pageok
pageok
pageok
The Fifth Circuit Ban on Sex Devices:

The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power--and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.

Clayton E. Cramer (mail) (www):
It will be quite interesting to watch the liberal judges of the Supreme Court try to justify why dildoes are constitutionally protected (especially if they have the nerve to base that on the false history of Lawrence) while a handgun ban is not a problem. One of these has an explicit protection in the Bill of Rights; one of them is, at best, protected as a reserved right.

The police powers of the states were only slightly restricted by the Constitution and the Bill of Rights (which was primarily targeted on limiting federal power). To the extent that they are restricted by the Fourteenth Amendment, the state of American law with respect to dildoes in 1868 should define what rights were protected. I don't know of any laws regulating such devices in 1868, and if there were no such laws on the books, or they were not generally regulated, there might be some argument on those grounds.
2.13.2008 3:10pm
Oren:
One of these has an explicit protection in the Bill of Rights; one of them is, at best, protected as a reserved right.
You may not construe enumerated rights to disparage unenumerated rights (cf Amendment #9).
2.13.2008 3:14pm
Archit (www):
How about stopping with the facile guns versus dildoes comparison? No one is suggesting that guns are less privileged than dildoes. The gun ban passes rational basis scrutiny, at the very least. It is plausible that banning guns will reduce violence. The 5th Circuit can't find a similar connection between a dildo ban and a legitimate state purpose. Protecting public morality isn't a legitimate reason after Lawrence. And the Court can't see how this ban protects unwilling adults or children from "exposure to sexual devices and their advertisements."
2.13.2008 3:34pm
Clayton E. Cramer (mail) (www):

You may not construe enumerated rights to disparage unenumerated rights (cf Amendment #9).
Madison was very clear that this was to prevent unenumerated rights from being taken by the federal government. See this discussion. (Although the footnote is wrong; the quote is from 1 Annals 456, not 439.) Just so that there is no confusion, note that the Tenth Amendment clearly grants all powers not reserved to the federal government to the States: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This includes the police powers, unless explicitly protected by state constitutions, or limited by later amendments.

To find a constitutional right to a dildo, it is going to have to be found under due process, or equal protection.
2.13.2008 3:42pm
Randy R. (mail):
Finally, now heteros can thank gays for allowing them to have a normal sex life down there in Texas!

I'm sure some people will declare it the end of civilization, of course, but let's be honest -- you get more use out of a dildo than a gun!
2.13.2008 3:45pm
Randy R. (mail):
Finally, now heteros can thank gays for allowing them to have a normal sex life down there in Texas!

I'm sure some people will declare it the end of civilization, of course, but let's be honest -- you get more use out of a dildo than a gun!
2.13.2008 3:45pm
Clayton E. Cramer (mail) (www):

The 5th Circuit can't find a similar connection between a dildo ban and a legitimate state purpose.
I might be inclined to agree with you--but striking down laws based on their supposed irrationality is simply unelected elites imposing their view on the representatives of the people.
2.13.2008 3:46pm
Clayton E. Cramer (mail) (www):

Finally, now heteros can thank gays for allowing them to have a normal sex life down there in Texas!

I'm sure some people will declare it the end of civilization, of course, but let's be honest -- you get more use out of a dildo than a gun!
I suppose it depends how much help you need from devices like that. End of civilization? No. But unelected elites arbitrarily deciding that elected representatives are irrational in passing laws is likely to lead to some unpleasant results. You may not see it right now, because the unelected elites share your values. You might change your views once the unelected elites decide that there's no rational basis for repealing sodomy laws.
2.13.2008 3:48pm
Aultimer:

CC write:
To the extent that [police powers] are restricted by the Fourteenth Amendment, the state of American law with respect to dildoes in 1868 should define what rights were protected.


Unless the meaning of "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." in 1791 included reservation to the "people" of some personal rights, like intimate relations.
2.13.2008 3:53pm
Roger Schlafly (www):
Protecting public morality isn't a legitimate reason after Lawrence.
And making people defenseless is a legitimate reason? Why is it plausible that banning guns is somehow more beneficial than banning dildoes?
2.13.2008 3:54pm
Brasher:
Would those who, like Prof. Kopel, think this case was correctly decided explain why the dissent is wrong to see a difference between a law that prohibits the sale and marketing of a dildo and a law (more akin to the law struck down in Lawrence) that prohibits the use of a dildo? I thought this distinction made a lot of sense.
2.13.2008 3:55pm
Randy R. (mail):
Apologies for the double post!

Clayton: "But unelected elites arbitrarily deciding that elected representatives are irrational in passing laws is likely to lead to some unpleasant results. You may not see it right now, because the unelected elites share your values. You might change your views once the unelected elites decide that there's no rational basis for repealing sodomy laws."

Actually, we just went through a lengthy debate on whether courts can or should strike down laws passed by the legislature as unconstitutional. I'm firmly in the camp that the rights of minorities need to be protected from the actions of the majorities, especially when the rights of the minorities are abridged by laws.

the question isn't whether the 'unelected elites' decide things I like, but rather what legislatures decide. The legislature didn't repeal the sodomy laws, and if they did, there would be no judicial review of it. No judge can decide that it's previous decision doesn't meet the 'rational basis' test; rather, that is only for statutes. As an attorney, you should know the difference.
2.13.2008 4:04pm
Clayton E. Cramer (mail) (www):

Unless the meaning of "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." in 1791 included reservation to the "people" of some personal rights, like intimate relations.
So, where are the court cases after 1791 where state laws affecting intimate relations were challenged and lost? Remember that state laws prohibiting oral and anal sex remain on the books until 1961. The most that you can point to is the revision of state laws in the early Republic so that sodomy is no longer capital.
2.13.2008 4:08pm
Clayton E. Cramer (mail) (www):

the question isn't whether the 'unelected elites' decide things I like, but rather what legislatures decide. The legislature didn't repeal the sodomy laws, and if they did, there would be no judicial review of it. No judge can decide that it's previous decision doesn't meet the 'rational basis' test; rather, that is only for statutes. As an attorney, you should know the difference.
No, I was referring to a future Supreme Court that decides that state legislatures that repealed sodomy laws (such as California in 1975) had no rational basis for that act. Or, for that matter, states that passed civil union laws for same-sex couples had no rational basis for that act.

And no, I'm not an attorney.
2.13.2008 4:10pm
Clayton E. Cramer (mail) (www):

The legislature didn't repeal the sodomy laws, and if they did, there would be no judicial review of it.
Actually, most sodomy laws were repealed by state legislatures, starting with Illinois in 1961. California did likewise in 1975. If the people aren't rational in passing of laws, why are they rational when they repeal them? Just because the Court agrees with your views of what constitutes rational?
2.13.2008 4:12pm
Archit (www):

[S]triking down laws based on their supposed irrationality is simply unelected elites imposing their view on the representatives of the people.

What process is due is a hard question that judges get to decide. They decide if it gives the process required for the deprivation of life, liberty or property. Requiring that any challenged law further a legitimate state interest doesn't seem unreasonable. What implementation of the 14th Amendment would you suggest instead?
2.13.2008 4:13pm
Clayton E. Cramer (mail) (www):

Why is it plausible that banning guns is somehow more beneficial than banning dildoes?
It depends on what you think is important, pretty obviously. I don't see dildo laws as being of any value whatsoever. Unlike liberals, I don't see what what consenting adults do in private as being a good use of public resources, and it doesn't matter if it is sodomy or employment.
2.13.2008 4:14pm
Dave Hardy (mail) (www):
I've got somewhere in my files a Federal Register notice from late in the Carter Admin., 79 or so, some agency (CPSC? FDA? I forget) proposed a federal safety standard for dildos. It was hilarious to read. Safety concerns included friction burns from overuse and electrocution if 110 v. current was used. (I guess they saw that Woody Allen movie). Never did go to a final rule. Reading the comments must have been interesting.
2.13.2008 4:21pm
procrastinating clerk (mail):
Maybe people should just argue that having an assembled gun without a safety lock during sex is critical to their sexual fulfillment.
2.13.2008 4:24pm
Clayton E. Cramer (mail) (www):

Maybe people should just argue that having an assembled gun without a safety lock during sex is critical to their sexual fulfillment.
Yes, hoplosexuals will argue that Lawrence guarantees them a right to carry handguns in public restrooms.
2.13.2008 4:26pm
Clayton E. Cramer (mail) (www):

Safety concerns included friction burns from overuse and electrocution if 110 v. current was used.
With enough time and cleverness, I'm sure that someone can find a way to come up with a "rational basis" method of justifying government regulation.
2.13.2008 4:28pm
Oren:
Clayton: In your view can a state legislature, consistent with the 14A, impose any restriction on fundamental liberty interests so long as they do not run afoul of the explicit rights enumerated in Amends 1-8?
2.13.2008 4:35pm
r78:
I'd like to know what Clayton Cramer things about all of this.
2.13.2008 4:37pm
Anderson (mail):
Brasher: why the dissent is wrong to see a difference between a law that prohibits the sale and marketing of a dildo and a law (more akin to the law struck down in Lawrence) that prohibits the use of a dildo? I thought this distinction made a lot of sense.

My favorite analogy is a prohibition on selling or distributing Bibles. You can own a Bible, sure! But you can't buy one, you can't sell one, you can't barter for one.

Now, would that ban be a hindrance on Bible ownership?
2.13.2008 4:58pm
Cornellian (mail):
To find a constitutional right to a dildo, it is going to have to be found under due process, or equal protection.

A dildo is property - that's explicitly protected.
2.13.2008 5:05pm
Cornellian (mail):
"All Rise"

(Abovethelaw.com earning its pay today with this title for its post on the great dildo debate)
2.13.2008 5:06pm
Cornellian (mail):
It will be quite interesting to watch the liberal judges of the Supreme Court try to justify why dildoes are constitutionally protected

Or, conversely, to watch the conservative judges (esp Scalia) try to justify why property rights evaporate in the vicinity of anything to do with sex.
2.13.2008 5:07pm
Clayton E. Cramer (mail) (www):

Clayton: In your view can a state legislature, consistent with the 14A, impose any restriction on fundamental liberty interests so long as they do not run afoul of the explicit rights enumerated in Amends 1-8?
1. Define "fundamental liberty interests." The ACLU has a very long list of items that are fundamental liberties, including the right of teenagers to have sex with adults.

2. The Fourteenth Amendment contains three potentially powerful limits on state power.

a. The privileges and immunities clause was recognized by both proponents and opponents as imposing the protections of the first eight amendments on the states. It has therefore been largely ignored by the courts.

b. "nor shall any State deprive any person of life, liberty, or property, without due process of law" is also powerful, because it says that before the state can take away your life, liberty, or property, there are procedures that have to be followed.

"Life" is pretty clear.

"Property" only gets complex because people claim property interests in things that might not have been recognized as property in 1868.

"Liberty" is again something that needs reference to 1868 norms. Look at what was generally lawful in 1868; use that as the standard. Most states had pretty strict laws on the books about sexual morality, although they were generally only enforced if you made a nuisance of yourself. In many other areas, state laws were pretty laissez-faire in 1868.

I find the legal mumbo-jumbo used to justify substantive due process not very convincing. You can read particular decisions and say, "Yup! The Scottsboro Boys had only the pretense of due process because of the lack of effective counsel." But every time I read particular cases, I find myself saying, "They were just making this up as they went along."

c. The "equal protection of the laws" clause is also quite powerful, but unless you think that Congress and the ratifying states for the 14th Amendment were making a revolutionary change, there is simply no basis for the claim that every time a state law distinguishes two classes that it is violating this. State laws in 1868, and federal laws, made distinctions. They discriminated against murderers, against bigamists, against homosexuals, against the mentally ill, because they passed laws that treated each of those groups differently. Why? Because the legislatures had decided that this classification had some legitimate basis to it.

I agree that there are equal protection violations, and that the courts should not simply ignore improper classifications. But you better have a pretty strong argument for why that classification is improper. There's an 1879 9th Circuit decision I read a few years back where they struck down San Francisco's law requiring all men's hair entering the jail to be cut within one inch of the scalp. This was justified as a public health measure (lice prevention). The Court of Appeals correctly pointed out that the rule didn't apply to women, so it clearly wasn't for public health reasons. It was because of the queue that Chinese men wore for religious reasons. This was an attempt to force Chinese men to pay the fine, rather than go to jail, for violating the Cubic Air Ordinance.

In general, if the evidence for unequal protection is unclear, the courts should give the benefit of the doubt to the duly corrupted representatives of the people. This leads to some very unfortunate situations. California courts apply equal protection with respect to concealed carry permits in a manner that is ludicrous, by requiring that a challenge to a permit denial demonstrate exactly the same conditions as a person issued a permit. I am not happy about this abuse of discretion. But I would be less happy about destroying the original intent of the equal protection clause.
2.13.2008 5:09pm
Clayton E. Cramer (mail) (www):

Or, conversely, to watch the conservative judges (esp Scalia) try to justify why property rights evaporate in the vicinity of anything to do with sex.
Since liberals don't believe in property rights anyway (see Kelo), this won't be any great struggle. You might want to go and read Lochner. Even the majority agrees that there are a lot of property rights that can be regulated in the interest of public safety and morals.
2.13.2008 5:10pm
Clayton E. Cramer (mail) (www):


To find a constitutional right to a dildo, it is going to have to be found under due process, or equal protection.


A dildo is property - that's explicitly protected.
A gun is property, and even has its own explicit protection under the Second Amendment--and yet the courts routinely agree that guns can be classified as nuisances, and confiscated without compensation, if they are prohibited.

Don't they teach this in law school?
2.13.2008 5:14pm
Cactus Jack:

and yet the courts routinely agree that guns can be classified as nuisances, and confiscated without compensation, if they are prohibited.


And I agree that a wave of dildo inflicted violence strikes a city or a state, it has a rational basis for requiring dildo locks, dildo registration, prohibiting sales at dildo conventions and, if appropriate, confiscating dildos.
2.13.2008 5:44pm
CJColucci:
Remember that state laws prohibiting oral and anal sex remain on the books until 1961.

In New York -- yes, New York -- the staute was on the books until the early 1980's. It was directed only at unmarried couples and, as drafted, outlawed anal intercourse, fellatio, and cunnilingus, the most common oral/anal forms of sexual behavior, but did not outlaw the rather less common (and, in that sense, "kinkier") practices of analingus and vulva-to-vulva stimulation. I was never able to determine whether the draftsmen were unaware that these practices existed, and left them out because of ignorance, or had very narrow and specific interests that they wanted to protect by artful drafting.
2.13.2008 5:49pm
Clayton E. Cramer (mail) (www):


and yet the courts routinely agree that guns can be classified as nuisances, and confiscated without compensation, if they are prohibited.


And I agree that a wave of dildo inflicted violence strikes a city or a state, it has a rational basis for requiring dildo locks, dildo registration, prohibiting sales at dildo conventions and, if appropriate, confiscating dildos.
My point was that being property alone doesn't protect dildos, anymore than it protects guns.

By the way, do you know why California law specifically prohibits rape by instrumentality? A dildo rape of the actress of Carrie Snodgrass. I rather doubt that this was the only crime that caused passage of the law.
2.13.2008 5:51pm
Cornellian (mail):
I find the legal mumbo-jumbo used to justify substantive due process not very convincing.

The reason for that is stated in your own post - courts made an early mistake in ignoring the P&I clause, and so they compensate today by basing things on SDP, which is largely a code phrase for privileges and immunities. It's not textual, but it's arguably closer to the original understanding of a P&I clause with teeth than the alternative of dropping SDP while still ignoring P&I.

I note that Justice Thomas, in rejecting the idea of SDP, has also stated that he's willing to revisit the P&I jurisprudence - he recognizes the problem I describe above.
2.13.2008 5:52pm
Arkady:
Shorter Clayton Cramer:


Guns in, dildoes out
2.13.2008 5:52pm
Clayton E. Cramer (mail) (www):

It was directed only at unmarried couples and, as drafted, outlawed anal intercourse, fellatio, and cunnilingus, the most common oral/anal forms of sexual behavior, but did not outlaw the rather less common (and, in that sense, "kinkier") practices of analingus and vulva-to-vulva stimulation. I was never able to determine whether the draftsmen were unaware that these practices existed, and left them out because of ignorance, or had very narrow and specific interests that they wanted to protect by artful drafting.
You may find this history of Colonial sodomy laws enlightening. I'm leaning towards the "we didn't think of it" since most of these laws have their origins with Henry VIII.
2.13.2008 5:53pm
Clayton E. Cramer (mail) (www):

Shorter Clayton Cramer:


Guns in, dildoes out
And wrong. It is because they are dildoes. It is because the police power of the states with respect to sexuality wasn't questioned in 1868. By the way, by the same reasoning, open carry of guns would be protected by the 14th Amendment, but concealed carry, probably not. By 1868, while open carry was lawful everywhere, concealed carry was no longer generally considered a protected right.
2.13.2008 5:57pm
Arkady:
Jeebus, Clayton...ah, hell, never mind.
2.13.2008 6:03pm
John Herbison (mail):
Is anyone surprised at how quickly a discussion of phalluses turned to guns?

Dildoes don't stimulate genitalia; people stimulate genitalia.
2.13.2008 6:13pm
Clayton E. Cramer (mail) (www):

Is anyone surprised at how quickly a discussion of phalluses turned to guns?
It's an example of two items that people want to ban. One of them just has the disadvantage to be explicitly protected in the Constitution.
2.13.2008 6:21pm
emsl (mail):
If we can put the gun analogy down for a minute, does anyone want to seriously defend this law even on a rational basis test? Put simply, this is yet another incredibly stupid law whose justification is a silly facade. In what conceivable way does this law protect minors? How does this protect morality? As a lawyer, I am generally willing to debate standards until the cows come home, but it is hard to do so when the underlying law is so obviously pointless.
2.13.2008 6:23pm
Cornellian (mail):
If we can put the gun analogy down for a minute, does anyone want to seriously defend this law even on a rational basis test? Put simply, this is yet another incredibly stupid law whose justification is a silly facade. In what conceivable way does this law protect minors?

I suspect many if not most of the politicians who vote for these things recognize the law is silly, pointless and a total waste of judicial and law enforcement resources, but vote for it anyway because they're afraid that otherwise people will run election ads against them claiming they voted to support perverts.
2.13.2008 6:31pm
KeithK (mail):
I would argue that the States have a right to legislate anything that is allowed under their own state Constitutions unless it falls afoul of a specific provision of the federal constitution. The exception would be a right that has been long acknowledged under common law prior to 1791 and can thus be reasonably counted as an unenumerated right under the 9th amendment.

Bans on sodomy or dildos are stupid. But nothing in the federal Constitution prohibits them.
2.13.2008 6:48pm
Joel:
This is all (well, not all, but largely) amusing, but I want to digress. Why is there all of this discussion of guns and gun rights, dildos, and other assorted legal and quasi-legal issues, but no discussion of the FISA bills being debated right now in Congress. On this nominally libertarian legal site, I would expect that wiretaps, the Fourth Amendment, retroactive immunity for (allegedly) illegal searches, etc., would be all over the place. Instead, there is silence.

A couple of weeks ago, when these subjects were last being debated in the Senate, a post on DailyKos asked "Where are the libertarians?" The argument of that post was that libertarians should be up in arms about the Bush administration's regular violations of the Fourth Amendment, FISA, and other laws and constitutional provisions that are intended to protect our civil rights.

To what can we attribute this silence? Do the writers and readers of this site not really care about these issues? Do they think this fight is a loser and are simply focusing their attention on other subjects? Could it be that the people who post on this site, and the site's readers, are not really principled libertarians, but are Bush loyalists who simply put on libertarian airs?

I'm not trying to cause trouble here, and I'm not simply trying to tweak Conspiracy writers/readers. I an genuinely puzzled by this, and I want to provoke discussion because I genuinely enjoy some of the discussion that happens at this site.
2.13.2008 6:48pm
Cornellian (mail):
On this nominally libertarian legal site, I would expect that wiretaps, the Fourth Amendment, retroactive immunity for (allegedly) illegal searches, etc., would be all over the place. Instead, there is silence.

Have you been here long? There are plenty of posts on this.
2.13.2008 7:01pm
Cornellian (mail):
I would argue that the States have a right to legislate anything that is allowed under their own state Constitutions unless it falls afoul of a specific provision of the federal constitution. The exception would be a right that has been long acknowledged under common law prior to 1791 and can thus be reasonably counted as an unenumerated right under the 9th amendment.

What is your basis for thinking that the Founders intended to take the common law, which they knew had evolved gradually over the previous 700 years, and freeze it as it existed in 1791?
2.13.2008 7:03pm
Clayton E. Cramer (mail) (www):


If we can put the gun analogy down for a minute, does anyone want to seriously defend this law even on a rational basis test? Put simply, this is yet another incredibly stupid law whose justification is a silly facade. In what conceivable way does this law protect minors?


I suspect many if not most of the politicians who vote for these things recognize the law is silly, pointless and a total waste of judicial and law enforcement resources, but vote for it anyway because they're afraid that otherwise people will run election ads against them claiming they voted to support perverts.
I suspect that in many parts of the U.S., the legislators who pass such bills actually see them as serving a useful function of setting standards for behavior. (Certainly, there are many legislators in Idaho who do.) This doesn't mean that these laws are much enforced, or even much enforceable. But to borrow the language of liberals, "we should never underestimate the educative effects of law."

Laws sometimes are a way of expressing societal disapproval of particular behaviors. It is perfectly legitimate to consider this as wasteful or silly--but not if you also support laws that seek to discourage "homophobia" by making it illegal to discriminate.
2.13.2008 7:48pm
Clayton E. Cramer (mail) (www):

What is your basis for thinking that the Founders intended to take the common law, which they knew had evolved gradually over the previous 700 years, and freeze it as it existed in 1791?
Here's one possible indicator: Amendment VII:


In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
That doesn't freeze it, but it does give the state of the common law in 1791 a rather privileged position.
2.13.2008 7:49pm
Cornellian (mail):
I'm suspicious of laws that are enacted purely for some symbolic effect, without any intention that they be enforced.
2.13.2008 7:50pm
Clayton E. Cramer (mail) (www):

The argument of that post was that libertarians should be up in arms about the Bush administration's regular violations of the Fourth Amendment, FISA, and other laws and constitutional provisions that are intended to protect our civil rights.

To what can we attribute this silence?
Everyone that cares about that has already been arrested, and are being held incommunicado, right next to the thousands of librarians who refused to turn over the lists of books to the FBI, and the millions of Muslims arrested on 9/12.

As Cornellian has pointed out, there has been considerable discussion here in the past of these matters. Professor Kerr has done an especially good job of showing that the ACLU has engaged in massive deception in its advertising campaigns about some of these matters.
2.13.2008 7:52pm
Clayton E. Cramer (mail) (www):

What is your basis for thinking that the Founders intended to take the common law, which they knew had evolved gradually over the previous 700 years, and freeze it as it existed in 1791?
What is your basis for characterizing the Constitution as freezing the common law?

The legislatures are free to pass all sorts of laws, smart, foolish, even tyrannical, as long as they conform to the federal and state constitutions. I'm not happy with state legislatures passing civil union laws--but that's the right of the legislature to do that. I'll ask you again: Would you consider it appropriate for the Supreme Court to tell a state legislature that there was a Constitutional right to live in a community where homosexuality was unlawful, and void the legislature's repeal of a sodomy law?
2.13.2008 7:56pm
Clayton E. Cramer (mail) (www):

I'm suspicious of laws that are enacted purely for some symbolic effect, without any intention that they be enforced.
Which is more dangerous? Stupid symbols, or laws that are passed with the intention to enforce them to suppress freedom of conscience?
2.13.2008 7:57pm
Oren:
I would argue that the States have a right to legislate anything that is allowed under their own state Constitutions unless it falls afoul of a specific provision of the federal constitution.
The ninth amendment is a specific provision of the Constitution even if it protects an unspecified 'reserve' of rights.

From Griswold v. CT
Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e. g., Bolling v. Sharpe, 347 U.S. 497 ; Aptheker v. Secretary of State, 378 U.S. 500 ; Kent v. Dulles, 357 U.S. 116 ; Cantwell v. Connecticut, 310 U.S. 296 ; NAACP v. Alabama, 357 U.S. 449 ; Gideon v. Wainwright, 372 U.S. 335 ; New York Times Co. v. Sullivan, 376 U.S. 254 . The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. (my emph)
You can read the entire opinion for more historical background but there absolutely no doubt that the Founders intended that the Constitution would protect a wide range of rights, enumerated and otherwise. The 14A plainly guarantees that the states may not violate those rights.
2.13.2008 8:11pm
Oren:
Would you consider it appropriate for the Supreme Court to tell a state legislature that there was a Constitutional right to live in a community where homosexuality was unlawful, and void the legislature's repeal of a sodomy law?
Your concept of a 'fundamental liberty interest' is fascinating insofar as a person can have such an interest in being forbidden from doing something. Can you cite any other example where a man has the right to have something forbidden to him?
2.13.2008 8:26pm
Clayton E. Cramer (mail) (www):

Your concept of a 'fundamental liberty interest' is fascinating insofar as a person can have such an interest in being forbidden from doing something. Can you cite any other example where a man has the right to have something forbidden to him?
I've seen gun control advocates argue that gun control laws are a human right, because people have a right to be safe. I'm sure that some future Supreme Court wouldn't call it a "fundamental liberty interest" but it would be essentially a communitarian right to set standards of acceptable behavior so that "everyone in our community can be sure that they won't have to deal with these destructive behaviors."

One of the areas that liberals don't seem to consider is, "What happens if people with liberal enthusiasm for power get in charge with the opposite value set?" A few years back, I think it was Scalia (who is pro-life) asked, during an abortion case, if the government had the authority to prohibit abortion, might it not have the authority in some future overpopulated world to require it? Consider all the arguments that liberals make for why we can't trust legislatures to pass laws about sexual morality. Now flip that around--imagine a Supreme Court in A Handmaid's Tale kind of future, where those uppity Californians decide to make non-reproductive sex lawful--and the Court decides that their act doing so had no rational basis.
2.13.2008 8:38pm
Clayton E. Cramer (mail) (www):

You can read the entire opinion for more historical background but there absolutely no doubt that the Founders intended that the Constitution would protect a wide range of rights, enumerated and otherwise. The 14A plainly guarantees that the states may not violate those rights.
Here's your problem:

1. The various proponents of the 14th Amendment clearly stated it would extend the protections of the first eight amendments to the states. They knew that the 9th and 10th Amendments, because they defined the relative power of the federal and state governments, were out of the picture.

2. The Supreme Court has refused to go along with full incorporation of Amendments I through VIII.

Griswold is an embarrassingly badly written decision. What it came down to was the Court found the Connecticut law stupid, and overruled it. They had no basis in the historical record for the claim that the Ninth Amendment limited state power. Indeed, Madison's efforts to get any restrictions applied to the states went absolutely nowhere.
2.13.2008 8:42pm
Joel:
On this nominally libertarian legal site, I would expect that wiretaps, the Fourth Amendment, retroactive immunity for (allegedly) illegal searches, etc., would be all over the place. Instead, there is silence.

Have you been here long? There are plenty of posts on this.


The debate in the Senate took place last week and earlier this week, and the debate in the House is occurring today. I've looked at the archives, and there are no discussions of this topic in the last two weeks. Meanwhile, the President is making statements (many of which are false) about the state of the law, what will happen if proposed revisions, including retroactive immunity, are not passed, congressmen are arguing both sides, Presidential candidates are voting, and there is no discussion here.

The lack of discussion is surprising in part because of the discussion in the past on this topic and on other topics that might be unpleasant to loyal Bushies, such as the US Attorney firings and torture issues. Yet over the last week, the subject of government wiretapping of our telephone calls, and the intense, current debate over what that wiretapping can/should look like, is ignored. Why?
2.13.2008 8:52pm
Clayton E. Cramer (mail) (www):

The lack of discussion is surprising in part because of the discussion in the past on this topic and on other topics that might be unpleasant to loyal Bushies, such as the US Attorney firings and torture issues. Yet over the last week, the subject of government wiretapping of our telephone calls, and the intense, current debate over what that wiretapping can/should look like, is ignored. Why?
There's a war on?

While I don't particularly like the idea of the government tapping my phone, I also recognize that in the balance between stopping terrorists and the prospect that my phone calls might cause someone at FBI to fall asleep from boredom, I'll take my chances with the wiretapping. I had a rather different view before 9/11--but unlike a lot of other people, I have not forgotten what happened that day.
2.13.2008 9:00pm
Oren:
The first eight amendment have all been incorporated save for two exceptions (and Heller will likely cure one of those). To characterize the Court's unwillingness to demand civil trials by juries as meaningful in the context of fundamental liberty interests is, at best, unconvincing.

The various proponents of the 14th Amendment clearly stated it would extend the protections of the first eight amendments to the states.
Citation please? My understanding was that the 14A was intended to protect all Constitutional rights from encroachment by the states.
2.13.2008 9:00pm
Oren:
Joel, we argued FISA to death a long long time ago. Just because it came up again in the news does not mean that anything has fundamentally changed between now and then.
2.13.2008 9:01pm
Cactus Jack:

My point was that being property alone doesn't protect dildos, anymore than it protects guns.


And if you'll read carefully, you'll note that I agree. However, I'd take the position that police power restrictions on personal property should have at least a reasonable basis and be at least reasonable in scope and my point of reference for determining reasonbleness doesn't end in the late 19th centry. I'm well apprised of your contrary position.


By the way, do you know why California law specifically prohibits rape by instrumentality? A dildo rape of the actress of Carrie Snodgrass. I rather doubt that this was the only crime that caused passage of the law.


Strikes me as an appropriate response.
2.13.2008 9:14pm
Ted10 (mail):
This calls for a 'million women march' in support of private ownership!
2.13.2008 10:35pm
Hoosier:
Oren--I have to agree with Clayton on this one: 'Griswold' was just a horrid decision. Harlan had it right in his dissent. I couldn't believe it when I finaly read the opionion and dissent. (I'm not a lawyer, so never looked at it in law school.) The result was one that I would have supported had the CT legislature come to its senses. But what a pathetic excuse for constitutional interpretation.
2.13.2008 10:36pm
Anderson (mail):
I would argue that the States have a right to legislate anything that is allowed under their own state Constitutions unless it falls afoul of a specific provision of the federal constitution.

So the State could order that everyone wear red and nothing but red?

"Limited government" is not just "limited *federal* government so the States can do as they damn please." Limited government means that there are some areas in which the government simply cannot obtrude.

It mistakes the fundamental idea of America to think that every right not expressly granted is contingent upon the government's whim. That kind of thinking is exactly why those suspicious of the Constitution insisted upon the Ninth Amendment.
2.13.2008 10:51pm
K Parker (mail):
Anderson,
It mistakes the fundamental idea of America to think that every right not expressly granted is contingent upon the government's whim.
Have you perhaps ever heard of state constitutions?
2.14.2008 12:02am
DG:
{Yes, hoplosexuals will argue that Lawrence guarantees them a right to carry handguns in public restrooms. }

So long as the gunman doesn't have a wide stance or serve in the US Senate, i think we'll be ok. However, if the wrong "signals" get exchanged, we might have a tragic miscommunication of some sort.
2.14.2008 12:03am
Hoosier:
DG--Ah . . . I'm sure you meant to be funny, but your crass display of hoplophobia is very hurtful.
2.14.2008 12:19am
Clayton E. Cramer (mail) (www):
"Limited government" is not just "limited *federal* government so the States can do as they damn please." Limited government means that there are some areas in which the government simply cannot obtrude.
What constitution are you thinking of that mandates limited government? The U.S. Constitution was supposed to limit federal power, but has few limits on state power.
2.14.2008 12:55am
Clayton E. Cramer (mail) (www):

Citation please? My understanding was that the 14A was intended to protect all Constitutional rights from encroachment by the states.
See here.

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States... These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment… [6]

Cong. Globe, 42nd 1st Sess., Appendix, 84 (1871)
I've seen this same quote in various law review articles as well.
2.14.2008 12:58am
Clayton E. Cramer (mail) (www):

And if you'll read carefully, you'll note that I agree. However, I'd take the position that police power restrictions on personal property should have at least a reasonable basis and be at least reasonable in scope and my point of reference for determining reasonbleness doesn't end in the late 19th centry. I'm well apprised of your contrary position.
And why does the Court's definition of "reasonable" enjoy special power of the legislature's definition of "reasonable"--or even that of the people themselves, when amending their state constitution?
2.14.2008 12:59am
Clayton E. Cramer (mail) (www):

So the State could order that everyone wear red and nothing but red?
Yup, unless the state constitution limited their authority. I'm curious: are you worried about this happening? What sort of crazy people live in your state? There are some really dumb things that I worry about my fellow voters approving, but that's not one of them. When I lived in California, I didn't even worry about the legislature mandating public nudity.
2.14.2008 1:02am
Oren:
I don't think this discussion can go on anymore. If your US of America is a country where the state can mandate what color shirt a man wears then we live in two entirely different countries.
2.14.2008 1:08am
theobromophile (www):
I don't think this discussion can go on anymore. If your US of America is a country where the state can mandate what color shirt a man wears then we live in two entirely different countries.

Oren,

Before the Bill of Rights was enacted, states had their own Bills of Rights. When the Founders wrote the Ninth and Tenth Amendments, they knew that the states did not have complete control over their citizenry, subject only to the threat of losing the next election. Furthermore, presumably, under the idea of competitive federalism, no state would seriously mandate that everyone sport a red shirt - even on Valentine's Day - lest most of the citizens abandon the State and move to another one. Nevertheless, should the people in the States have allowed their state governments to so legislate, by not reserving their own shirt-wearing to themselves, such a law would comport with the Constitution.

The idea behind the Ninth Amendment (can we get a Randy Barnett/Kurt Lash showdown here?) is that the Bill of Rights shall not be interpreted in the same manner as Art. I, Sec. 8 (i.e. rights, if not expressly given to Congress, are reserved for the states or the people); many of those opposing the adoption of the Bill of Rights feared that enumeration of rights would be used as a means to expand the federal government's power. It keeps Congress in its place so that the Bill of Rights couldn't be interpreted as giving Congress all the power except that which is excluded to it in the first eight Amendments.
2.14.2008 3:46am
Oren:
First off, if you'd ever lived in IL, you'd know that the state constitution never stopped anybody from doing anything. We needed the DOJ to come in an jail our governor ffs.

Secondly, the 14A changed the entire equation

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
. From then on, the 14A incorporates by reference all of the privileges and immunities that accompany being citizens of the USA, including the unenumerated ones. After Heller, the only unincorporated enumerated rights will be civil trial by jury and grand-jury indictment (oh, an possibly quartering of soldiers because it never came up).

What other logical meaning could attach to the phrase 'privileges or immunities of citizens of the United States'? It seems that the inescapable conclusion is (to quote Van Alstyne, William The Second Amendment and the Personal Right to Arms)
What was previously forbidden only to Congress to do was, by the passage of the Fourteenth Amendment, made equally forbidden to any state.
2.14.2008 5:28am
Oren:
Forgot to link
2.14.2008 5:31am
Ted10 (mail):
I'm curious: are you worried about this happening? What sort of crazy people live in your state?

Um, did you forget what started this thread?
2.14.2008 7:16am
M. Simon (mail) (www):
Clayton E. Cramer,

There's a war on?


I like that answer.
2.14.2008 8:23am
Clayton E. Cramer (mail) (www):


I'm curious: are you worried about this happening? What sort of crazy people live in your state?



Um, did you forget what started this thread?
1. DC isn't a state. It is entirely a creature (and a pretty scary one) of the federal government, and is subject to Congressional oversight and the Bill of Rights.

2. The right to pick your shirt color isn't an enumerated right. (Well, okay, maybe as "freedom of speech.")
2.14.2008 9:03am
Anderson (mail):
Have you perhaps ever heard of state constitutions?

Whoosh! The sound of my point utterly missing K Parker.

ANY constitution, state or federal, in the U.S., is premised on the idea of limited government. We do not enjoy merely those rights that the government has deigned to grant us. Rather, the government has only those powers over us that we agree to grant *it*.

My red-shirt example seems silly? All right then, closer to the Texas statute: let's say that Texas prohibits any sexual position other than "missionary"-style sex, on the grounds that any other position is perverse, unnatural, etc.

What I'm hearing in this thread is "sure, the legislature could do that -- if you don't like it, get out there and wave signs for WOMEN ON TOP!!! and lobby for a new law."

I think that's ridiculous, and I think it betrays a fundamental belief that we exist at the government's whim, not vice-versa.
2.14.2008 10:00am
DiverDan (mail):
Has anyone considered the possibility that the Fifth Circuit panel was being just a bit Machiavellian in its treatment of the Texas Dildoes case? It's not a stretch to imagine that certain Fifth Circuit Judges are more than a bit annoyed at certain Supreme Court decisions that seem to just make up new constitutional rights - Judge Edith Jones wrote a rather scathing concurrence in the case where the original Jane Doe tried to undo Roe v. Wade, and the case was dismissed for mootness. Why not take a case that stretches Lawrence v. Texas to its logical extreme (it would have been even more interesting if they had the opportunity to use Lawrence to strike down Texas' prostitution laws, as Scalia had predicted), and use it to basically dare the Supreme Court to: (1) overrule Lawrence; (2) limit Lawrence to the particular danger of homophobic laws (and expose Lawrence as being based on a vapid rationalization by Kennedy); or (3) follow Lawrence, and accept the consequences?
2.14.2008 10:27am
Wince and Nod (mail) (www):
I am puzzled why people would take the stance that prohibitions such as these have no rational basis. The Catholic church has products voluminous teaching full of rational discussion on the subject of the effects of private moral decisions on public society and the role of government in limiting particular practices. Furthermore, if we consider the predictions the Pope made in his teaching about the side effects of widespread birth control, we find his predictions came to pass. That would indicate to most scientific minds that his reasoning was sound, even if they did not agree with all his conclusions.

(I will pause to remind the skeptical that the Catholic church has a long tradition of rational discussion of both theology and morality including extraordinary thinkers such as Augustine and Aquinas.)

Have people here lost the skill of considering what a capable opponent who disagrees with their position might say?

In short, is Devil's Advocacy dead? On a law blog?

Yours,
Wince
2.14.2008 12:03pm
Randy R. (mail):
If the Catholic church has volunimous research that proves that dildos cause the downfall of civilizations, I think you should link to it.

If it's true what you say, then the gov't should force us to always make good moral decisions. And if you don't, then the courts will what, put you in jail for failing to help the poor? If you don't tithe your 10%?

And are we supposed to now follow Catholic morality for everyone? What if I'm not a catholic?

Correct me if I'm wrong, but I would suspect you are only interested in legislating sexual morality, right?
2.14.2008 12:21pm
Wince and Nod (mail) (www):
Randy,

Way to entirely ignore my point. I'm not generally interested in regulating behavior between consenting adults. There are of course exceptions. For example, I'm in favor of regulating sexual activity in public restrooms.

I'm also not interested in pretending that private consenual behavior doesn't have public, societal side effects, which a legislature might rationally believe require regulation - for both guns and - for example - swimming pools and hot tubs. Don't those last two regulated devices sometimes play a role in sexual behavior?

Yours,
Wince
2.14.2008 12:36pm
Randy R. (mail):
Diver Dan: I doubt that the court was being machievellian. Read footnote 33, in referring to another decision. "That fails to recognize the Lawrence holding that public morality cannot justify a law that regulates an individual's private sexual conduct and does not relate to prostitution, the potential for injury or coercion, or public conduct.

Logical extreme? IT seems that court is holding a rather narrow ground here. If a law doesn't fall into one of three categories, relating to prostitution, potentail of injury or coercion, or public conduct, then the state has no business regulating it.

I find that to be perfectly reasonable.
2.14.2008 1:54pm
Randy R. (mail):
Sure Wince and Nod, the state has an interest in regulating PUBLIC swimming pools and hot tubs, but not private ones in your own home or backyard. But if you can find any opinions from the Pope, or any medieval theologian, on private swimming pools and hot tubs, I'd be happy to read them. I would like to hear how having consensual sex in my swimming pool affects public morality.

As for sexual activity in public restrooms, I don't see anyone advocating for that, so that's a straw man. Even if someone argues for that, we don't need the Catholic church to tell us it's wrong.

"I'm also not interested in pretending that private consenual behavior doesn't have public, societal side effects, which a legislature might rationally believe require regulation"

So far your only examples of this are birth control and swimming pools. Got any others? The issue at hand is the prohibition of dildos, and you stated there might be a rational basis for doing so. The Court found none. If you have any basis, please, by all means, enlighten us.
2.14.2008 2:06pm
Oren:
The right to pick your shirt color isn't an enumerated right.
It is nevertheless implicit in the concept of ordered liberty.
2.14.2008 2:51pm
Aultimer:

Furthermore, if we consider the predictions the Pope made in his teaching about the side effects of widespread birth control, we find his predictions came to pass. That would indicate to most scientific minds that his reasoning was sound, even if they did not agree with all his conclusions.


You misunderstand the scientific method. Correlation is not causation, nor is it rational basis.

Clayton Cramer:

Is it fair to say you don't see any protection against the tyrrany of the majority in the U.S. constitution?
2.14.2008 4:51pm
Sk (mail):
Frankly, I don't understand why anyone could think banning dildoes is unconstittutional. The government bans things all the time. Currently, they are considering banning a certain kind of light bulb and requiring a different (more energy efficient) one. The government has banned the sale of toilets that use an excessive quantity of water, and required the purchase of toilets that use an acceptable quantity of water. The government imposes gasoline mileage requirements on vehicles, imposes type of gasoline requirements (no leaded gasoline), imposes safety requirements (no sales of automobiles without seatbelts), imposes safety standards on toys (no more lawn darts), etc etc, for millions of products. It is the very essence of what governments do.

The Texas ban on dildoes is silly, but silliness isn't unconstitutional-or it wouldn't be, if the judiciary and legal community were intellectually honest. I think we all know the constitutional principle at play here: "silly rules espoused by extremely conservative or religious people are unconstitutional because we sophisticates in the judiciary are above such things." (that's the 10 1/2th amendment).

Sk
2.14.2008 4:53pm
Ted10 (mail):
Sk, I get your point, but all those bans you mentioned can be interpreted by most reasonable people as serving the common good. Banning an innate object, which is privately used for personal pleasure and couldn't in any way be construed as being able to harm others (unless it's large and made of bamboo, see Canadian case from other posts.. ) is in my opinion anyway, unconstitutional.
2.14.2008 7:25pm
Ted10 (mail):
Sorry, inanimate, not innate
2.14.2008 7:28pm
Oren:
The Texas ban on dildoes is silly, but silliness isn't unconstitutional-or it wouldn't be, if the judiciary and legal community were intellectually honest.
Yes, everyone that disagrees with you is intellectually dishonest. We get it already.
2.14.2008 9:53pm
sk (mail):
"Sk, I get your point, but all those bans you mentioned can be interpreted by most reasonable people as serving the common good. Banning an innate object, which is privately used for personal pleasure and couldn't in any way be construed as being able to harm others (unless it's large and made of bamboo, see Canadian case from other posts.. ) is in my opinion anyway, unconstitutional."

Lawn darts? 3-wheeled ATVs? Light bulbs? flammable halloween costumes? crack pipes? etc etc etc ad infinitum?

You really believe there is a constitutional principle that applies to the freedom to use inanimate obects for personal pleasure? Perhaps its ok to ban 'animate' objects, or objects that are not used for personal pleasure? Its ok to ban chickens (animate) but not rubber chickens (inanimate)? Its ok to ban boards (work-related) but not board games (pleasure-related)? What about board games related to chickens (rubber or otherwise)?

Here's the real issue:
You are more disturbed by laws you don't like (bans on dildos) than you are by elites overrruling your legislature (lawyers who read alot deciding what elected representatives can do).

I'm more disturbed by studious lawyers overruling my legislature (even when I disagree with the legislature, and even when I agree with the studious lawyers) than I am by legislative decisions (even when I disagree with those decisions-that's democracy, after all).

In the Middle Ages, they argued about how many angels could dance on the head of a pin. Today, we argue about the constitutional difference between a lawn dart and a dildo. Nonsense in either case.

Sk
2.15.2008 9:07am
Aultimer:
sk:

Ted is making a libertarian-ish argument - the government can't regulate things unless some threshold of common interest is met. That's essentially the descriptivist position that lost in Raich and Kelo, but still holds water in some areas of government action.

Statists take the increasingly descriptivist position that the goverment can do whatever it wants if it's for the good of someone complaining. That's the Democratic Party's position, and much of the Republican Party's position (the Christianist and neo-con wings).

Strict-constructionists take the normative position that the government can do whatever the majority wants, subject only to the black letter of the relevant constitutions. That's the Federalist Society's and Ron Paul's position. It's like communism, in that it works great as a though experiment, but ignores human nature.
2.15.2008 9:55am
Randy R. (mail):
Sk, the reason we have bans on certain things is that beginning sometime in the late 19th century, people got fed up with products and services that were dangerous. The public doesn't have the time or the information to investigate everything, so we have *regulated* drugs that dont' do what they say they do, we have *regulated* toys so that they are safe. IF something cannot be made safe, then it is regulated out of existence, such as DDT. But it turns on the health, welfare and safety of the consumer.

Dildos were regulated because they immoral, which is unconstitutional under Lawrence.
2.15.2008 10:54am
K Parker (mail):
Anderson,

Perhaps Clayton has already answered your objection to me adequately, but in case not:

I've spent a long time looking at the Tenth Amendment, and though I'm quite familiar with the ending clauses ("are reserved to the States respectively, or to the people") I can't seem to find any state preference on which of the two gets the rights in any particular case. Hence my appreciation for the value of state constitutions, which further restrict the power of the individual States by putting some of those rights firmly in my hands and beyond state reach.
2.15.2008 3:21pm
K Parker (mail):
Oops, "state preference" should really be "stated preference". As mis-written it could be quite confusing.
2.15.2008 3:22pm