andie nachgeborenen wrote:
>This is gonna get esoteric, but the commerce clause issue is a red
>herring. The 11th Cir case also involves state regulation of sale of
>sex toys, and is on all fours with Griswold, which involved state
>reg of sales of sex toys. I never said and wouldn't argue for a
>narrow reading of the commerce clause, which I think is a broad
>grant of Congressional power, and of course I agree that outside of
>the individual rights area, the states have virtually plenary powers
>to engage in social and economic regulation. But this, like
>Griswold, is an individual rights case.
>
>It touches on the fundamental privacy rights that protect consensual
>sexual activity among adults, initiated in Griswold, extended in
>Roe/Casey/Webster, and going back to the 1920s cases giving people a
>fundamental liberty interest in their families. After Roemer v.
>Evans and Lawrence v. Texas (equal protection cases rather than due
>process cases, but highly relevant), I can't see how there can be
>any sensible distinction to be drawn drawn between a condom and a
>cock ring, a diaphram or a dildo.
>
>As you know I am way more in agreement with you about judicial
>restraint than 99% of left wing lawyers, I think Learned Hand and
>Holmes got it about right, but that also means respect for
>precedent, and under the lines of cases cited, I can't see any other
>outcome that is reasonable. Your distinctions won't wash for the
>reasons satted in my previosu post.
>
>jks
>
>
>
>Nathan Newman <nathanne at nathannewman.org> wrote:
>
>----- Original Message -----
>From: andie nachgeborenen
>>So, Nathan, on your reasoning, the government can regulate sexual
>>conduct of post-menopausal women, women with hysterectomies,
>>and men with vasectomies, since their sexual actibity is not related to
>>childbearing, and it can also regulate masturbation and indeed loveless
>>sex that does not involve an enduring bond with another person.
>>Frankly, counsel, I don't buy it.
>
>Putting words in my mouth, counsel, since to be more specific, the issues
>at stake in Griswold and the Alabama decision were both regulation of
>COMMERCE involving items used in relation to sex. Because of the need to
>control whether one is forced or denied the ability to become a parent, the
>Supreme Court held that such commerce could not be unduly burdened in the
>case of Griswold-- although contraception is still "regulated", so
>"regulation" of commerce is fair game across the board, whatever privacy
>rights are at stake.
>
>Alabama's decision doesn't regulate any non-commercial activity. Folks are
>free to use sex toys as they wish. They just can't buy them in Alabama.
>So the question is whether the right to use sex toys implicates the same
>fundamental family rights at stake in Griswold. While an argument might be
>made, in an expansion of Lawrence, that certain kinds of sexuality require
>additional purchases to achieve fulfillment, but I don't think that even
>Lawrence, a decision about non-commercial acts in the bedroom, require by
>extension the government to deregulate all commerce involving anything
>having to do with sex.
>
>I'm old fashioned-- literally in the legal sense. I don't like courts
>taking on any power to second-guess legislative decisions involving
>regulation of commerce in the name of "due process" or a! ny other concerns.
>Lochner got us full-scale court assaults on progressive legislative
>regulation of the economy, and we already see "takings" and other rightwing
>tropes, including "free speech" claims involving Internet commerce, ready
>to return us to that era of court-enforced deregulation.
>
>Sexuality is a pretty big area-- if all commerce involving it cannot be
>regulated, that's a big frigging truck for deregulatory court activists to
>strike down progressive legislation. Are minimum wages at Hooters Bars
>therefore an illegal enfringement on consensual sexuality, based on your
>interpretation of how the Alabama decision should have come out?
>
>Nathan Newman
>
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