Althouse: The argument that you have a right to buy and sell sex.

July 23, 2015

The argument that you have a right to buy and sell sex.

ReasonTV describes a lawsuit:

(This is very slow moving if you have some legal expertise.)

40 comments:

rhhardin said...: What about the public morals power.; 7/23/15, 4:56 PM
Beldar said...: No you don't have that right in America (anywhere but in a few counties of Nevada).

You should, but you don't. If you don't like that, work to change the law by lobbying and by voting for candidates who agree with you.

Don't pretend, though, that the law is what it isn't.; 7/23/15, 5:04 PM
Beldar said...: Even Mr. Justice Kennedy doesn't (yet) think that the sweet mysteries of life that inform and define and actuate his definition of the due process clause of the Fourteenth Amendment gives anyone a right to commercial prostitution.

This is nonsense masquerading as legal scholarship.

(I'd say the same thing about Lawrence v. Texas, although I agree with that case's result as a matter of public policy -- not as a matter of constitutional law.)

These are folks eager to rush pell-mell down the slipperiest of slopes.; 7/23/15, 5:08 PM
J. Farmer said...: Tyler Cowen participated in an old Intelligence Squared debate panel on this subject. Very interesting listening for anyone who wishes to Google it.; 7/23/15, 5:10 PM
Ann Althouse said...: "What about the public morals power."

All powers are limited by individual rights, and Lawrence v. Texas arguably says that ideas about morality are not enough of a government interest to support a burden on consensual sexual behavior between adults.; 7/23/15, 5:11 PM
Ann Althouse said...: Scalia, dissenting in Lawrence:

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.... The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.""; 7/23/15, 5:13 PM
Bay Area Guy said...: The Libertarian folks at Reason have a lot of appeal, don't get me wrong. They certainly deserve and have earned a seat at the intellectual table.

The problem is when they stray too far into utopianism.

In the real world, the sex trade slides quick into sexual human trafficking where the weak and vulnerable get used and abused by the strong and powerful. Sounds a bit Commie, I know, but anyone who's ever studied the ACTUAL problem of human trafficking will tell you this.

The problem isn't rich privileged white guys (like Governor Eliot Spitzer!) hooking up with hot call girls in Manhattan, duh. The problem is the exploitation in poor, 3rd world countries.; 7/23/15, 5:22 PM
Etienne said...: No good can come from a country that graduates more lawyers than engineers.; 7/23/15, 5:24 PM
Anonymous said...: I've always wondered, if you want to profit from sex, why not start your own porn business?

My wife and I watch a lot of tv shows. And if you pay attention, you'll notice that many actors are also producers of the shows they are on. This means that they pay to produce the show that they get paid to act in.

If you want a prostitution business, call it a porn business. The johns are your actors and your producers. And they get to fuck a porn star.

Why would this be illegal?; 7/23/15, 5:36 PM
n.n said...: Defining dignity and value down, while respecting the limits necessary or sufficient to preserve environmental stability. A little planning will serve to overcome or invalidate any reasonable, popular, and even practical dissent.; 7/23/15, 5:38 PM
Beldar said...: Prof. A: I agree with Mr. Justice Scalia.

That's why I referred to Mr. Justice Kennedy's beliefs, as opposed to what he wrote. What he wrote is without any useful legal distinctions, any guiding principles, that can distinguish between consensual non-commercial and consensual commercial interactions between consenting adults. It's a spectacularly bad example of making sh*t up and pretending it's in the Constitution.

If Mr. Justice Kennedy were hit by a truck tomorrow, whether the living breathing Constitution would suddenly take a deep breath and conclude that, per Lawrence, prostitution laws are suddenly unconstitutional would depend entirely on whether the Senate Republicans were able to block Obama's appointment to replace him.

That's not law, that's politics. That's not even a good illusion of law.

(That said, I will again pray tonight for Mr. Justice Kennedy's continued good health, as I pray for President Obama's, not because I have much respect for the former or any for the latter, but because the immediate alternatives are so very much worse for the law and our Nation.); 7/23/15, 5:48 PM
Wilbur said...: I believe the legalization of prostitution is worthy of consideration as public policy, i.e., of course on the legislative level.

However, to quote the late Justice Rehnquist regarding other supposed constitutional rights: "The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction."; 7/23/15, 6:08 PM
Bobby said...: eric,

I agree with you about the contradiction and I can't myself understand why paying for sex is illegal while paying for sex and filming it is not, but whenever I have posed that question to people, I have found that those most passionate about keeping prostitution illegal tend to have no problem admitting that they would ban pornography, too, if only they could.

At this point, with VHS and then high speed internet doing what it did to "mainstream" porn, I suspect we're in that same area as alcohol/cigarettes versus marijuana -- neither of them are good for you, but the former have a lot more users and are (perhaps therefore) more socially acceptable than the latter, so one is legal and the other is not, even if there's not a whole lot more than "just because" behind it.; 7/23/15, 6:09 PM
n.n said...: Sure, why not. There is already a rite to indiscriminately kill human lives and sell their body parts. In fact, regulating prostitution (e.g. planned intercourse) in addition to our selective-child policy (i.e. planned "parenthood") would place us firmly in the same moral ring with such places as China. It's no wonder that leading Western human and civil rights personalities have withheld criticism of their progressive leadership.

Not to mention "equal" policy, that surely would not discriminate against other orientations and behaviors. Raise the rainbow flag and welcome the prostitutes. #LoveWins

eric:

Ah, the pornographers. The industry that reduces individual human lives to a [select] assembly of parts to exploit for profit and pleasure. They stand shoulder to shoulder with other social and economic paragons of progress including Planned Parenthood. They probably haggle over the price of choice bits, too. #MoneyWins; 7/23/15, 6:17 PM
Static Ping said...: Pornography is in a gray area. Pornographers are prosecuted sometimes, and I mean in the present in the United States. They are certainly harassed by the government. It is unclear to me what is and is not legal.

In any case, I suspect that while you could engage in prostitution and declare it is pornography because you are filming it, the authorities would probably require that you put some greater effort into it beyond propping up your smart phone next to the lamp on the end table. You know, like trying to distribute said film. Not sure if you would want to share your exploits with the world, especially if the prostitute seems bored with your dad-bod and hot dog down the hallway.; 7/23/15, 6:21 PM
Static Ping said...: Also, I would recommend doing some research on prostitution in Europe where it is legal. The results have been mixed at best. Human trafficking is one of the bigger problems but not the only one.

I have talked to some Dutch people who seem to think that the red light district in Amsterdam is more trouble than it is worth. The government has already reduced its size significantly and from I grasp is working to shrink it further. Also, the Dutch generally do not go there for "services." It's mostly for tourists. Most of the prostitutes are not Dutch either.; 7/23/15, 6:35 PM
William said...: I can't define a slippery slope, but I know one when I see it. The sex act doesn't ordinarily bring out the loftiest elements in the human spirit. Something to do with the id...... There have been many societies that were permissive of prostitution. There were some exceptions but, by and large, the women involved in such enterprises didn't prosper......I think the social stigma attached to being a homosexual used to be far more damaging than anything about the homosexual condition itself. Perhaps the stigma attached to being a prostitute or a john is actually more damaging than the act of prostitution. Maybe if they had a kind of Uber app for ho's and johns some of the dangers could be eliminated. Or maybe not. Slippery slope.; 7/23/15, 6:43 PM
jimbino said...: In the USSA, we get our food and housing pretty much on the open market with minimal gummint interference. Other "necessities" like sex and health care are only available with deep gummint involvement. Imagine a country that provided for food, housing and sex insurance--a kind of Obamafood, Obamahome and Obamasex.

Walmart has long satisfied our food and merchandise needs without much gummint interference; now they're starting to provide health care. Wouldn't it be great to be able to buy/rent a home and buy sex at Walmart as well? Walmart also has a tradition of not discriminating against customers based on sex, age, race, sexual preference, marital status, family status, majority status, nationality, citizenship, ethnicity, disability and so on, something you can't say for the gummint, which grants or denies many privileges based on one or all of those.; 7/23/15, 6:48 PM
sean said...: Another right. What I find puzzling is that all the rights that the chattering classes of today keep finding relate to sex. Why is that? I mean, nobody thinks that there is a fundamental right to use recreational drugs, or own firearms (there may be a Second Amendment right, but it isn't part of the universal human rights protected by substantive due process and customary international law), or burn coal, or build what you like on your own property, or any of those things. The only unenumerated, "natural" rights relate to sex. Maybe Prof. Althouse, as a member in good standing of the chattering classes, can explain that.; 7/23/15, 7:03 PM
Sebastian said...: "if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."

Scalia should know better. The "courts" will just invalidate the stuff they dislike, "finding" new rights as needed--with the assistance of the sort of law profs who think that, sure, the post-CW amendments mandate things unimaginable to their authors--and they will keep the stuff they like. Logic and law have nothing to do with it. The will to power, everything. Whether prostitution gets legalized or not, we are screwed.; 7/23/15, 7:46 PM
Laslo Spatula said...: ALWAYS film your sexual activities: this makes them ART.

I am Laslo, and I like Art.; 7/23/15, 7:46 PM
Unknown said...: I find the logic of legal abortions and illegal prostitution confusing.; 7/23/15, 8:29 PM
Mike said...: "Also, I would recommend doing some research on prostitution in Europe where it is legal. The results have been mixed at best. Human trafficking is one of the bigger problems but not the only one. "

It's legal in some places, illegal in others. You might want to check out Queensland or New Zealand as well. You can't but come away with the conclusion that decriminalized sex work is better for everyone.

And if you care about human trafficking, you shouldn't the police and federal agents wasting their time on stings where 99% of the people they arrest are consenting adults.; 7/23/15, 9:19 PM
Big Mike said...: Prostitution should be legalized in college towns, and co-eds should be segregated in their own universities. (The first clause applies to the college towns for both male-only and female-only universities.); 7/23/15, 9:48 PM
madAsHell said...: No, this is a bad idea.

I like women. I like to have sex with women. I fantasize about her O face. Unfortunately, the women that would sell themselves are emotionally damaged. We cannot condone that as some kind of freedom.

The men that would buy sex are damaged as well.; 7/23/15, 9:52 PM
madAsHell said...: Caveat....I've been having the same sex with the same woman for about 35 years.

She gave me a couple of nice kids!!; 7/23/15, 9:54 PM
madAsHell said...: So....I'm in a same sex marriage.

WoooHoo...how progressive!!; 7/23/15, 9:57 PM
Smilin' Jack said...: This is very slow moving if you have some legal expertise.

And thus realize that that "Land of the Free" bullshit is just bullshit.; 7/23/15, 10:17 PM
Birkel said...: Anybody keeping score for how many times Scalia is proven correct?; 7/23/15, 10:43 PM
Laura said...: So if love wins, why can't lust? Pursuit of happiness and all, ya know.; 7/23/15, 11:20 PM
n.n said...: madAsHell:

Absolutely. The question is how, short of a pro-choice doctrine, will they exclude a diverse range of orientations and behaviors on principle?

Steven Davis:

The commodity market for human life can be capricious or selective. Its proponents assert that a progressive or incremental doctrine will constrain the consequences of their policies. Unfortunately, their claims do not have a basis in reality. There is always another orientation or behavior awaiting normalization on the horizon, and pro-choice or selective exclusion does not mitigate, but rather obscures the creation of moral hazards. Case in point, Planned Parenthood and the [elective] abortion industry generally.; 7/23/15, 11:46 PM
n.n said...: Static Ping:

There are three classifications for behaviors: normalization, tolerance, and rejection. Pornography, when engaged with consenting adults, may be tolerable; but, in order to preserve the exceptional value of human life (i.e. individual dignity, intrinsic value), it cannot be reasonably or legitimately normalized. In fact, since the focus of pornography is a reductive process, it should be shunned and discouraged, but perhaps not actually proscribed, which may create more hazards than it resolves.; 7/24/15, 12:07 AM
sinz52 said...: William said: "The sex act doesn't ordinarily bring out the loftiest elements in the human spirit."

Ayn Rand would disagree with you. Read what Rand said about sex in "Atlas Shrugged."

Sex was an integral part of some Eastern religious sects too.

https://en.wikipedia.org/wiki/Maithuna

The feeling of shame about sex that you seem to be alluding to, is a part of Judaism and its descendants (Christianity and Islam). But other religions didn't feel that way.

During Biblical times, the Canaanite religion (which included the gods El and Baal) offered ritual sex with priest-prostitutes (both sexes).

Perhaps that's why God keeps warning his people not to worship Baal. Free sex must have been quite a selling point.; 7/24/15, 6:10 AM
Jaq said...: I don't really care for laws that outlaw prostitution, but I will say that it is incredible to me that judges have arrogated to themselves the right to decide what should be democratically decided. It's a recipe for trouble.; 7/24/15, 7:49 AM
Chris403 said...: They call it the world's oldest profession for a reason, so outlawing it never really works. That said, prostitution is a very sad story about 99 percent of the time. Countries with a lot of prostitution are always massive failures where women sell their bodies out of necessity.; 7/24/15, 7:56 AM
Static Ping said...: Mike: It's legal in some places, illegal in others. You might want to check out Queensland or New Zealand as well. You can't but come away with the conclusion that decriminalized sex work is better for everyone.

The slavery bit is difficult to stomach. According to Wikipedia, the annual number of victims of human trafficking in the Netherlands is somewhere in the 1000 to 7000 range and most of them are forced into prostitution. I wish I had more concrete numbers, but it appears that a large percentage, if not a sizable majority, end up working in the "legal" prostitution industry.

I suppose one would really need to see the effects of each policy to make an informed decision, but such numbers are not forthcoming. If legal prostitution results in a large increase in human trafficking to take advantage of said policy, the rest of the benefits seem small in comparison, at least to me.

I agree with Chris403. Prostitution is impossible to eradicate, but it rarely works out well for the prostitutes.; 7/24/15, 9:24 AM
Birkel said...: Life works out poorly for us all, what with the inevitable death and all...

I enjoy the "statistics are hard to come by" position "coupled" with the "it works out poorly because Shut Up" position. Comedy genius.; 7/24/15, 10:07 AM
Bobby said...: Static,

"If legal prostitution results in a large increase in human trafficking"

Obviously, we don't know that to be true, so a lot hinges on the validity of what follows the word "If." However, the Bureau of the Dutch National Rapporteur on Trafficking in Human Beings - Third Report (released March 2005) actually concluded the opposite -- that decriminializing the brothels did not lead to an increase in trafficked persons and that if there was an increase in trafficked persons, it would be with the "illegal, non-regulated or uncontrolled sectors."

But who knows? I mean, we have criminalized prostitution in all but a couple of Nevada counties in America, and yet we still see human trafficking here. Maybe it's like that whole thing Althouse posted about Papua New Guinea way back where they had criminalized cannibalism and yet were shocked that it was still happening... Maybe just making something illegal isn't enough to make it not happen in the real world. What do I know.; 7/24/15, 10:50 AM
clint said...: It would be weird if legalizing prostitution caused an increase in human trafficking.

Violence and abuse are usually rampant in black markets and far less so in legal markets.

I'm at a loss to think of a single counterexample. Anyone?; 7/24/15, 2:17 PM
Paul said...: May the herpes god smile on their endeavors.; 7/24/15, 6:51 PM