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and it is not a blank check authorizing federal judges to overturn every state law they happen to find obnoxious or outdated.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.