Sex Toys - A Right to PROPERTY, not a Right to Privacy

What's one of the biggest problems with a Constitution that spells out what rights we have? If written incoherently^note, people will begin to believe that anything not explicitly prohibited is allowable and not explicitly enumerated as a right can be prohibited or restricted. The first isn't necessarily a problem, but the second is.

Case in point: Federal Court OKs Ban on Sale of Sex Toys

A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy.

In a 2-1 decision overturning a lower court, a three-judge panel of the 11th U.S. Circuit Court of Appeals said the state has a right to police the sale of devices that can be sexually stimulating.

The court may be correct in it's interpretation of the Constitution (I expect to see something on the The Volokh Conspiracy discussing that aspect, if you're interested). That doesn't matter to me.

The American Civil Liberties Union, which represented merchants and users who sued to overturn the law, asked the appeals court to rule that the Constitution included a right to sexual privacy that the ban on sex toy sales would violate. The court declined, indicating such a decision could lead down other paths.

Another bad symptom of a constitution is when interest groups think they can exert legal pressure to get "rights" recognized.

"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

Attorney General Troy King said the court "has done its duty" in upholding the law.

The problem with explicit, enumerated rights ties in with two other things. One is the most fundamental problem with democracy: your life, property, and liberty are at the mercy of the majority. The other is a deep-seated fear of extremism in defense of principle. Billy Beck has said:

I don't care where it is: whenever I see a reference to "ideological purity", I look around to make sure that my pistol is within reach. In every single case that I can recall (although it's tough because I've seen a million of 'em), that thing is directly reducible to a complaint against fidelity to principles. It's a smear, just like complaints about "extremism". I could expound in this space, but it's not necessary because I already said everything there is to say about this subject here, over six years ago.

Whether or not you think "adult incest, prostitution, obscenity, and the like" are beyond the pale is irrelevant. Thinking you have the authority to keep others from engaging in those acts is. Why? Because you own yourself and no other. We are not your slaves to dance at the whim of the Conventional unWisdom.

Sherri Williams, an adult novelty retailer who filed the lawsuit with seven other women and two men, called the decision "depressing."

"I'm just very disappointed that courts feel Alabamians don't have the right to purchase adult toys. It's just ludicrous," said Williams, who lives in Florida and owns Pleasures stores in Huntsville and Decatur. "I intend to pursue this."

I wish you victory, Ms. Williams because you are on the right side. In the same breath, however, I have to say the battle you'll wage will be on the grounds of their choosing and will necessarily be an uphill fight. By opposing them through the courts on Constitutional grounds, you grant them the first victory: the understanding that you have to petition the government to get the government off your back.

U.S. District Judge Lynwood Smith Jr. of Huntsville has twice ruled against the state law, deciding in 2002 that the sex toy ban violated the constitutional right to privacy. The state appealed both times and won.

Shaky foundations beget inconsistent results.

The state law bans only the sale of sex toys, not their possession, the court said, and it doesn't regulate other items including condoms or virility drugs. "The Alabama statute proscribes a relatively narrow bandwidth of activity," U.S. Circuit Judge Stanley F. Birch Jr. wrote.

Judge Birch is saying

• A little theft is OK.
  
• A little aggression is fine.
  
• Getting locked up for a few hours is no big deal.

He has conceded that if you have ten children, the government can look you dead in the eye and take one of them because it's only a small part of your overall life.

Here's a question I'd like posed to this bastard and anyone who agrees with him:

• When you possess something, do you have the right to trade it for something else someone owns?

If I cannot trade my belongings to someone else voluntarily as I see fit, then the value of ownership gets Orwell's boot print tattooed all over it. The nature of the property is trivial and pointlessly diverts attention away from the principles at hand. You can make a "sex toy" out of any conceivable object; these things are just explicitly for those purposes in order to profit from people's natural desires.

Circuit Judge Rosemary Barkett disagreed, saying the decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."

Copyright 2004 The Associated Press. All rights reserved.

Here's what the judges are missing.

You own yourself and your property. You are the king, emperor, judge, jury, and executioner on that property. If you want privacy, you should be left free to build up whatever means you think will contribute to that privacy. If you want to be public, then you can have a house with glass walls. The right isn't to privacy; it's to your property and what happens on it.

I understand a right to privacy is someone a lot of libertarians instinctively agree with, but it's an abstraction from the deeper concept that should be defended. Being private means being left along by others, including the state. That notion is utterly reasonable.

Law.com: 11th Circuit Nixes Sex Toys, Sex Rights

The split panel upheld an Alabama law -- nearly identical to one in Georgia -- that made the sale of sex toys a crime punishable by up to a year in prison.

The criminalization of people voluntarily pleasuring themselves is one of the ugliest ways the state intervenes in our lives. A year in jail for selling objects that individuals want to buy to make them and their partners happy. It's foul.

The decision extends an emerging division in the court over sexual rights, with Judges Stanley F. Birch Jr. and Rosemary Barkett leading opposing factions.

This is a proxy battle using wiffle bats.

Birch maintains that although the U.S. Supreme Court last year struck down a Texas law criminalizing homosexual sodomy, the justices have not decided fully that sexual privacy is a fundamental right protected by the Constitution.

Barkett claims that the court is refusing to apply the sodomy decision to laws that violate people's right "to be left alone in the privacy of their bedrooms."

Last week, the full 11th Circuit split 6-6 in denying reconsideration of a decision that upheld a Florida law prohibiting homosexuals from adopting children. Birch wrote that while he thought the law was "misguided," since there was no "constitutional liberty interest in private sexual intimacy," the court must uphold Florida lawmakers' right to exclude gays and lesbians from adopting.

You see the problem here? These people are refusing to turn off a road because the warning sign they just passed didn't use the government-approved layout warning them of a cliff ahead. That's the folly of a written Bill of Rights.

Just after the law went into effect in 1998, a group of plaintiffs sued then-Alabama Attorney General William H. Pryor Jr., who is now an 11th Circuit judge. They claimed the new law violated a host of civil rights, including ones guaranteeing free expression, due process and safety from unreasonable government searches of homes.

You see the problem here? They aren't attacking this on the grounds of property rights. Of course, that's mostly because that quaint notion has been obliterated over the years by the government and any lawyer will laugh you out of their office if you assert an absolute legal right to your possessions.

Without a fundamental right at stake, Birch wrote, only the people of Alabama could decide "that a prohibition of sex toys is misguided, or ineffective, or just plain silly ... ."

Copyright 2004 ALM Properties, Inc. All rights reserved

Hopefully, Dear Reader, you'll understand the complete rage I feel towards this by now.

Footnote
Some would believe a coherent Constitution is a contradiction. I disagree. If through unanimous consent a group of people decided to live under a pact to never aggress against one another, to respect an absolute individual right to their respective properties, and to allow those who've agreed to leave the agreement as they wish, then such a "legal document" would be consistent and moral.

Posted by Drizzten at July 29, 2004 09:59 AM