Doug Henwood <dhenwood at panix.com> wrote:Are other national legal traditions this inbred and scholastic? - Doug
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.
>
>
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