Ted Cruz

Here's Why Ted Cruz Fought to Keep Sex Toys Illegal in Texas

The battle over state power, unwritten rights, and the 14th Amendment

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Credit: Gage Skidmore / Foter.com / CC BY-SA

The headlines are almost too good to be true. "The Time Ted Cruz Defended a Ban on Dildos," says Mother Jones. "Ted Cruz Once Fought to Keep Dildos Illegal in Texas," says Vice. But the facts are real. In 2007 Ted Cruz was the solicitor general of Texas and that year his office urged the U.S. Court of Appeals for the 5th Circuit to reject a constitutional challenge to the state's ban on the sale and distribution of sex toys that had been filed by some businesses that hoped to legally sell and distribute such items in the Lone Star State. "There is no substantive-due-process right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship," the Cruz team argued. The 5th Circuit disagreed and struck down the sex toy ban.

This is all fun stuff and will no doubt lead to some very clever jokes on The Daily Show. But there were also some very serious legal questions at stake. Namely, what limits does the U.S. Constitution place on the legislative power of state governments, and what role do federal judges play in enforcing those limits? Related to that, what sort of unenumerated rights (if any) are protected from state infringement by the 14th Amendment?

Cruz's argument in this case will be instantly familiar to every student of constitutional law, and it goes like this: The 14th Amendment is not a limitless fount of unwritten rights and it is not a blank check authorizing federal judges to overturn every state law they happen to find obnoxious or outdated. The states have always enjoyed broad authority to regulate in the name of health, safety, and public morals (so the argument goes) and the sex toy ban falls squarely within the scope of that longstanding state police power. If the people of Texas don't like the law, they should take their complaint to the ballot box, not to the federal courthouse.

Now here's the argument on the other side. The police power of the states is not unlimited and unless the legislation at issue serves a legitimate public health or safety purpose, the law should not be allowed to stand when properly challenged in federal court. What's more (this argument goes), the 14th Amendment does protect certain unenumerated rights, and among those rights is the right to privacy, as the U.S. Supreme Court has repeatedly recognized. Constitutional rights (including the right of consenting adults to buy and sell sex toys) cannot be left to the mercy of democratic majorities.

Perhaps this clash of legal philosophies is now starting to sound familiar. The battle over the scope of state regulatory power and the closely related battled over the reach of the 14th Amendment have been at the heart of some of the biggest and most important constitutional cases in American history, from the conflict over state regulation of the economy (Lochner v. New York) to the clash over state bans on the sale of birth control devices (Griswold v. Connecticut) and state bans on abortion (Roe v. Wade), "homosexual conduct" (Lawrence v. Texas), and gay marriage (Obergefell v. Hodges). Every one of those disputes followed the same basic pattern as the sex toy case starring Ted Cruz. The common denominator in all of the above is that a state government claimed it had the lawful authority to prohibit certain activity and the regulated/criminalized parties claimed that the prohibition violated their unenumerated rights under the 14th Amendment.

Given Ted Cruz's record as an advocate of conservative judicial deference and his cramped reading of the 14th Amendment (not to mention his error-strewn attacks on Lochner), his position on sex toys comes as little surprise.

Related: Here's What John Roberts and Salon.com Have in Common

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  1. Witness

    Cruz isn’t the only cowboy to pony up to religious sex-phobes. ‘Bama’s been rocking the silicone cock-block for nearly two decades.

    Pudding

    1. Cruz and Trump are competing for “creepiest Dad”.

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  2. Constitutional rights (including the right of consenting adults to buy and sell sex toys) cannot be left to the mercy of democratic majorities

    If you follow that logic then you would undermine the entire war on drugs and where would that leave us? Up to our eyeballs in invincible super-predators! That’s where.

    1. Constitutional rights (including the right of consenting adults to buy and sell sex toys

      1. Ah, fuckit.

        We need a preview button, dammit!

        1. I think it stands well as written.

    2. I have taken my libertarian complaint to the ballot box at least twenty time already, and still Ted and his marielito clones refuse to die!

    3. Cruz crusaded thus in 2007? Wasn’t that the same year as the George War Bush prohibitionist asset-forfeiture panic and crumblings of economic collapse? History is rhyming in four-part harmony for 1907, 1929, 1933, 1987 and 2007.

    4. Invincible super predators armed with dildos!

      The horror!

  3. his position on sex toys

    Are we not doing phrasing anymore?

    1. I think we’re doing it very well, actually.

      /euphemisms

  4. “stimulate one’s genitals for non-medical purposes”

    This place and it’s euphemisms, man.

    1. That is, like, the exact opposite of a euphemism. Unless you’re talking about NOT masturbation, of course.

      1. Yes, it’s exactly the opposite. That’s why it’s perfect to make the euphemism joke, goddamit.

      2. He’s really mastered the single entendre

        1. That’s half an entendre, tops.

        2. As he has mastered it, are you trying to bait him?

    2. Cruziety = the haunting fear that someone, somewhere is dusting off Romney

    3. Hey! Life begins at erection!

    4. Actually, the orgasm – however achieved – has often been described as ‘good medicine’. (An orgasm a day helps keep the Grim Reaper at bay.)

  5. Cruz sure is tough on dildos, for a guy who looks like one.

  6. Shorter answer from first paragraph:

    In 2007 Ted Cruz was the solicitor general of Texas.

    We do remember what the job of the solicitor general is right? (Of course if he defended the law on principle outside of the courtroom, mock away)

    1. Exactly. There are lots of reasons to hate Cruz, but arguing legal positions on behalf of a client isn’t one of them.

      1. It depends on the client and I happen to find his client contemptible.

        1. So clients you find contemptible have no right to legal defense?

          1. The client in this case is the State of Texas, not some citizen getting mugged by the state.

            1. No. The client is the voters of the state of Texas. The government is just their proxy. Yeah, you don’t like them and you don’t like their law. That is of course your right. But do you really think “I don’t like them” should be the standard for whether they should get a fair day in court?

              1. The client is the voters of the state of Texas.

                Including the ones who want to use sex toys and have a constitutional right to do so?

                1. Including the ones who want to use sex toys and have a constitutional right to do so?

                  Weird how this poor oppressed minority went entirely without representation or defense and won.

                  We’re at the point where we’re impugning Cruz by proving the system works.

              2. No it’s the government. The ‘voters’ are just supplicants.

              3. It almost sounds like John is in favor of this law….John, what if the dildo has an American flag on it?

              4. It’s not “the voters”, it’s some voters. And those voters only have limited rights to impose things on their unwilling fellow citizens. people like Cruz have to respect those limits

            2. I am so glad my Texan parents had me in Puerto Rico. I wonder how many Texans and Canadians have died of shame listening to Ted’s shrill squeaking against enjoyment, happiness and being alive…

              1. As many as those of us listening to your incoherent rantings.

        2. It depends on the client and I happen to find his client contemptible.

          So you don’t think states should defend themselves from an overreaching federal government? Which is more contemptible, the central government, or the state government?

            1. Correct answer!

      2. Yet, somehow, other solicitors general have found the courage and conviction to fail to defend laws they found to be unconstitutional.

        1. Okay, so an unelected official gets to tank whichever laws he disagrees with? The courts are supposed to be the one who decide if the law is unconstitutional.

          1. Isn’t that true in either scenario?

            1. Yeah, realized that as soon as I posted it.

          2. Okay, so an unelected official gets to tank whichever laws he disagrees with?

            If the AG doesn’t like it, they can appoint a new solicitor general. If the public doesn’t like it, they can elect a new AG. But if your professional opinion is that a law is unconstitutional, then the only defense you can offer in court is to say that the law is indefensible. Otherwise you are violating your oath.

            1. Your own opinion that the law is unconstitutional is irrelevant. What matters is what the court decides, at the end of the litigation. Unless there’s a controlling precedent clearly on point (i.e., that can’t be distinguished), then the lawyer’s job is to zealously represent his client as best he can, even if he’s morally certain that his argument is a loser.

              (When Congress tried to lower the voting age to 18 by statute in 1970, under some lame-assed theory that the enforcement clause of the 14th amendment gave it the power to do so, and that no constitutional amendment was needed, the Nixon adminstration thought the law was unconstitutional, yet the Justice Department defended it all the way to the Supreme Court (where it was partially upheld and partially struck down, in one of the most bizarre decisions, the 4-1-4 split in Oregon v. Mitchell).)

              1. Exactly this.

              2. Of course the AG’s opinion is relevant. That is why they actually have a choice in whether to defend a law or not.

              3. Of course the AGs belief about the constitutionality of a law or any other action matters: if he believes something to be unconstitutional, his oath compels him not to do it.

                And that is a pretty safe rule in the US because the bias in our system should be that government should only do things that are clearly constitutional and necessary. Government in the US doesn’t exist to let the majority implement every one of their whims.

                1. “if he believes something to be unconstitutional, his oath compels him not to do it.””

                  Defending an unconstitutional law in court is not itself unconstitutional. Therefore, your rule does not prohibit him from defending it.

                  Now, *prosecuting* someone for violation of an unconstitutional law, that’s something else entirely. But that’s not what we’re talking about, is it?

        2. But are not public not supposed to refuse to do their jobs?

          It seems to be a rather self-serving principle, applied arbitrarily.

          1. *public officials

          2. Have you ever met a prosecutor?

        3. That some attorneys have given themselves veto power over laws that they don’t prefer doesn’t make it a good thing to do.

    2. We do remember that the job is not to defend laws the job-holder believes are unconstitutional, right?

  7. Could it be that Cruz didn’t personally support the ban, but was only supporting it because it was his job to defend duly enacted laws as solicitor general? Nah, who am I kidding? He’s a SoCon.

    1. Ha, ha. Good one, some guy.

    2. Could it be that Cruz didn’t personally support the ban, but was only supporting it because it was his job to defend duly enacted laws as solicitor general? Nah, who am I kidding?

      Actually, the writings quoted by Mother Jones make it pretty clear that he was no fan of the litigation. When your client stakes out a stupid position, you get to stand up in court and make impassioned arguments in favor of stupid. I’m sure that’s loads of fun.

      One would rather that he would have stepped down and filed a friend of the court brief against the law, but that is certainly asking a lot. Plus, somebody has to take up the mantle in court. And it isn’t like there was no support for the law at all….. not only did the state legislature and governor go for it, so did the first round of appeals courts.

      1. In a country where government is supposed to have limited, enumerated powers, you’d expect a lot of laws that have public support to be unconstitutional. So public support is really a poor defense of specific laws

    3. If there really were a Ghawd, Ted would be embarrassing the hell out of Kansas or Oklahoma. Why Texas, Lawerd?

  8. Cruz’s opposition to dildoes makes sense. Most of us would not appreciate an unlicensed action figure based on our likeness, would we?

    1. +1 Cynthia Plaster Caster

  9. To me this is an issue of the AG has a duty to defend state laws. The AG’s shouldn’t get to pick and choose which laws are worthy or defending in court and by extension effectively get a veto over any law on the books.

    It was Cruz’s duty to defend the law. The law was idiotic of course but that is the Texas’ legislature’s fault for passing it not Cruz’s. I didn’t support the jackass AG’s who refused to defend the laws refusing to recognize gay marriages. So I can’t in good conscience criticize Cruz here.

    1. I’ll bet the Solicitor General makes an oath to uphold the State Constitution or some such when he takes office, though. If the law is blatantly unconstitutional, then he is obligated by his oath to refuse to defend it.

      1. Sure he does. But who says the state AG gets the final say on what the State Constitution means? The courts get that not the AG. The state AG also takes an oath to uphold the law. He has to fulfill that one as well. So he upholds the law by offering whatever defense of it is available and upholds the constitution by respecting whatever ruling the court makes.

        1. You reason as if the situation between keeping and rejecting a law were symmetrical. But it is not. Just like we have a presumption of innocence and allow AGs not to charge people with crimes, we should have a presumption that any new law is likely to be unconstitutional and that refusal by an AG to defend it should be sufficient to strike it down.

          1. I believe you are correct I’ve heard of other AG’s who have said they will not present any arguments for or against something. that said if the AG was told to defend then he has no choice in the matter.

      2. The law’s constitutionality is up to the State Supreme Court, is it not? The Solicitor General would be obligated to argue the law’s constitutionality before the court, against whoever brought suit alleging its unconstitutionality.

      3. A lawyer’s decision to defend a law he believes to be unconstitutional is not a violation of his oath to support the constitution, because he isn’t enforcing that law. That’s either already being done by other people (as would be the case if there hasn’t been a preliminary injunction against enforcement of the law while judicial review is pending), or it will be done by other people if and when the court decides that the law is constitutional.

      4. If the law is blatantly unconstitutional, then he is obligated by his oath to refuse to defend it.

        This law clearly was not “blatantly constitutional”, since the first federal court to hear the case upheld the law.

        Now, constitutional or not, I can’t see how the state can ban a shape. It is just stupid. And not just sculptures of penises either… the state can (and does) ban simple metal or plastic boxes with springs in them – ammunition clips. And they can ban a piece of metal that has been sharpened and having a spring attached (another weapon thing, switchblades). Just the couple of small pieces of metal that would turn a semi-automatic rifle into a fully automatic rifle is enough to pack you off to jail for a long time. Even if you don’t own a semi-automatic rifle that might be converted by such a kit. Banning shapes is just an odd thing.

        1. The BATF murdered an entire christian congregation in Waco over the possibility that they might not have paid a tax on some such couple of small pieces of metal. I believe the policy is called “love thy neighbor.”

    2. I gotta go with John here.

    3. So I can’t in good conscience criticize Cruz here.

      And, once again, Cruz was doing his job as part of a *system that worked* (Debatably, If I were a B&B owner just trying to get the ‘Dildo Warehouse’ next door to be more subtle or go somewhere else, this was a fail).

      This is in comparison to the Socialist, the Felon, and the candidate that is on the winning side whether the system works or not.

    4. As much as I don’t like the law, his position is not exactly unthinkable here. He wasn’t defending whether or not a state ought to pass such a law, but whether or not it has the power to.

    5. Then he should’ve stepped down. This is exactly like rationalization a drug warrior’s (or war criminal or lawfully unjust actor) action to “hey, they’re just doing their job.”

      1. Ok, he’s going to derail his entire career over this one case, just so someone else would immediately take his place and do the same thing?. I’m sure you would do the same.

    6. Well said. Reason may think AGs deciding whether to do their job is a great idea now but what happens when that happens with things they like? An AG refusing to help fight a case to get rid of Constitutional Carry, Right to Work or bars against Affirmative Action in state hiring?

  10. Anything in that law about Deep Tissue Massagers? Because they have those in the pharmacy window.

    1. Go for it, Slammer! You’ve earned it.

    2. If they are marketed for prostate stimulation, a “legitimate” medical use, then they are good. If they are marketed for icky masturbation then they are fair game. /soconz

    3. The Brookstones in Maryland have “personal back massagers” called “The Rabbit” and the “The Wand.”

      Some even run on batteries, go figure.

  11. SLD, but I am frequently amused that the American people claim to live either in a democracy (blatant majoritarianism) or a republic (less blatant majoritarianism), but then scream about the “rights of the minority” when they don’t like what the majority has decided on.

    1. We also supposedly have a Constitution that is the law of the land and is very, very difficult to change within our representative democracy. But it turned out that the majority always wins against old pieces of paper.

      1. Yep, it was supposed to be a constitutional republic.

        But the majority doesn’t always win. Elite ruling classes are overriding the majorities of most Western democracies.

  12. I would say someone should name a sex toy after Ted Cruz, but I can’t imagine anyone wanting to put something with that name in their vagina.

    1. …or anyplace else.

      1. The Cruz Missile.

    2. Make it a butt plug.

    3. Well, it could be named The Donald, The Hillary, or – my fav – The Bernie. One the plus side, it is unisex. On the down side, application (repeatedly and with gusto) is obligatory.

      1. Feel the Bern is not a good slogan for a sex toy.

  13. “Ted Cruz thinks people don’t have a right to “stimulate their genitals.” I was his college roommate. This would be a new belief of his”–Ted Cruz’s college roommate. Laughed my ass off.

    http://theweek.com/speedreads/…..ocritical.

    1. Damn your nimble finger bones.

  14. The police power of the states is not unlimited and unless the legislation at issue serves a legitimate public health or safety purpose, the law should not be allowed to stand when properly challenged in federal court.

    This elides an important point: a state law that violates a recognized right and doesn’t serve a legitimate, etc. The federal courts are not a fourth branch of the state governments, empowered to review and overturn any law that they think doesn’t serve a legitimate purpose.

    the 14th Amendment does protect certain unenumerated rights, and among those rights is the right to privacy,

    Conflating sex toys and prescription birth control doesn’t work, IMO. One is, well, a toy. The other is a medical issue, where the right to privacy is long-standing and deeply entrenched.

    Is a ban on sex toys stupid? Of course. Is banning the sale of them a violation of fundamental rights? Maybe, but only if you read fundamental right so broadly that it would impinge equally on any and all commercial regulations. Which may be a libertarian thing, but isn’t jurisprudence in this country.

    The sex toy angle is a red herring. Don’t fall for it. If you buy the “constitutional” argument here, you are stripping away what’s left of state sovereignty. Which I, as a libertarian, believe is a mistake.

    1. So, no freedom to create rubber phallus art? Tell us about the stolen bases again, RC…

      1. So, no freedom to create rubber phallus art?

        Sure. 1A would protect that, thus satisfying the missing link that the state law has to violate a recognized right.

      2. So, is a giant spinning clay phallus on a potter’s wheel flinging Elmer’s glue all over the room art or not? My high school art teacher conceded the point.

    2. but only if you read fundamental right so broadly that it would impinge equally on any and all commercial regulations. Which may be a libertarian thing, but isn’t jurisprudence in this country.

      The problem with this law is that there really isn’t any reason behind it beyond “we don’t like sex toys”. And I would be okay with saying that doesn’t cut it, if the courts would then apply that to all commercial cases. Sadly, they never would. Instead, the law would get struck down because the courts would say to Texas, “but we do like sex toys” and strike it down on that basis rather than any broad commitment to individual rights and economic rights in particular. .

    3. Your status as ‘libertarian’ is iffy. In any event, state’s rights don’t exist. Only individuals have rights.

      1. You quit reading too early:

        Which may be a libertarian thing, but isn’t jurisprudence in this country.

        Did your lips get tired?

        1. So you mentioned individual sovereignty/rights as libertatian notion but then you say “as a libertarian”:
          you are stripping away what’s left of state sovereignty. Which I, as a libertarian, believe is a mistake.
          how is this not contradictory?

      2. Only individuals may have moral rights, but the states, in creating the federal government and ceding part of their (borrowed) sovereignty to it, assigned themselves certain explicit and implicit legal rights in its constitution. So, no. Maybe if you ever come to America and take a civics class to get citizenship, you can learn about these things.

        1. This idea is put forward often, especially by the left and democracy advocates, but makes no logical sense. It would only make sense if states were full formed voluntarily by their members. But then they wouldn’t be states any more, just private organizations. The nature of the state is inherently coercive, so sovereignty given to itself (or by government officials and legislators who make up the state) are always at the expense of individuals they rule over.

          1. Regardless, the point is that there are different sorts of rights; the 50 states have contractual rights in their relationship with the federal state, per the constitution. Had those rights not been promised as consideration for ratification, the federal state as we know it would probably not exist.

            1. Yes, and the states were formed voluntarily by their members. Each state ratified its own constitution, spelling out just which powers the state government would have. (i.e. which rights the citizens would cede to the government).

              The odd thing about governments is their control of territory. So even though there is a one-time opt-in for the population as a whole, there is no individual opt-out clause, other than pulling up stakes and getting the hell out.

        2. While you’re at it, check out Tara Smith’s ethics classes at UT Austin–or her books about Moral Rights and Political Freedom

      3. I stand with Cytotoxic on this. Victims of mystical brainwashing come from centuries of culture steeped in public torture by crushing the knees and execution by fire by way of persuasive argumentation. Arguments from authority of Mohammed or Jesus are hardly the stuff of an ethical framework grounded in the value of a life worth living. But America is a Big Circus Tent. The Republican Party, I hear, welcomes anyone who distinguishes right from wrong on grounds other than demonstrable fact, provided only that they be neither selfish nor saracen in outlook.

        1. We get it. You hate religion and are a bitter, raving, atheist.

        2. yup- and some people don’t need centuries of mystical brainwashing to be blithering idiots.

          Well done, Hank.

          1. FFS, don’t encourage him.

    4. What ever happened to 9A and 10A?

      1. The courts avoid those, because they present the issue of sovereignty (national v state v personal) a little too sharply. Best to use a meaningless term like “substantive due process”, that the courts can say means whatever they want it to say.

        To me, the defensible part of the argument for Texas here has to do with whether you think the central government is the best of all possible defenders of your rights and limited government principles. I don’t, so I don’t like it eroding the remaining shreds of state sovereignty.

      2. It would seem the 9th and the 10th amendments are in conflict at best. Does the 9th amendment even apply to the states without the 14th?

        1. The 9th:

          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          The 10th:

          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

          The 9th addresses only rights retained by the people. The 10th addresses powers reserved to the States or to the people. I don’t see a conflict, although I’m not sure what they mean by powers being reserved to the people, as in the context of the Constitution people have rights, and governments have powers.

          1. OK on that.

            I am still unsure the 9th can be applied against the states without the 14th.

          2. My thinking was if the 9thand 10th are not inconflict then the 10th simply does not apply in this case.

          3. Either that or people have rights OR governments have powers… It’s a tough call.

    5. The question of whether any piece of paper gives people the right to use sex toys is irrelevant. The question is whether government has been granted the power to limit the same of sex toys. The federal government does not have that power, and arguably neither do state governments, except under unusual circumstances

      1. The federal government does not have that power, and arguably neither do state governments, except under unusual circumstances

        That would depend on the content of the state constitution. That’s where the state reserves powers to itself.

  15. Guy on Twitter claiming to be Cruz’ college roomate says that Cruz was all about stimulating his own genitals back in college.

    1. So what were U doing 3 minutes before this post when Citizen Bones beat U 2 it?

  16. The problem always comes back to the fact that fuckos use the 14th Amendment when they SHOULD be using the 9th and 10th. The 9th, especially, is the keystone for the idea that our rights are unlimited and that government is our servant, not our master.

    1. Yes. Like I say above, the courts overturn these laws for the same stupid and shallow reasons the legislatures passed them. Neither the courts nor the legislatures seem to have any concern for or understanding of any larger principles of personal liberty. They just like or don’t like particular things and see the law as the means to get them.

    2. Pretty sure those got repealed by the FYTW Act back in the 1800’s.

    3. The problem is that the 9th and 10th only apply to the federal government. The 14th, via the P&I clause, is the one that applies the protections in the bill of rights to State Governments as well as the Federal Government.

      1. This.

    4. No one uses the 9th. I have not seen any substantial jurisprudence rely on it at all.

      The entirety of our legal system relies on legal positivism, which includes the Constitution itself permitting Congress to make i.e. posit laws, unbounded, and few understand or even accept the idea of negative rights.

  17. will no doubt lead to some very clever jokes on The Daily Show.

    Not likely

    1. Is the new guy better than the old one?

      1. It’s been a long time since I’ve seen a headline claiming that the Daily Show LITERALLY DECAPITATED a strawman, so I’m guessing no

    2. Yeah, why would they start now?

  18. This isn’t the worst thing Cruz has done. As noted above, it was kind of his job to defend this. OTOH, he could have stepped down and had someone else do it. OTOOH he might not be where he is today if he did that.

    1. This isn’t the worst thing Cruz has done.

      And is exceedingly mild/focused relative to many opponents. Texas banning sex toys would certainly be a bad thing but being forced to pay for them under BernieCare would be worse.

      1. Gosh… it almost makes you wish there were an alternative party, one not based on communist Stalinism or christian Nationalsocialism… Imagine a party dedicated to individual rights, choice, freedom, where your ballot would pack ten times the law-changing punch as a vote flushed down the toilet of entrenched collectivism…

  19. I don’t see what the point of having the law is.

    Houston has a sex shop on about every corner and numerous “massage parlors ” in between.

  20. Want to meet a girl? Welcome to http://goo.gl/mxiosK
    the Best adult Dating site!

    1. Given the topic of the article, maybe a girl would want to meet me!

      Paaahaha, nah, not likely.

      ‘When I was a kid, I was so ugly my hand would fall asleep.’ -Rodney Dangerfield (RIP)

  21. Well, that was his job at the time, to argue for his client, the great State of Texas.

    Now he seems ok with decriminalizing marijuana at the federal level and let the States deal with the matter.

    And that’s why I dislike him the least.

  22. Given your lack of knowledge of the Constitution you probably would not start with the question whether the gov intervention violates personal and economic liberty. Another question would be whether the particular state or federal constitution permits the intervention.

  23. Cruz’s argument in this case will be instantly familiar to every student of constitutional law

    As any strategic communications and theater major could tell you…

    1. I swear to god the bylline on this said ENB a few hours ago. I did have a drink earlier…

  24. “There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship,” the Cruz team argued.

    That shows who Ted is using his dildo on.

    Someone needs to explain to him that dildos can be used in interpersonal relationship too.

  25. Sometimes i watch two broke girls cuz the chicks are hot. Does this make me a bad person?

  26. Why?
    Because he’s a Jeebus freak?

  27. caveat, i alway root for the zebra in nature shows.

  28. his position on sex toys comes as little surprise

    We don’t know his position on sex toys. We know the argument he made in court on behalf of his client. Conflating the two is lazy and stupid, Mr. Root.

    1. Seconded. The articles cited even make it clear that he was none too thrilled with the prospect of having to argue in favor of a dildo ban in front of the Supreme Court. It also makes it clear that the call was not his, it was his boss’s call.

    2. Likening the relationship between an AG and the state to an attorney client relationship is wrong. The AG is part of state government and his duties and obligations are different. Likewise, there is no presumption of innocence or beyond a reasonable doubt criterion for laws. If anything, the presumption for laws should be: unconstitutional until proven otherwise

      1. I beg to differ. A quarter-century of court work has shown me that trial attorneys and prosecutors rarely have any interest in securing individual rights. I suspect their pecking order is instead determined by scoresheets.

  29. Everything’s bigger in Texas…

  30. Well duh! Meet the Red Republican party that revived the Tariff of Abominations into Civil War, banned diaphragms and condoms for half a century, is even now struggling to forbid birth control pills and force women to reproduce at gunpoint and ban marijuana for much the same reason it seeks to establish a christian nationalsocialist version of the Islamic State. Totalitarian theocracies are incompatible with human happiness, and the quickest road to misery is replacing freedom with coercion. Better Dead than Ted is summed up in Ram Johnston’s “Life Begins at Erection.” With enough Libertarian spoiler votes cast by rational defectors, God’s Own Prohibitionists will end by election.

    1. FFS, get some help. You are not mentally healthy.

  31. The difficulty of the argument that the 14th amendment protects “unenumerated” rights is that the interpretation contradicts the intent of the 10th amendment, “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”. If a power is not delegated by the Constitution it is “unenumerated” and is therefore “reserved” to the state. A ban against sex toys is extremely silly, but it does not demean liberty to honor a state’s tenth amendment right to make law not covered in the Constitution.

    As libertarian, I appreciate the difference between federal authority and state authority, the limits that the Constitution places on Federal authority, and opportunities for the state populations to pass their own laws not enumerated by the Constitution. As an individual if I don’t like certain unenumerated laws in one state I can move to another state. I have the liberty to make the choice to live in a state that best represents my own individual interests.

    I do have a question though, as “solicitor general” wouldn’t Cruz have been obligated to defend a state law? He is certainly not Eric Holder so it shouldn’t stretch the imagination to believe the guy would abide by his oath of office. If he was obligated to defend the law isn’t it somewhat disingenuous to hold him personally responsible for its existence?

    1. Yes he would, whether he believed in it or not.

    2. Yes he would, whether he believed in it or not.

      1. Like Holder did?

  32. So… what is Trump’s stance or position on dildos? Hillary’s?

    1. Wide. In both cases.

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  34. It’s worth pointing out that Cruz was also the Attorney General of Texas when Lawrence v. Texas was heard in the SCOTUS. He didn’t personally argue that one in front of the SCOTUS, but it was his team.

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  36. It is the state attorney general’s job to defend the law of the state to the best of his ability whether he agrees with it or not. I think Cruz like did believe in the law, but it does not matter, he had to defend it if he did not.

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  39. The 14th Amendment is not a limitless fount of unwritten rights…

    No, that would be the 9th Amendment.

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  45. Ted Cruz is a big Dildo himself. Glad he dropped out of the race for 2016. The plaintiffs in the sex device case contended the state law violated the right to privacy under the 14th Amendment. They argued that many people in Texas used sexual devices as an aspect of their sexual experiences. They claimed that in some instances one partner in a couple might be physically unable to engage in intercourse or have a contagious disease (such as HIV), and that in these cases such devices could allow a couple to engage in safe sex.

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