Law: July 2005 Archives

I wanted to point out an interesting article at the Baltimore Sun on legalizing prostitution. The author makes a fairly good case, at least from a utilitarian point of view, that prostitution should be allowed simply because fighting it is a waste of time:

...Legalizing prostitution would not be a moral endorsement of paid sex, any more than the First Amendment is a moral endorsement of supermarket tabloids. It would just be a recognition of the right of adults to make their own choices about sins of the flesh - and of the eternal futility of trying to stop them.

Before he continues his crackdown, Mayor Daley might reflect on the wisdom of one mayor of New Orleans. "You can make prostitution illegal in Louisiana," he said, "but you can't make it unpopular."

The hat tip for this goes to Gadfly's Muse, who argues, in part:

Those who are sometimes called strict constructionists call it judicial activism when a judge first enumerates a right that is not explicitly formulated in the Constitution. The standard liberal response to this is that the 9th Amendment allows for rights that are not enumerated in the Constitution. Thus there are rights that are not listed, and therefore it's not judicial activism for a judge to proclaim what they are. This seems to me to be a fallacious move.

The 9th Amendment acknowledges the existence of rights that the Constitution doesn't enumerate. It doesn't say what they are. It's an interesting case of indeterminacy in law, because it declares that something is true while not filling out any details at all about what it makes legally true. So the right for gay people to engage in sodomy, for instance, is not in the Constitution on the grounds that the Constitution admits that there are some rights that aren't enumerated. The Constitution doesn't just leave it open that there are rights that it doesn't cover. It says that there are such rights. That's what's wrong with what some conservatives say. The rights explicitly in the Constitution aren't the only ones we have. Still, the Constitution doesn't say what those rights are, so it is going beyond the Constitution to claim that some purported right is one of the ones the 9th Amendment might refer to. It's therefore judicial activism.



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