be Eugene's point in repeated posts on the subject. The trouble is, she the report was not "repealing prostitution" and "repealing polygamy". It claimed that existing statutes should be repealed. Take a look at the original statutory language and the report's objections and you will likely agree that the authors had a point.

Now, the report does seem to suggest that prostitution as an institution should not be criminalized. It does not even make a claim that the constitutional argument is solid--"arguably" certainly suggests lack of conviction on this account. But, aside from linguistic objections that seem to be perfectly valid, the rest of the argument is purely libertarian. I find it ironic that the people who seem to drag this out are self-proclaimed libertarians who, in other context, would be emracing these arguments.

But even if we buy into Eugene's argumentation overall, his claim "overreading" on polygamy is not borne out by his own quotations of the report. At best, there seem to be two readings of the word "bigamist" in the original statute--one the more formal use of a person "legally" married to two other persons and the other of someone cohabiting with more than one person. From what I've seen so far, the former is not addressed in the quoted statement. Instead, the report directs itself to the latter, pointing out that 1) use of "woman" and "women" is sexist and 2) private actions that do not fall under some other statute (as in the former case, where marriage license can legally be issued to a person exclusively with one other person--subject to death, divorce, annulment or some other revocation process) should not be penalized civilly (taking away voting rights, ability to hold elected office, etc.). I am not sure the latter does not apply even to formal violations (i.e., someone married to two other individuals at the same time), but that's a different issue. In general, statutes written purely on moral grounds should not be enforced (i.e., they should be repealed). Law is a pragmatic animal, while morality is the domain of philosophy and religion. If you want to moralize, go to church. Don't like someone's behavior--get them excommunicated. But leave your personal moralizing prejudices out the legal arena.

I know that some moron just might take what I've written above and claim that I am making an argument exactly along the lines of the slippery slope that Santorum claimed that Lawrence will take us, e.g., bestiality, polygamy, pedophilia, incest. This is utter nonsense. There are perfectly reasonable socially pragmatic arguments for banning each of behaviors that is not present in consentual homosexuality, for example. I like someone comment above, "Prohibition is good because Al Capone is a killer." This kind of post facto justification should never be made to make law. So the argument that prostitution is a magnet for other crimes is baseless unless we can show that legalized prostitution is a magnet for other crimes. Absent this evidence, we have to assume that it is the criminal nature of the enterprise that allies it with other criminal enterprises. Remove the legal restraint--with regulation, if you wish (I certainly would support regulation)--and you losen the criminal connection. Quite a number of libertarians make the same argument for decriminalizing (again, this is not the same as legalizing) marijuana, if not a wider range of recreational pharmaceuticals. I doubt that prostitution can be demonstrated to be any more inherently harmful than distribution of marijuana (or tobacco, for that matter).

To be honest, I am surprised by Eugene's repeated attack on this front. To this point, I found him to be one of the more consistent libertarians on the blog, one not afraid to support a liberal argument if it falls in line with libertarian principles (or if the opposing conservative argument is plain repulsive). But he dropped the ball on this one. RBG and her coathors (another point that seems to be lost on the self-righteous critics) make a fairly reasonable libertarian argument for restriction of regulations--more to the point, for removing the criminalizing restraints on certain activities, without really making much hey concerning alternative regulation. It is only the narrowest--and, in my oppinion, incorrect--characterization of the argument that makes it morally questionable, and, even then, only within the narrow scope of a particular moral code largely associated with Christianity. What we end up with is just so many stones in glass houses.
9.27.2005 2:12am
Challenge:
Is it me, or does none of the criticism above seem relevant to Professor Volokh's post? I'm still waiting for these great arguments which so clearly prove Volokh wrong.

Summary of recent arguments:

Eugene's narrow point about the validity of some statements means he's not a good libetarian. Apparently, being a libertarian includes tolerating dishonest attacks, because said dishonest tactics may further a libertarian interest. OK.

Justin seems to just ignore the issue altogether, and claim Ginsburg is innocent until proven guilty, or something. Problem is, her statements speak for themselves.
9.27.2005 2:27am
Challenge:
"Look, the onus on whether Ginsberg, who has affirmed sentences for prostitution, thinks prostitution is wrong and unconstitutional or not, is NOT on liberals, NOR is it on Justice Ginsberg. Furthermore, the onus on whether George W. Bush "doesn't like black people" is NOT on George Bush or conservatives."

Hmmm. If Bush wrote that blacks were "arguably" inferior to whites. Where would the "onus" be again?
9.27.2005 2:29am
Thorley Winston (mail) (www):
If you're willing to conclude that morality is an inadequate foundation for law, and that society may not prescribe conduct merely because a majority finds it morally questionable - on what alternative basis could one sustain such laws?


Except no one has made any such concession. The police powers reserved for the States allow them to protect public "morality" which is an issue of public policy which is determined by the legislature who are elected by (drum roll please) a majority/plurality of the voters as befitting a "republican form of government."

There may in fact be meritorious arguments for decriminalizing/legalizing these activities but the onus is on those who favor their decriminalization/legalization to convince a majority of the people in their respective States that it would be beneficial. So far they've partially succeed in one (at least with regards to prostitution) but the other 49 don't seem interested in following Nevada's experiment -- nor should they be forced to by the courts.
9.27.2005 3:11am
Bezuhov (mail):
This is like the flap over Kerry mentioning Cheney's daughter. To a certain sort of liberal, it goes without saying that conservatives are anti-gay, so they assume Cheney's daughter to be problematic based on an inaccurate assumption. Likewise, to a certain sort of conservative, it goes without saying that liberals support all sorts of ideas regarding sex with which they disagree. And so to make the point that they can disagree with a SC nominee on policy but still approve their nomination, the honorable senators reach for the most obvious example to them. But again the example is premised on an assumption not clearly in evidence.

Are there conservatives who are anti-gay? Sure. Are there liberals with highly umpopular and perhaps unwise views on sexuality policy? Again, no question. The leap from some to all or from some to one specific individual is prejudice, absent clear specific evidence. 30-year-old writings struggle to rise to the applicable standard.
9.27.2005 3:46am
Jeroen Wenting (mail):
Does it even matter what the justice's personal opinions about the matter are?
It seems to me the justice merely voiced an opinion about the constitutionality of certain laws banning things like prostitution and polygamy. A good justice places the law above personal opinion.
Far too many justices do not of course, which is the very basis of the problems in the justice system that exist.
A justice should ideally only use personal opinions when the law doesn't provide for the case at hand, and even then it could be argued that something isn't illegal as long as there's no law banning it.

As an academic exercise, it is very well possible to conclude that banning prostitution is an invasion of personal freedom (freedom of choice, invasion of privacy, etc.).
Same with polygamy.

The ideas of merging sexes in prisons and combining mothers' day and fathers' day are more troublesome.
The first is at best impractical (how to protect inmates of one sex against sexual assault by inmates of the other sex, prison staff have a hard enough time dealing with same-sex rape as it is), the other seems to hint towards wanting to regulate social customs through law, something that goes against what a good justice should advocate.
9.27.2005 5:00am
Paul doson (mail) (www):
Its nice to see that there's a lot of discussion going on here. Quite interesting.
9.27.2005 6:50am
Paul doson (mail) (www):
Well said. I totally agree with you. Infact, its really impractical.
9.27.2005 7:01am
Aultimer:
Come on Prof V.! You have to acknowledge that the R's are discussing RBG's legal arguments as though they were personal moral and ethical preferences. The spinners may not exactly say "RBG likes polygamists and prostitutes! She's going to legislate these evils from the bench!", that's clearly the impression they're trying to create with the masses.

It's important because it's the same distinction as putting on a capable defense for a murder trial.

And yes, there is a degree to which this is like Roberts' writings as a government employee lawyer, but that's a red herring.
9.27.2005 9:37am
Yankee_Mark:
Okay Challenge ... to rehash from the other threads, articles, and postings ...

Imagine you are working with a draft piece or legislation or regulation that covers numerous issues, including one you are passionate about. So you take the working draft and rework the issue of grave import to you. I think that all have conceded this to be an accurate reflection of what RBG (of whom I'm no fan) did in the matter under discussion. So, to develop a hypothetical example...

One envisions a highway bill that does not do enough to fix a bridge in your district but also funds the Rock & Roll Hall of Fame. Modifying the draft to increase the funding for your bridge project and leaving the bill otherwise unchanged does not spell support for the RRHOF and the most one should infer is grudging acceptance of it with a greater likelihood that you consider arguing the RRHOF a distraction from your real issue of concern.

There were numerous problems with the section containing the age setting mechanism that were in flux and being worked/addressed by other people ... mainly the matter of how to handle sex between a 15 y-o and a 13 y-o. RBG's key issue was perceived gender discriminatory aspects in an earlier section, so she addressed gender and left the rest of the draft unchanged, allowing others to hammer away on the issues that were of greater concern to them.

The other aspect covered in the other thread is that even if RGB had been a supporter of changing the number to 12 (which is far from clear), that is clearly an entirely different question from setting that number as the age of consent. This statute was defining a particular offence and questions of age of consent and statutory rape would reasonably be addressed under a different statute. You just can't get there from here and it was unfair, perhaps even a 'smear' for Graham & Cornyn to try to do so!
9.27.2005 9:55am
Dread Justice Roberts:
Dear Prof. Volokh,

To the extent that there was once any basis for believing you are not a hack, it is gone. You bootstrap RBG's argument that anti-polygamy laws (making certain conduct illegal for women and not men) are biased against women to say it can "fairly be read as favoring the legalization of polygamy." I'm sorry, but that is not a fair characterization at all. How does it happen that someone who is apparently intelligent convinces himself that such a twisted and biased accusation is "fair"?

I suppose I should have known when you expressed support for torture because you think criminals deserve to endure pain. Maybe I should have realized when you pursued a witch hunt for the two or three westerners who support the insurgency, but here you display not just willful indifference to the facts, but purposeful, considered distortion of them. You are evil.
9.27.2005 9:55am
Daniel Chapman (mail):
I place the Mark of Shame upon this entire thread:


X <--- (The Mark of Shame)
9.27.2005 9:56am
Medis:
Raise your hand if you think we should, as a matter of policy, restrict the right to vote of a person cohabiting with more than one person.

Just checking.

And by the way, is that what is ordinarily meant by "legalizing polygamy"? Really? Really really?
9.27.2005 10:28am
John S (mail):
It seems grossly unfair that the Senators would make such a bold statement about what RGB believes (they didn't stress that this document was over 30 years old) in a hearing where RGB is not present and had no ability to respond. This charge is so heavy and obviously targetted to the religious right to foment more antipathy towards liberal "judicial activists".
9.27.2005 10:35am
Challenge:
"You have to acknowledge that the R's are discussing RBG's legal arguments as though they were personal moral and ethical preferences."

You are acting like her radical interpretation of the Constitution and her wacko policy preferences (lowering age of consent to 12) is totally unimportant to her confirmation. If someone argued against Brown that does not mean they are a racist, but it does cast serious doubt on their fitness to serve on the high court. Similarly, someone who at the minimum sympathesizes with arguments which would provide constitutional cover for prostitution and polygamy may be unfit for office.

And further: It's unreasonable to attribute beliefs found in a report which she signed and coauthored? You have got to be kidding right?
9.27.2005 12:24pm
Alceste (mail) (www):
From the articles I've read, Ginsberg was only suggesting changes to the federal code (to remove the purportedly sex-biased language) - was there anything in the report to suggest that she was promoting these changes on a state level or that she felt these issues should be controlled by federal law?
9.27.2005 12:25pm
Challenge:
"From the articles I've read, Ginsberg was only suggesting changes to the federal code (to remove the purportedly sex-biased language) - was there anything in the report to suggest that she was promoting these changes on a state level or that she felt these issues should be controlled by federal law?"

It necessarily follows, given that she has no cover of "strict constructionism." That is, she does not subscribe to limited federal role, so what other reason would she wish to lower the age of consent. Also, remember it was a lowerning of consent, not abolishing it, which would be more in tune with a "federal only" defense.
9.27.2005 12:30pm
Medis:
In other words, Challenge, you start with that you believe she was advocating, and work backward from there to an interpretation of the document in question.

Sounds perfectly fair to me.
9.27.2005 12:36pm
Challenge:
In other words, Medis, you are unwilling to take at face value statements in a report which she coauthored and signed.

Sounds perfectly reasonable to me.

Further, I did not start with what I believe. I read the report, her words. Now, given those statements, I do not think a jurist like Ginsburg has much of a defense that she was merely being a good federalist, sorry. And of course the arguments about prostitution and polygamy are of course applicable nationwide.
9.27.2005 12:48pm
Justin (mail):
Did I write apocolypse now? Wow, I don't remember drinking. Obviously, the reference was to Dr. Strangelove.
9.27.2005 12:49pm
Jim Rhoads (mail):
Aultimer's last paragraph notwithstanding, this thread is a masterful example illustrating why parsing Robert's 30 year old writings as a staff attorney and advocate was not probative on his qualifications for Chief Justice of the United States.
9.27.2005 12:57pm
Aultimer:

Challenge:
You are acting like her radical interpretation of the Constitution and her wacko policy preferences (lowering age of consent to 12) is totally unimportant to her confirmation.



She's already been confirmed.


It's unreasonable to attribute beliefs found in a report which she signed and coauthored?


Challenge, this is the second time you've attempted to put words in my mouth - you argue like a clam.

A legal argument that it's unconstitutional to prohibit cohabitation among one man and two women is not at all the same as a personal preference for engaging in polygamy. The R's in question certainly seem to be working on a "Gore invented the Internet" level meme out of "RBG loves polygamists, prostitutes and pedophiles".
9.27.2005 1:00pm
Clayton E. Cramer (mail) (www):

Come on Prof V.! You have to acknowledge that the R's are discussing RBG's legal arguments as though they were personal moral and ethical preferences.
More importantly, they are discussing RBG's deranged notions of what the Constitution protects. Arguing that prostitution is in a "zone of privacy" shows a completely ahistorical understanding of the Constitution.

I happen to think that prostitution would probably be better off legal and regulated (on the Nevada model--which is not all libertarian) than to have it criminalized in the way that it is currently. But that doesn't mean that there is a Constitutional right to engage in prostitution, and it is profoundly dishonest to claim that there was ever a time when even a simple majority would have understand that such a right existed.

Prostitution, even when legal (or when police looked the other way) has a sordid history of exploitation and intimidation of dependent or terrified women. You should read some of the history of prostitution in the American West: Chinese girls brought into the country, threatened to sign "contracts" that they couldn't read indenturing them to effectively a lifetime of service; locked in cribs; and when their health had declined enough that they couldn't work anymore, they were locked in their cell, with an overdose of opium available to them--and no food. In theory, they could have called the police to come and rescue them. But theory doesn't go very far in the real world, and that's part of why prostitution has generally been made illegal.

Disease was the major factor in the nationwide ban on prostitution that took place during World War I--and while regulated prostitution, such as Nevada has, seems to do a better job of controlling STDs, there's no question that this constitutes a "rational basis" for the government to regulate it. To assert that prostitution exists in a "zone of privacy" is really an anarchist argument; by the same reasoning, all gun control laws (including the ones prohibiting felons from possessing firearms, prohibiting minors from buying guns, and regulating machine gun sale) would have to go away--and my experience is that there are few libertarians out there.

There are a lot of people commenting here that are upset at the notion that the government has authority to regulate their pet vice. Hence, the need to Constitutionalize what has generally been criminal throughout American history.
9.27.2005 1:18pm
Justin (mail):
Look, denying the right to vote to people for cohabitating with ANYONE is CLEARLY unconstitutional. And, as many people have pointed out, the only evidence that Ginsburg (OR ANYONE ELSE WRITING THE REPORT) wanted to lower the age of consent to 12 requires the type of logic that has been thoroughly debunked on this post and before.

The ONLY remaining, valid-on-its-face argument is the prostitution one. Given that RBG has a co-lead-author, many co-authors, and a client, there is a question whether Ginsburg ever believed that. Given that she's never otherwise stated so, it's doubtful that this is even true. Given that she's previously, many times, and without regard to the precedent of a higher court, affirmed prostitution convictions, is the SINGLE BEST PIECE OF EVIDENCE that she does not currently believe this. Given that the remaining evidence of this is scant, I think we can all agree that this is another one of Eugene's witch/snipe hunts.
9.27.2005 1:25pm
Kazinski:
The only reason for bringing up Ginsburg in the hearings was to point out that all these writings from Ginsburg existed at the time of her confirmation hearing, but because Ginsburg was qualified for the court, they were not made an issue. Ginsburg got 90 some odd votes for confirmation. The Republicans were pointing out that the standard for confirmation should be a two pronged test a) the nominee is qualified and b) the President supports the nominee (which is redundant of course, so really the Senate should just consider a.)

As for the specious charge that Prof. Volokh is ignoring all these devastating arguments destroying his position, well I've been following this thing since the first post on the subject a couple of years back, and I haven't heard anything more devastating than "It's not fair to hold Ginsburg responsible for the contents of a report of which she was one of lead co-authors", and a listing of a few reasons why it may not reflect her views. Those are excuses not arguements.
9.27.2005 1:42pm
Clayton E. Cramer (mail) (www):
Look, denying the right to vote to people for cohabitating with ANYONE is CLEARLY unconstitutional.
Why? I don't see a good argument for denying the vote to polygamists, but I don't see that this is unconstitutional. The 15th Amendment guarantees: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The 19th Amendment guarantees a right to vote regardless of sex. The 24th Amendment guarantees a right to vote regardless of poll taxes. The 26th Amendment guarantees the right of those 18 and over to vote.

There's nothing there about polygamy, or more generally, denying states authority to limit voting based on your sexual partners. Now, you may think that this would be a terribly unfair law, and I would agree with you. But "I think this would be terribly unfair" is not the same as "unconstitutional." You must be a law professor somewhere.
9.27.2005 2:04pm
Thorley Winston (mail) (www):
Given that she's previously, many times, and without regard to the precedent of a higher court, affirmed prostitution convictions, is the SINGLE BEST PIECE OF EVIDENCE that she does not currently believe this.


Really and which cases would those be exactly?
9.27.2005 2:09pm
Justin (mail):
Taking the right away to vote is considered, constitutionally, a punishment. Though there is no "hard right to vote", there is a "soft right to vote" in that one cannot have that right removed for exercising constitutional rights. As nonsexual cohabitation invokes the 9th Amendment (at least 7 votes on that proposition in the previous Court, and was considered obviously correct in 1972), then disenfranchisement based on asserting that right is no more valid than disenfranchising someone based on asserting their right to free association (i.e., taking away the right to vote for members of the ACLU).
9.27.2005 2:29pm
Justin (mail):
Relevant caselaw to my previous point:

Dunn v. Blumstein, 405 U.S. 330 (1972) ("The court held that petitioner failed to show a substantial and compelling state interest for imposing durational residence requirements that impinged upon the unconditional fundamental personal rights to vote and to travel." (Lexis summary))
9.27.2005 2:36pm
Thorley Winston (mail) (www):
Still waiting for examples of the "many times" the RBG has "affirmed prostitution convictions" "without regard to the precedent of a higher court" in her capacity as a judge.
9.27.2005 3:05pm
TC (mail):
Point for the good Professor V.

Some people's responses and defenses -- and outrage -- about holding RBG to the same standard that Judge Roberts is being held to show the hypocrisy of the left.

Judge Roberts' writings -- all of which are much more benign than this (except, *gasp* that maybe he does not believe that the Constitution guarantees the right to kill an unborn baby) -- were used by some on the left to portray him as an extremist.

Here, there are actual writings signed by RBG that advocate -- or at least defend -- some clearly extreme positions. Yet her nomination went smoothly and was a slam-dunk.

And kudos to Professor Volokh for showing that RBG's own signed papers arguably do advocate extreme positions, much more extreme than Judge Roberts' positions. Heck, much more extreme than even Judge Bork ever advocated.
9.27.2005 3:31pm
Clayton E. Cramer (mail) (www):
Though there is no "hard right to vote", there is a "soft right to vote" in that one cannot have that right removed for exercising constitutional rights.
And next you are going to tell me that there is a constitutional right to polygamy--Ginsburg's claim.
9.27.2005 3:35pm
Challenge:
"A legal argument that it's unconstitutional to prohibit cohabitation among one man and two women is not at all the same as a personal preference for engaging in polygamy."

And nobody is alleging she has a "personal preference" for engaging in polygamy. What about this do you not understand? Those criticizing her views are criticising her LEGAL views and arguments she held.
9.27.2005 3:48pm
CTW (mail):
notwithstanding the interesting technical arguments on both sides presented here, it seems to me that the slate authors erred when they chose to go down the rocky path of arguing the inaccuracy of the senators' comments. as suggested by several commenters, the "sin" was that the senators obviously had no intention of raising legal/constitutional questions; their sole purpose was to reinforce the image of "liberal" judges being for evil and against virtue. this is indeed "shameful", especially in the context of hearings for a SC nominee, where one might (naively, of course) hope their presumed appreciation of legal subtleties would make them somewhat reluctant to engage in blatant pandering to the legally illiterate public. (altho after tearful tom's unbelievable performance, one could argue that all hope of decorum was lost.)

and yes, D senators who questioned the state of judge roberts's "heart" also arguably approached the shame threshold.
9.27.2005 3:58pm
Challenge:
Though there is no "hard right to vote", there is a "soft right to vote" in that one cannot have that right removed for exercising constitutional rights.

And next you are going to tell me that there is a constitutional right to polygamy--Ginsburg's claim.

I think he already made that claim when he said that cohabitation "invokes" the Ninth Amendment. He is saying what Ginsburg said, that polygamy (arguably) cannot be prohibited, that engaging is polygamy is a constitutional right.

Both idealogical extremes can be shown to be "out of step" with the American people. Bork, for example, in his criticism of Bolling v. Sharpe, probably sounded pretty extreme to the average joe, nothingstanding his criticism's legal merits. Assuming the correctness of certain decisions (Roe, Lawrence, et al), then Ginsburg's position should not be suprising. A constitutional "right" to polygamy is not that far removed from Lawrence or even Roe. Bork's record was largely distorted, but he did take positions throughout his career and writings which may have been viewed as "extreme" to the American voter. Pointing those out, aslong as accurate and in perspective, is perfectly appropriate. The same SHOULD have gone for Ginsburg. Roberts' memos were fair game, but offered very little to go on.
9.27.2005 4:23pm
Justin (mail):
Though there is no "hard right to vote", there is a "soft right to vote" in that one cannot have that right removed for exercising constitutional rights.

And next you are going to tell me that there is a constitutional right to polygamy--Ginsburg's claim.

Clayton - you're an idiot. If you're going to make such sweeping, uninformed, and rediculous parralels, including an assertion of the conclusion as a basis for the correctness of the conclusion, we have nothing to discuss.

Challenge's equal idiocy makes my broader point for me: I think he already made that claim when he said that cohabitation "invokes" the Ninth Amendment. He is saying what Ginsburg said, that polygamy (arguably) cannot be prohibited, that engaging is polygamy is a constitutional right.

See, WHY DO CONSERVATIVES DO THIS? They take very limited points, that are generally obviously correct (and they rarely argue that they're incorrect). They then take out the nice big slippery slope, go way back down it, and NOT TO ARGUE THE INCORRECTNESS of the first point (which would simply be ignoring the overuse of the slope to state that law creates anarchy), but to GO INTO THE MIND OF THE AUTHOR AND DETERMINE SOMETHING THAT, ON ITS FACE, IS REDICULOUS TO PRESUPPOSE.

NOTHING I've said implies that Ginsberg believes there's a constitutional right to polygamy, and in fact, any reader whose capable of reasoned logic (not you, Challenge), would find that it goes completely against what I've said. Such "logic", attributing an outrageous claim, almost got a classmate of myself kicked out a (required first year) class. It completely astounds me that conservatives lack even the most basic decency to ASK if someone meant to support an outrageous claim before inferring it, even from the MOST REMOTE pieces of evidence.

But then again, if I was a conservative, the only arguments I could win are against straw men, so.....
9.27.2005 4:30pm
Justin (mail):
And Challenge, getting from Lawrence to a right to polygamy is almost impossible. First, you have to get from Lawrence to a right to homosexual marriage, and while I would support a Constitutional ruling as such, Lawrence does not provide that step. THEN, you have to get to a place where there is some generally accepted understanding amongst the educated class here and abroad (yes, yes, I know, elitist bastards, but welcome to the law) that polygamy is socially acceptable, combined with a neccesary critical mass of acceptance of the social acceptability of such amongst the general populations. Conservatives do not believe that modern society can provide "interpretational devices" neccesary to breathe meaning into some of the otherwise useless phrasology of the Constitution. But, since we're talking about the jurisprudence of nonconservatives, ignoring that obvious facet is either dishonest (Cramer) or silly (you).
9.27.2005 4:34pm
Challenge:
Justin, forgive me for assuming Lawrence was attempting to enunciate actual constitutional principles rather than reflect the elites personal policy preferences.

Second, no homosexual marriage equality need exist. We aren't talking about polygamist marriage equality but simply the right of polygamists not to be persecuted for their living arrangement.
9.27.2005 4:41pm
David M. Nieporent (www):
"A legal argument that it's unconstitutional to prohibit cohabitation among one man and two women is not at all the same as a personal preference for engaging in polygamy."

Absolutely. Only nobody accused her of having a "personal preference for engaging in polygamy." Read the post. Even Lithwick didn't make that claim; she decried the
disgraceful use of these hearings to attack Ruth Bader Ginsburg as a champion of legalized prostitution, polygamy, and pederasty is beyond vile. . . .
I think it's clear that the "legalized" is meant to carry over throughout that list; that is, she's a champion of legalized prostitution, legalzied polygamy, and legalized pederasty.
9.27.2005 4:45pm
Challenge:
"Taking the right away to vote is considered, constitutionally, a punishment. Though there is no "hard right to vote", there is a "soft right to vote" in that one cannot have that right removed for exercising constitutional rights. As nonsexual cohabitation invokes the 9th Amendment (at least 7 votes on that proposition in the previous Court, and was considered obviously correct in 1972), then disenfranchisement based on asserting that right is no more valid than disenfranchising someone based on asserting their right to free association (i.e., taking away the right to vote for members of the ACLU)."

You seem to be saying this: One cannot have the right to vote taken away because one is excercising a constitutional right. OK, nothing wrong with this so far. But then you reject that you think there is a constitutional right to polygamy. Yet if there is no such right, what is the point of this post? I'm just an idiot, though, what do I know?

Also, why did you put in the "nonsexual" qualifier when we are talking about polygamy? Was that a typo? Thanks, your "elite" assistance is much appreciated by this "idiot."
9.27.2005 4:53pm
David M. Nieporent (www):
And Challenge, getting from Lawrence to a right to polygamy is almost impossible. First, you have to get from Lawrence to a right to homosexual marriage, and while I would support a Constitutional ruling as such, Lawrence does not provide that step.

Speaking of disingenuous, raise your hand if you think that judges who believe there's a constitutional right to gay sex (Lawrence) and that sex discrimination requires strict scrutiny (VMI, even if they refused to actually admit the test they were applying), will not ultimately rule there's a constitutional right to gay marriage.

I don't see any hands raised.

What's the reasonable argument against gay marriage, given the logic of Lawrence? If even prisoners have a fundamental right to marry, how on earth can such a right be denied to homosexuals, if opposition to homosexuality is not a legitimate basis for lawmaking?


Justin, you seem to be unable to argue any point with actual facts. You just want to denounce people whose views you disapprove of. Your view is that if you yell really loudly that you're right, we won't look at what Ginsburg said.
9.27.2005 4:55pm
Michael B (mail):
"Law is a pragmatic animal, while morality is the domain of philosophy and religion. If you want to moralize, go to church. Don't like someone's behavior--get them excommunicated. But leave your personal moralizing prejudices out the legal arena." Buck Turgidson

A notable piece of moralizing, that.

More to the point though, name a single, lone law of any consequence which is not informed by some level of moral or ethical concern.
9.27.2005 5:24pm
Thorley Winston (mail) (www):
Clayton E. Cramer wrote:

To assert that prostitution exists in a "zone of privacy" is really an anarchist argument; by the same reasoning, all gun control laws (including the ones prohibiting felons from possessing firearms, prohibiting minors from buying guns, and regulating machine gun sale) would have to go away--and my experience is that there are few libertarians out there.


Just out of curiosity, if prostitution could be immune from government regulation or prohibition based on a "zone of privacy" theory, what other sorts of commercial activity would also be immune? For example let's say that there were two women in, just to pick a State at random, California who tried to purchase marijuana for medicinal reasons?

IMO we'd be better off from a civil liberties perspective to have a Court dominated by justices who, even if they were skeptical of the unenumerated "right to privacy," were staunch proponents of the Reserved Powers Doctrine and reigning in the extra-constitutional "substantial effects test" that the SCOTUS has used to turn the Commerce Clause into a de facto police power.

In other words, better to deny the national government these powers in the first place, than to allow them to be usurped by a "progressive" Court which later tries to carve out "zones" of protection.
9.27.2005 5:57pm
Clayton E. Cramer (mail) (www):

Just out of curiosity, if prostitution could be immune from government regulation or prohibition based on a "zone of privacy" theory, what other sorts of commercial activity would also be immune? For example let's say that there were two women in, just to pick a State at random, California who tried to purchase marijuana for medicinal reasons?
This would be a fascinating idea--but so would flying pigs. Liberals will never allow the state to wither away. That's why rather than use a consistent principle of minimal government, they come up with "penumbras and emanations," a "zone of privacy," and other mechanisms that are sufficiently vague that they can strike down laws that they don't like (sodomy, prostitution, statutory rape) and keep laws that they do like (bans on gun ownership, regulation of business, antidiscrimination laws that allow discrimination in the "correct direction" to make up for past wrongs).

I wouldn't be completely happy with judges who consistently applied libertarian positions, both because I don't like some of the results, and because the Constitution is not a libertarian document--but it would be better than having the Supreme Court dominated by the left end of the spectrum. Of course, "judges who consistently applied libertarian positions" is right up there with seeing the job title Swine Flight Surgeon.
9.27.2005 6:15pm
NickM (mail) (www):
Justin, if you were a conservative, the only arguments you could win would be against straw men - but that's for the same reason that as a liberal, the only arguments you can win are against straw men. You lack logic and understanding of your subject. You act like a Brian Leiter wannabe on this blog. Quit it if you expect anyone else to take you seriously.

Your argument that the claim that the documents represent Ginsburg's views has been repeatedly debunked is specious and silly. Contrary to one of your early claims, Ginsburg was not acting as a lawyer for a client. She was a policymaker for an organization, and coauthored and signed a report. I don't know about you, but when I have been a member of groups that issued formal statements, I dissented when I disagreed (in whole or in part), and I have seen plenty of others do the same. There was not even an attempt to limit the proposal as being a majority report by a statement that the views expressed on any issue may not be the views of all members of the group.

Face it. Ginsburg advocated the positions contained in that report. The constitutional theories expressed as justification for those positions are certainly not a popular consensus. In fact, the policy implications from such theories do not enjoy anywhere near majority support in this country.

Challenge is correct on pointing out the gaping hole in your argument, namely that for taking away the right to vote to be an unlawful punishment for exercise of a constitutional right, there must be some underlying constitutional right being exercised. In this case, that right would perforce be polygamous cohabitation from the nature of the statute. You can't eat your cake and have it too.

As to your claim that this is a Ninth Amendment right, you misread Dunn badly.

I think Thorley is still waiting for the cases where she affirmed a prostitution conviction.

If you want to argue that Ginsburg was right, that's no defense of Lithwick. A defense of Lithwick (and this post by Eugene is a criticism of Lithwick) must be to the point that the Senators' remarks did not accurately reflect the views she expressed. All you have done is argued that people are not responsible for what they prepare and sign in their own name. Centuries of English and American law are to the contrary.

Before you finish law school, take a course in logic. You need it badly.

Nick
9.27.2005 6:29pm
Justin (mail):
No **** Nick, the right is to cohabitate with people of the opposite sex, even more than two of them. The 9th amendment, unsurprisingly, protects a right for me to choose my living arrangements pretty much how I feel fit. That doesn't make polygamy legal any more than Lawrence did. The fallacy that Volokh is guilty of is assuming that the problem has to do with polygamy and not with living arrangements.

Nick, I finished in the top 5% of one of the top law schools in the country, but for the ad hominen attack, perhaps you should tie it to some part of your argument.

What Dunn stood for was that a right to vote cannot be arbitrarily taken away in the face of even soft constitutional rights, such as the right to travel or choose one's living arrangements.

David - raise your hands if you think that Roe v Wade was correctly decided and Kelo was correctly decided. Okay, tell me how Roe v. Wade gives way to Kelo.

Challenge, for the 5th time or so in this thread, RBG's reference to the statute's unconstitutionality (which she specifically does not unreccomend) was its breadth, including constitutionally protected right of adults to reasonably choose their own living arrangements. You cannot "outlaw" Ross and Chandler living with Rachel. No, really, you can't. Same goes to Nick, again.

This isn't hard.
9.27.2005 7:54pm
Justin (mail):
Also, David, my principle point is that you have failed to make the case that Ginsburg supports or EVER supported any of these policy positions, that if they were true you'd be able to see other pieces of evidence that confirm your arguments which do not exist (and thus you are confined to use tenuous logic from sections of a long report that Ginsburg may or may not have even read, much less wrote). Furthermore, absent that other evidence, we have no reason to believe that Ginsburg would have provided us with any reason to believe that she OPPOSED those policy reasons, much for the same reason we do not have George W. Bush on record as opposing throwing Puppies from airplaens for sport.
9.27.2005 8:06pm
Challenge:
I am suprised you're brave enough to post after that major ownage. And then you have the nerve to respond with your credentials (top 5% at top law school), as if that vindicates you from criticism of your incoherent and fallacious arguments.

Professor Volokh anticipated your (remaining) argument on polygamy and dealt with it nicely.


It also seems to me that the report can fairly be read as favoring the legalization of polygamy. It is conceivable that it might have been objecting only to restrictions imposed on women who are not themselves purporting to be married to a bigamist, but who are simply living with the bigamist without claiming a marriage. But given that the section was in practice likely to be focused on people who are indeed purporting to be living in plural marriages, it seems that the report was indeed suggesting that the ban on polygamy was illegal. (Note that the section could not be reasonably read, I think, as objecting solely to stripping polygamists of the right to vote: Given that it's permissible to strip someone of the right to vote because of his past crimes, the constitutional objection must be that polygamy can't be criminalized in the first instance. Moreover, the objection is to "encroach[ing] impermissibly upon private relationships," with cites to the right-of-privacy cases, not to encroaching impermissibly upon voting rights.)


Now, one can weasel out of this position by saying she was not referring to polygamists but instead only those non-polyamists who might fall victim to the vague statute. If that is the reading she intended, then Ginsburg and her coauthors did an exceedingly poor job in conveying that point. I do not think your reading of her position is the best reading, but it's at least semantically plausible. However, that is not the point of this thread, Justin. Lithwick smeared certain senators for stating that Ginbsurg once supported the lowering of the age of consent, legalization of polygamy, and prostitution, sometimes using constitutional arguments to buttress those recommendations. It appears after several excellent posts by Professor Volokh, and about 80 comments on this thread alone, that nobody has been able to refute those conclusions. You have offered an alternative reading for one charge (one anticipated by Volokh in his initial posting), but it is by no means the only, let alone the best, reasonable conclusion. Lithwick's characterization of the accusations as vile "distortions" is demonstrably false.
9.27.2005 10:30pm
Yankee_Mark:
It's really hard for me to see 'the point' being granted to Professor V when serious questions & counterarguments have been presented but never even addressed.

I think he'd be hard pressed to do so, but even so ... only a sycophant of the first order could grant him the better of the argument when he hasn't even argued aside from making the same flat assertion on multiple occasions.

And the charge/claim of hypocracy is even more specious since Roberts is indeed being extended the same courtesy by at least this one person claiming RBG has been smeared.
9.28.2005 1:36am
Buck Turgidson (mail):
More to the point though, name a single, lone law of any consequence which is not informed by some level of moral or ethical concern.

Just so that we are clear on the subject, morality and ethics are not the same thing. And the issue is not just morality but moral absolutism. For all I care, Jesus was a gay polygamist--see how any Christian church can handle that admission! Now consider what implication this would have for the laws. [Hint: none.]

Much of the common law is based on the Code of Hammurabi, if not earlier semitic codices from Mesopotamia. Sure, there have been many morally supported changes, but they are beside the point--are you suggesting that our legal system is based on pre-Zoroastrian Mesopotamian moral code?

Now consider the moralizing idiots who want to ban public breastfeeding. Their moral code tells them that even this minor exposure is a bad thing, but our ethics tells us that it is not. Generally, ethics has more to do with Natural Rights and Natural Law than with religious morality. Hobbs might have looked at Natural Law as something related to his religion, although I would argue that his construct was independent of any religion even where it was coached into religious language.

From Natural Law, the next logical step is to Social Contract. This is something libertarians generally can embrace fairly easily. Under the Social Contract, we are ethically obligated to persue our own liberty only with a minimal expense with respect to other people's similar rights. Essentially, the Social Contract is the opposite of Social Darwinism.

Now, back to the origin of our legal code. While you may assume that your laws are based on religious morality, the opposite is in fact the case. The Bible as a legal document is based on long legal tradition from the region that was independent of the religion of any of the community members. Surely, some regional variations were based on local religious customs, but the bulk of the codex came from social norms, not religious ones. It is only with Augustine that this was pretended to have been reversed--now the laws were based on the Bible rather than the other way around. Still, the fundamental legal code predates this moralizing bullshit by at least a couple of thousands of years.

Now, the modern additions, such as essentially Victorial criminalization of prostitution, purely Christian bans on homosexuality, etc., are not based on the legal tradition. Part of the beauty of the US Constitution is that it is NOT a religious document and it avoids moralizing preaching that some conservatives have been trying to ascribe to it.

As for laws that are not based on religious morality, consider the drinking age, which is, fundamentally, a pragmatic law. Some might make an argument that its origins are in the Prohibition--or, at least, in the same roots as the Prohibition. But the only reason it exists is to protect the society from drinking of inexperienced idiots, basically arising from the Social Contract. Personally, I think that this is bad law because it does not accomplish what it sets out to do, and, in fact, is likely counterproductive. But my opinion on the quality of the law is not what you asked for. You asked for an example of consequential law that is not based on morality.
9.28.2005 1:42am
Challenge:
"Just so that we are clear on the subject, morality and ethics are not the same thing."

Wrong, they're synonyms. Ethics has more of a secular connotation because of its use in describing codes of conduct, such as "medical ethics" or "legal ethics" but they are nevertheless nearly perfect synonyms.
9.28.2005 5:12am
Virginia:
Actually, the only difference between ethics and morality is that the former is derived from the Greek word ethos, meaning "custom," and the latter is derived from the Latin word mos, meaning "custom." Both words mean the same thing.
9.28.2005 11:59am
Michael B (mail):
"But my opinion on the quality of the law is not what you asked for. You asked for an example of consequential law that is not based on morality."

Yes, specifically I asked for a single, lone law of any consequence which is not informed by some level of moral or ethical concern. What you offered instead was a justification for your views, adding some general historical and philosophical references or glosses to help bolster that justification. But that misses the point.
9.28.2005 3:55pm
NickM (mail) (www):
Justin, saying the Ninth Amendment protects something doesn't make it so (unless you're a judge writing a majority opinion). Dunn was NOT a Ninth Amendment case - the opinion acknowledged that prior precedent (some of it preceding the Civil War) established the rights to vote and to travel as fundamental rights, and held that strict scrutiny applied.

In any case, your argument there is a red herring. The point Eugene raised, and upon which any criticism of him must properly be based, is that the Senators involved did not distort the views of Justice Ginsburg, as expressed in a report she coauthored.

You now come up with an utterly absurd "defense" - that Justice Ginsburg may not even have read the report she signed. If that were true, it would reflect very poorly upon her. Without some clear statement from her (or another member of the reporting group) that she was unaware of its recommendations, anyone should be loath to besmirch her integrity and character by suggesting that she would let her name be used in such a fashion.

Nick
9.28.2005 6:26pm