<DIV>Yes. Sorry. This is what lawyers do. That is part of the reason everyone hates us. Our own traditions are unusually complicated because of the interplay of the Constitution and the statutes, and the state legislatures and Congress. But you won't find the law in France of Germany to be transparant. And common law in England, they still cite statutes from the time of Eliz. I. Also, in the first para, I should have said that Griswold involved state regulation of sales of contraceptives, not sex toys, My bad. jks<BR><BR><B><I>Doug Henwood <dhenwood@panix.com></I></B> wrote:
<BLOCKQUOTE class=replbq style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff 2px solid">Are other national legal traditions this inbred and scholastic? - Doug<BR><BR><BR>andie nachgeborenen wrote:<BR><BR>>This is gonna get esoteric, but the commerce clause issue is a red <BR>>herring. The 11th Cir case also involves state regulation of sale of <BR>>sex toys, and is on all fours with Griswold, which involved state <BR>>reg of sales of sex toys. I never said and wouldn't argue for a <BR>>narrow reading of the commerce clause, which I think is a broad <BR>>grant of Congressional power, and of course I agree that outside of <BR>>the individual rights area, the states have virtually plenary powers <BR>>to engage in social and economic regulation. But this, like <BR>>Griswold, is an individual rights case.<BR>><BR>>It touches on the fundamental privacy rights that protect consensual <BR>>sexual activity among adults, initiated in Griswold,
extended in <BR>>Roe/Casey/Webster, and going back to the 1920s cases giving people a <BR>>fundamental liberty interest in their families. After Roemer v. <BR>>Evans and Lawrence v. Texas (equal protection cases rather than due <BR>>process cases, but highly relevant), I can't see how there can be <BR>>any sensible distinction to be drawn drawn between a condom and a <BR>>cock ring, a diaphram or a dildo.<BR>><BR>>As you know I am way more in agreement with you about judicial <BR>>restraint than 99% of left wing lawyers, I think Learned Hand and <BR>>Holmes got it about right, but that also means respect for <BR>>precedent, and under the lines of cases cited, I can't see any other <BR>>outcome that is reasonable. Your distinctions won't wash for the <BR>>reasons satted in my previosu post.<BR>><BR>></BLOCKQUOTE></DIV><p>
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