11th Circuit Rejects Constitutional Challenge to Ban on Saleof Sexual Devices, Relies On Bowers

[James Maule]

I don't get it. It's ok to enact a statute that as a practical matter protects no one from harm (because the marital aids industry is moving onto the Internet) under the pretext of protecting property values and attracting prostitution (which is ironic given that the success of the marital aid would be marked by an aided or saved marriage with a concomitant decline in demand for the services of prostitutes), but it is not ok to prevent a rapacious business owner from taking advantage of a hungry worker wannabe whose desperation makes her vulnerable to over-reaching, but it is ok to refuse service, property or the use of property to individuals whose lifestyle is repugnant to the property or service provider on the basis that nothing is taken from them when the refusal is made (even though refusing said services, property or use of property to someone whose racial, gender, or ethnic characteristics would cause providing of the property or services to cause a conflict with the theological beliefs of the provider because the refusal would take away from the rejected person hallmarks of their personhood on which rest basic human rights).

Whew! On the spectrum ranging from the totalitarian control of person to the all out anarchy of unchecked libertariansim rests a line, something certainly implicit in Rick's rejection of not only of the pretextual controls of the liberal regulatory state and nonsymetrically unchecked libertarianism. But should not the line be one axe across the spectrum and not a weaving wanderer that cuts across it multiple times? Ought not the principle underlying the line drawing be consistent? I understand differences of opinion as to the philosophy of where (if at all) the line is drawn but I don't quite get the difference between the defense of "morality" regulation of non-harmful activities and the laissez-faire treatment of harmful low-balling wage contract economic practices. Perhaps it is a disagreement over the answer to the question of why government is needed in the first place?



Jim Maule
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule


>>> conlawprof at YAHOO.COM 10/16/00 04:37PM >>>
Even if "mere" public morality is not a sufficient
basis to support the sex toys law (and protecting
public morality has traditionally been regarded as one
important function of the state's police power), the
secondary effects analysis seems strong (indeed, this
analysis views the law as literally protecting
property owners and residents against the conceivable
"nuisance harm" caused by the sex toy
industry--affects on property values, attracting
prostitution and crime, the quality of life in
neighborhoods, etc).

I personally would love to see economic liberties
given much more protection than they receive today. It
seems to me that the modern regulatory state is far
too quick to discover "harm" to others in private
contracts between consenting adults and in covering
private commercial transactions under the
ever-expanding scope of antidiscrimination laws. It
may be immoral to pay a worker less than the minimum
wage, but I don't see how I "harm" a person when I pay
him a wage he agrees to accept. Similarly, I don't see
how a landlord "harms" unmarried cohabitants when she
refuses to rent to them. It is the landlord's property
and she takes nothing from the cohabitants when she
decides not to rent to them. If the truth be told,
many of the regulations of the regulatory state are
based upon nothing more than *liberal*  notions of
public morality disguised as utilitarianism.

I might well buy into Prof. Ku's libertarian society,
so long as the meat-axe cuts restrictive laws
even-handedly. Let's repeal Hardwick and resurrect
Lochner, and live free or die!

--Rick Duncan


--- Raymond Ku <kuraymon at SHU.EDU> wrote:
> We are of course rehashing the heart of the debate
> surrounding substantive
> due process and for lack of a better term the right
> to privacy.  In that
> respect the indeterminancy of the debate reflects,
> what I believe and have
> argued elsewhere, is a critical flaw in SDP and
> fundamental rights analysis
> -- a slavish focus on identifying whether the
> particular act in question is
> exempt from governmental power rather than first
> inquiring into whether the
> state or U.S. constitution has granted that power to
> government in the
> first instance.  Instead of debating over whether we
> need to look at
> historical protection for specific conduct (i.e., an
> 18th century right to
> use sexual aids) or generalizing to more abstract
> conceptions of liberty
> (i.e., the right to sexual autonomy) (there are of
> course coherent
> arguments for both approaches which is why this
> debate is so fraught with
> judicial value judgments), we should instead be
> examining whether the power
> to regulate this type of conduct falls within
> enumerated powers with
> respect to the U.S. Constitution or within the
> "Police Power" of the
> states.  While Rick Duncan and others (including
> Justice Scalia) appear to
> believe that the police power of the states includes
> the power to regulate
> conduct that violates morality alone even in the
> absence of some nuisance
> harm to others, that answer is far from settled
> either in democratic theory
> of constitutional doctrine.  If Devlin and Hart
> could not resolve that
> question why is our interpretative presumption in
> favor of such an
> expansive power?  In fact, many state courts have
> begun to question this
> assumption in their jurisprudence, Powell v. State
> striking down Georgia's
> sodomy law being only one of the more recent
> examples.  It may be that as a
> matter of state constitutional law this inquiry will
> vary from state to
> state rather than being subject to a one size fits
> all Fourteenth Amendment
> answer, but inquiring into whether a State
> constitution delegates the power
> to regulate activities under a Millian
> interpretation of liberty or whether
> it delegates absolute power to the state subject
> only the express
> limitations would be a  dramatically different
> inquiry.
>
> Raymond Ku
> Associate Professor of Law
> Director, Institute of Law, Science & Technology
> Seton Hall University School of Law
> One Newark Center
> Newark, NJ 07102
> (973) 642-8561
>
>
>
>
>
> Randy Barnett <rbarnett at BU.EDU>@listserv.ucla.edu>
> on 10/16/2000 11:50:17
> AM
>
> Please respond to Discussion list for con law
> professors
>       <CONLAWPROF at listserv.ucla.edu>
>
> Sent by:  Discussion list for con law professors
>       <CONLAWPROF at listserv.ucla.edu>
>
>
> To:   CONLAWPROF at listserv.ucla.edu
> cc:
>
> Subject:  Re: 11th Circuit Rejects Constitutional
> Challenge to Ban on Sale
>       of Sexual Devices, Relies On Bowers
>
>
> Rick Duncan wrote:
>
> > Of course, public morality is still a legitimate
> state
> > interest. If the rational basis test is really
> > applied, this should be a slam dunk win for the
> state.
> > If the state loses under the rational basis test,
> it
> > will be a sure sign that the courts are merely
> > imposing their own policy preferences about
> whether
> > this is wise public policy (for the record, as a
> > legislator I would vote against this law--but I
> think
> > it mocks the Constitution to make dildoes and
> rubber
> > girlfriends a matter of constitutional
> entitlement).
>
> Ironically, Rick Duncan's position amounts to
> letting judges decide which
> liberties are fundamental "rights" and which are
> mere "liberty interests"
> that Congress and the states can take away virtually
> at will.  Almost any
> liberty can be disparaged the way Rick has
> disparaged the liberty to buy or
> sell products--in this case devices used for sexual
> pleasure that do not
> violate the rights of third parties.  Interpreted
> correctly, the Ninth
> Amendment argues against favoring ("deny or
> disparage") enumerated over
> unenumerated liberties ("rights") or picking and
> choosing among liberties
> that are not enumerated to find those that are
> fundamental and worth
> protecting and those that are not.  In other words,
> so long as ANY
> unenumerated rights are protected, judges must
> either assess the necessity
> and propriety of legislative interference with
> liberty--what Rick calls
> "merely imposing their own policy preferences about
> whether this is wise
> public policy"--OR must decide whether some
> liberties are "fundamental" and
> protected by meaningful scrutiny while others are
> not and left to the
> tender
> mercies of legislatures.  The only option that
> purports to get judges out
> of
> the picture entirely is the pure Footnote Four
> alternative of protecting
> ONLY enumerated rights, an approach that has never
> been completely followed
> and for good reason.  While eliminating judicial
> discretion in designating
> fundamental liberties, it too violates the Ninth
> Amendment (not to mention
> the Necessary and Proper Clause and Privileges or
> Immunities Clause).  I
> think it is awkward for any type of originalist to
> claim that Footnote Four
> is either the original meaning of the Constitution
> (as amended) or that it
> reflects the original intentions of its framers and
> ratifiers.
>
> Of course, here there is the complication that, as
> in Bowers, we are
> discussing a state law that implicates the
> Privileges or Immunities Clause
> (or, in the alternative, the Due Process Clause) of
> the Fourteenth
> Amendment
> and this complicates things.  But I agree with those
> who think that the
> original meaning of Privileges or Immunities is the
> protection of all civil
> rights (natural rights that persons enter into civil
> society to have
> protected by government)--including the right to buy
> and sell products--as
> well as additional "positive" rights contained in
> the Bill of Rights.  This
> is not to say that states may not "regulate" these
> liberties, but that
> their
> protection requires such regulation to be
> justified--that is, scrutinized.
> Finally, this entails the need for a theory of the
> police power so we know
> what counts as a proper justification.  And this
> doctrine is completely
> "implied" in the Constitution since it is silent on
> the matter and
> therefore
> entirely "judge-made"--which is not to deny that it
> is essential.  To the
> contrary, there is an inescapable need for a good
> theory of the police
> powers of states.  And such a theory, in my view
> would permit the states to
> prohibit wrongful (as opposed to "immoral") acts and
> regulate rightful
>
=== message truncated ===


=====
Rick Duncan (conlawprof at yahoo.com)

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