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The Circuit Split over Dildos
Eugene Volokh forsees the highest court in the land contemplating the legality of state and local bans on any "device designed or marketed as useful primarily for the stimulation of human genital organs."
As Volokh explains, the Fifth and 11th federal appeals court circuits are already in disagreement on the constitutionality of such bans, and he sees it as likely that the losers in an Alabama case that upheld a state ban on selling dildoes last week will seek review from the Supremes.
Here's what Volokh thinks will happen if the Court decides to take up the case (a matter on which he's less certain), and he forsees a sad day for human genitals seeking stimulation everywhere:
The Supreme Court will conclude the statute is constitutional...The vote will be at least 6-3, because even some of the liberals on the Court — especially Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
Volokh's last point, on Supreme Court justices respect for unenumerated rights to just not be bossed around for no goddamn good reason, is true, and sad.
[Hat tip: Mark Bonacquisti]
¢|9.15.09 @ 7:07PM|#
I have it on the authority of whoever captioned the
Metalocalypse DVD that it's "dildos."
But I'd totally put a little rubber deer in my ass.
Nipplemancer|9.15.09 @ 7:15PM|#
this is why SCOTUS needs live video coverage. i really want to watch the oral arguments on this case. call me crazy but the thought of Ruth Bader Ginsburg talking about dildos would be very arousing.
The Fun Couple|9.15.09 @ 7:22PM|#
any "device designed or marketed as useful primarily for the
stimulation of human genital organs."
Please, not Big Macs!!
Sonya Sotomayor|9.15.09 @ 7:27PM|#
I would hope that a frequently self-gratifying Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Bob|9.15.09 @ 7:34PM|#
I'll tell you what it is! It's a box of big black dildos. You and your sister were supposed to put these out last night.
|9.15.09 @ 7:34PM|#
Also, what about devices designed primarily for the stimulation of nonhuman genital organs?
Electric Toothbrush|9.15.09 @ 7:34PM|#
Can we still get police nightsticks shoved in our orifices? It's brings new meaning to "new professionalism."
Hugh Akston|9.15.09 @ 7:34PM|#
any "device designed or marketed as useful primarily for the
stimulation of human genital organs."
If the SCOTUS allows bans on such devices, how will these organs be
stimulated? What other manner is there to accomplish such a
thing?
Old Bull Lee|9.15.09 @ 7:53PM|#
Shut up, Hugh! You want them to allow bans on hands and fingers next?
Rich|9.15.09 @ 7:54PM|#
Dammit, Old Bull! Anyway, ...
What other manner is there to accomplish such a
thing?
This could be real bad for the Intelligent Design folks.
Happy Jack|9.15.09 @ 8:25PM|#
useful primarily for the stimulation of human genital
organs
Bedknobs and Broomsticks?
Michael Ejercito|9.15.09 @ 8:35PM|#
Can anyone point out to me what provision in the United States
Constitution protects the right to use sex toys?
Just because a law is a bad idea does not make it
unconstitutional.
Just because a law is a good idea does not make it
constitutional.
GILMORE|9.15.09 @ 8:45PM|#
Bob | September 15, 2009, 7:34pm | #
I'll tell you what it is! It's a box of big black dildos. You and
your sister were supposed to put these out last night.
Love the reference =
Mr Show's "Mom and Pop Porno Shop"
http://www.youtube.com/watch?v=VM1GIZSGH4g
"Dont blame the dildos!"
The Angry Optimist|9.15.09 @ 8:49PM|#
Ejercito:
"The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the
people."
- Ninth Amendment -
Now, can you tell me what does not fall under
there? If you can, we might as well nominate you for SCOTUS right
now.
|9.15.09 @ 8:54PM|#
You tell him, TAO.
Or, ask him to show you where in the constitution is there a
specific grant of power authorizing Congress to outlaw sex
toys.
|9.15.09 @ 8:57PM|#
LM, it's not the federales outlawing sex toys, but the Alabama legislature. It's a ridiculous, laughable law that is all but unenforceable...but it's constitutional.
EscapedWestOfTheBigMuddy|9.15.09 @ 9:06PM|#
LM, it's not the federales outlawing sex toys, but the Alabama legislature. It's a ridiculous, laughable law that is all but unenforceable...but it's constitutional.
It may well be federally constitutional (unless the privileges and
immunities clause applies or there is a penumbra or emanation), but
to claim it is constitutional at the state level as well would
require parsing the 1901 Alabama Constitution. Which is notoriously
difficult....given as how it can't be read aloud in 24 hours.
|9.15.09 @ 9:10PM|#
It may well be federally constitutional (unless the
privileges and immunities clause applies or there is a penumbra or
emanation), but to claim it is constitutional at the state level as
well would require parsing the 1901 Alabama Constitution. Which is
notoriously difficult....given as how it can't be read aloud in 24
hours.
That's a great point, one I overlooked in my response. There might
indeed be a perfectly good challenge to the law under the Alabama
Constitution, but federally I can't see a problem with it.
|9.15.09 @ 9:10PM|#
Anyone else find it slightly odd that most devices "designed or marketed as useful primarily for the stimulation of human genital organs" are designed for female genital organs?
The Angry Optimist|9.15.09 @ 9:11PM|#
I would not agree with the constitutionality of it, either. The case is analogous to Lawrence, though not directly so, because it involves sales (and the Alabama Code does not prohibit the possession, use or giving away of sex toys). However, it laughably hinges on "public morality", and if the SCOTUS were to be consistent like in Lawrence, they would get all flowery like Kennedy and say that sexual toys, you know, significantly contribute to people's happiness, or whatever.
EscapedWestOfTheBigMuddy|9.15.09 @ 9:13PM|#
Hazel, at the risk of being slightly crude (would anyone even
notice around here), my observation is that guys seem to be
universally happy to make do with field expedient methods, but not
ever girl is so easily, well, satisfied.
I think guys are just easy.
|9.15.09 @ 9:17PM|#
I'm sorry, I thought you were speaking of original intent.
Naturally, in post-constitutional America where the USSC imposes
its current preferences and aesthetic at its whim, this law might
indeed be found to be unconstitutional. But then again, so might
anything else.
In a Bowers v Hardwick world (which was correctly decided,
despite it being offensive to libertarians), this law stands. After
Lawrence, anything is possible.
|9.15.09 @ 9:21PM|#
In short, I think Ejercito is right.
You can't hope to push the federal Leviathan back into its
constitutional box while invoking the Ninth Amendment for every
personal preference. A9 made perfect sense prior to incorporation,
post-incorporation it's a recipe for legislative anarchy and
big-government meddling.
EscapedWestOfTheBigMuddy|9.15.09 @ 9:26PM|#
A9 made perfect sense prior to incorporation, post-incorporation it's a recipe for legislative anarchy and big-government meddling.
I'm failing to see how that follows. A sufficiently broad
interpretation of the 9th amendment and incorporation might lead to
just-plain-vanilla anarchy, but to big government?!?
How do you figure?
Certainly the original intent was that the feds would infringe on
damn near nothing, and the states would thrash it out under their
own constitutions. The 13th amendment messes to some degree with
that arrangement, but I don't see how it can legitimately lead to
more government meddling.
|9.15.09 @ 9:45PM|#
I'm failing to see how that follows. A sufficiently broad
interpretation of the 9th amendment and incorporation might lead to
just-plain-vanilla anarchy, but to big government?!?
How do you figure?
A9 is essentially an empty vessel. When the powers of the federal
government were "few and defined," it complemented A10 in that A10
reinforced the original intent that the Constitution spelled out
specific powers that the federal entity was to have and A9 filled
in everything around them with a "No Tresspassing" sign posted. The
federal government was strapped down by the Constitution and A9 and
A10. Perfect. Beautiful.
But incorporation inverts that arrangement by putting the federal
judiciary in charge of filling the empty vessel with, as I pointed
out above, its personal preferences. I mean, why no right to a 9
year-old bride, to set up Ponzi schemes, to sell tainted food? Why
aren't those rights under A9? Every state legislature has to
consult the tea leaves of the federal zeitgeist before passing
anything, it would seem.
The big government comes on little cat feet, with Congress getting
into the act by declaring any number of things "rights": health
care, housing, food, employment, etc. Nothing in the modern
interpretation of A9 requires the unenumerated rights to be
negative. Hence, a document crafted to restrain the State is used,
jujistu-like, to increase its power beyond all measure.
D.R.M.|9.15.09 @ 9:57PM|#
Also, what about devices designed primarily for the stimulation of nonhuman genital organs?
This is an interesting approach.
EscapedWestOfTheBigMuddy|9.15.09 @ 10:13PM|#
But incorporation inverts that arrangement by putting the federal judiciary in charge of filling the empty vessel with, as I pointed out above, its personal preferences. I mean, why no right to a 9 year-old bride, to set up Ponzi schemes, to sell tainted food? Why aren't those rights under A9? Every state legislature has to consult the tea leaves of the federal zeitgeist before passing anything, it would seem.
'K. I see where you're coming from, and it is certainly in keeping
with the way politicians want to interpret things these days,
but...
I would argue that a proper reading of the 9th plus 13th would lead
to a list (developed, if you will, at the whim of the courts) of
things about which neither the feds nor the states could
legislate. Not a list of things about which the feds may and the
states may not.
Which certainly isn't the way any politician would want to read it,
and if taken beyond all reason (drink?), would lead to something
resembling anarchy.
My position would be built on two basic planks:
1) the 9th allows that some rights while not enumerated are none
the less reserved to the people (and privacy is properly one of
these, it went un-enumerated because it was simply a feature of
life at the time with the 4th and 5th amendments covering the
exceptions).
2) That these (or some of them) constitute immunities or privileges
under the meaning of the 13th.
The limit here is the 10th amendment's allowance that some of the
un-enumerated powers might belong to the states (rather than being
rights of the people), and the tension is that the 13th holds the
privileges and immunities of the people to supersede those. Lots of
room for argument there.
|9.15.09 @ 10:14PM|#
I contend there are unemumerated rights to do EVERYTHING - to commit murder, to enslave people, to use drugs, to steal, etc. Only where otherwise contradicted (i.e. with slavery) or where there is an extremely compelling reason (murder, theft) can those rights be restricted by the state. Everything else - dildos, prostitution, gay sex, smoking, drugs, public nudity, etc should be presumed to be a right belonging to the people. And any restrictions of those rights should be presumptively unconstitutional (not the other way around).
Robert|9.15.09 @ 10:14PM|#
So...judges may decide this on the basis that dildoes aren't as important to women as real penises are to gays?
|9.15.09 @ 10:24PM|#
I would argue that a proper reading of the 9th plus 13th
would lead to a list (developed, if you will, at the whim of the
courts) of things about which neither the feds nor the states could
legislate. Not a list of things about which the feds may and the
states may not.
I think you mean the 14th Amendment, unless you're trying to make
the case that paying for all of this is involuntary servitude. I
find myself in general agreement, but I don't think a court will
swallow it.
Myself, I'm uncomfortable with the notion that judges, by fiat,
will be determining what are and are not our rights, especially
when the notion of a "right" has mutated into the idea that one can
claim the product of another's labor as such. And no end of chaos
has been created by the courts' declaration of "privacy" to be one,
as well. We might all agree on the idea of such a right, but we all
have different ideas of what privacy is. That's a question for
legislatures, not courts.
Me, I'd be happier to see Leviathan hacked back down into its
proper, Constitutional size and let the states hash out the
details. I'm willing to participate in the democratic process. I
find it far preferable to being dictated to.
Some juan|9.15.09 @ 10:27PM|#
The Angry Optimist | September 15, 2009, 8:49pm | #
Ejercito:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- Ninth Amendment -
Now, can you tell me what does not fall under there? If you can, we might as well nominate you for SCOTUS right now.
Since the people of that state, through their elected
representatives banned the devices, they evidently do not retain
the right to those devices.
|9.15.09 @ 10:28PM|#
I contend there are unemumerated rights to do EVERYTHING -
to commit murder, to enslave people, to use drugs, to steal, etc.
Only where otherwise contradicted (i.e. with slavery) or where
there is an extremely compelling reason (murder, theft) can those
rights be restricted by the state. Everything else - dildos,
prostitution, gay sex, smoking, drugs, public nudity, etc should be
presumed to be a right belonging to the people. And any
restrictions of those rights should be presumptively
unconstitutional (not the other way around).
That's a moral philosophy, not a legal/constitutional one. And at
any rate, do you prefer that an unelected passel of judges define
the boundaries you agree are there, or do you, like me, a bit more
access to those doing the defining?
EscapedWestOfTheBigMuddy|9.15.09 @ 10:34PM|#
I think you mean the 14th Amendment
::blushes::hides head in shame::turns in decoder ring for a
probationary period::
Yeah. It was a typo. No really.
|9.15.09 @ 10:36PM|#
So...judges may decide this on the basis that dildoes aren't
as important to women as real penises are to gays?
I suspect the fear of sex toys is essentially similar to the
Taliban fear of women buying cucumbers.
|9.15.09 @ 10:40PM|#
I suppose the question is whether one believes there to be an inconsistency between A9 and A10. There isn't, as the Founder knew, but we've created one.
The Angry Optimist|9.15.09 @ 10:48PM|#
Since the people of that state, through their elected representatives banned the devices, they evidently do not retain the right to those devices.
Aaaaand we are back to the tautology that rights are defined by the
state, not really making them "rights" at all.
I am relatively sympathetic to Jeffersonian's take on the
Constitution, except it should be noted that it's the South (again)
that fucked up it for the rest of us. What would be done about Jim
Crow under this read of the Constitution?
Groucho|9.15.09 @ 10:49PM|#
human genitals seeking stimulation everywhere
How they get everywhere I'll never know.
Tricky Prickears|9.15.09 @ 10:57PM|#
How they get everywhere I'll never know.
One morning while on safari I shot an elephant in my
pajamas....
mattski|9.15.09 @ 11:04PM|#
The real question is why they want to ban them in the first place. Why are people so concerned with what their neighbors are doing? Don't they have enough happening in their own lives? We'd all be a lot better off if we minded our own business.
|9.15.09 @ 11:15PM|#
jeffersonian: it's just another "balancing test" i'm proposing,
one of many already used by courts to determine when a right is
actually a right, or when a right can be violated. Libel and
solicitation of crimes are not "valuable" speech so they are not
protected by the first amendment.
I'd rather have unelected judges decide these issues than elected
politicians. The notion that politicians who are elected are more
accountable than judges given lifetime tenure (subject only to
impeachment) is easily proven false simply by looking at the level
of corruption and unaccountability in Congress versus the courts.
Elected judges are just as bad, but people not having to cater to
the whims of the stupid every few years are much more capable
public servants. Either give people life tenure or give them one
term. Elections, while a good way to put someone in office
initially, are a bad way to keep them there.
zoltan|9.15.09 @ 11:46PM|#
Why are people so concerned with what their neighbors are
doing? Don't they have enough happening in their own
lives?
Well the answer to #2 is no, hence the laws.
|9.15.09 @ 11:51PM|#
I'd rather have unelected judges decide these issues than
elected politicians.
And this is different from tyranny...how?
|9.15.09 @ 11:55PM|#
More simply put, why don't you prefer to have rights codified into law rather than have them decreed one day by Judge Jones and then undecreed another by Judge Smith?
Michael Ejercito|9.16.09 @ 1:05AM|#
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- Ninth Amendment -
Now, can you tell me what does not fall under there? If you can, we might as well nominate you for SCOTUS right now.
Any rights that were commonly recognized in America at the time of
the ratification of the Ninth Amendment.
Michael Ejercito|9.16.09 @ 1:09AM|#
I'm sorry, I thought you were speaking of original intent. Naturally, in post-constitutional America where the USSC imposes its current preferences and aesthetic at its whim, this law might indeed be found to be unconstitutional. But then again, so might anything else.
In a Bowers v Hardwick world (which was correctly decided, despite it being offensive to libertarians), this law stands. After Lawrence, anything is possible.
What disturbs me so is that many of the same people with an
expansive view of the Ninth Amendment are willing to reinterpret
the Second Amendment in such a way that only the government has the
right to keep and bear arms.
Stormy Dragon|9.16.09 @ 1:11AM|#
Can anyone point out to me what provision in the United States Constitution protects the right to use sex toys?
You've got it entirely backward. The proper question is, "Can
anyone point out to me what provision in the United States
Constitution permits the government to ban sex toys?"
Michael Ejercito|9.16.09 @ 1:14AM|#
And no end of chaos has been created by the courts' declaration of "privacy" to be one, as well. We might all agree on the idea of such a right, but we all have different ideas of what privacy is. That's a question for legislatures, not courts.
It has a lot to do with reasonable expectations of privacy.
If people choose to walk down a public street naked, they have no
credibility to complain about any government agents photographing
them and distributing the photos.
For the government to implant secret listening devices outside
one's home is most likely a violation of the right to privacy. If
people in a home speak loud enough that outsiders can hear what
they say, they have no credibility complaining about the government
tape recording what outsiders could plainly hear.
|9.16.09 @ 1:14AM|#
I'd rather have unelected judges decide these issues than
elected politicians.
I think the RAICH and KELO decisions, just to name a couple for
recent memory, go to show that unelected can be just as incompetent
and or corrupt and/or intellectually vapid as any elected official.
All life time tenure does is allow a dogmatic cocksucker like
Scalia but to live out a full life trying to fuck the constitution
to the way he thinks it out to be.
|9.16.09 @ 2:49AM|#
Can TAO, or some other legal mind please enlighten me as to precisely what powers are granted or prohibited by the Ninth Amendment, and to whom? Try as I might, I just can't see it.
|9.16.09 @ 2:54AM|#
Stormy Dragon | September 16, 2009, 1:11am | #
You've got it entirely backward. The proper question is, "Can anyone point out to me what provision in the United States Constitution permits the government to ban sex toys?"
If the government in question is a state, then that would appear to
be covered by the Tenth Amendment. If it's the federal government,
then the answer is likely either "there isn't one" or "the Commerce
Clause" depending on ones proclivities.
|9.16.09 @ 2:58AM|#
More simply put, why don't you prefer to have rights
codified into law rather than have them decreed one day by Judge
Jones and then undecreed another by Judge Smith?
Well I would, and in a sense that's what I'm proposing. There's no
way to list all of them, there are billions of things I'd consider
"rights"... so I start by saying EVERYTHING is a right, any
infringement on that right is presumptively unlawful, and only when
there is an extremely important reason necessary to the functioning
of society, may that right be limited or otherwise abrogated. For
example, I think we can all collectively agree to have limits on
our right to commit murder (but we want to preserve some of it,
like the right to self defense, etc.).
|9.16.09 @ 5:04AM|#
Also, what about devices designed primarily for the
stimulation of nonhuman genital organs?
STEVE SMITH NEED PROSTATE STIMULATION GRR!
|9.16.09 @ 8:48AM|#
I've been expecting this case to rise up for some time (I live
in Alabama).
I really really want to be a fly on the wall so I can watch Ruth
Bader Ginsburg's face while the lawyers talk about dildos and
vibrators!
Another Bob|9.16.09 @ 9:30AM|#
Future blurb from the supreme court case: "Clarence Thomas was dogged in his thoroughness in this case. He spent at least twelve hours a day for weeks in the archives studying video of the devices in question being put to practical use."
Tony|9.16.09 @ 11:26AM|#
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- Ninth Amendment -
Now, can you tell me what does not fall under there? If you can, we might as well nominate you for SCOTUS right now.
The 9th Amendment's purpose is to disallow the revocation of a
right if the grounds are only that the right isn't enumerated.
There can be other grounds for banning an unenumerated right.
Tony|9.16.09 @ 3:31PM|#
The stupidest? Come on, I've been way more drunk and stoned than I was when I posted that. And it happens to be true.
|9.16.09 @ 4:25PM|#
George Washington had a massive artificial-cock collection that can be seen today at the Smithsonian National Sex Toys Museum.
|9.16.09 @ 8:09PM|#
Part of the problem is the myth that the Bill of Rights was intended to apply only to the feds.
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