Assuming that Justice Clinton is Bill Clinton, is it not ironic that your theoretical Court Opinion that one of the Justices who overturn the previous decision (I'm assuming Spitzer was convicted on prostitution charges) was caught in a similar situation in office?
 

i'm sure that prof. paulsen is having a field day over the inclusion of "justice clinton"; however, i would submit that inasmuch as bill clinton has been disbarred, i would assume he is not eligible to sit as a member of the supreme court. on the other hand, i understand that hillary is still a member in good standing; therefore, she could be the justice referred to, which assumes an obama presidency inasmuch as i doubt hillary (or bill for that matter) would be nominated by mccain. on the other hand, it could be any other clinton who happens to be a member in good standing with any bar association.
 

Cf. Lawrence, 539 U.S. at 578: "The present case ... does not involve public conduct or prostitution."
 

One need not be an attorney to be a Supreme Court justice, so I see no reason why a disbarred attorney could not be one. On another subject, although, as a legal matter, I agree with the opinion in Spitzer v. United States because the case involved consenting adults, as a moral matter, I think that for a 48-year-old man to have sex with a 22-year-old prostitute is for him to take advantage of her and is repulsive.
 

Let's keep sight of what's really going on here -- this is an attack on Lawrence, not a real argument in favor of legalizing prostitution.
 

The use of Justice Clinton is cute if a bit snide. I second the fact that nearly anyone can be confirmed as a justice; one need not be a lawyer, for instance.

I personally think a serious case can be made (and know of a mock opinion voicing the point, one written before Lawrence) that prostitution is a liberty interest with constitutional dimensions.

And, the fact sale is involved is not a bar -- see, e.g., Carey, involving sale of contraceptives. One ruling involving sex toys wrongly suggested it did matter.

All the same, the economic component of prostitution along with the gender issues do raise some serious rational basis reasons for banning the practice. Lawrence specifically put it in another category and not arbitrarily so.

This includes (see Balkin's discussions) societal legitimacy. Those who want to criminalize homosexual relations are simply not on the level of those who think there is a rational basis for prostitution laws. Nor did states over the last two decades slowly legitimatize prostitution relations as it did homosexual couples (e.g., supporting same sex adoptions, domestic relationship rights, anti-bias laws, etc.).

Lawrence did not use the same level of scrutiny as Roe (or even Casey), so purchase of abortion services (which might have some problems, but is quite different from prostitution in various ways) is not quite on point either.

Finally, Spitzer might be guilty of some financial crime, like "structuring" which is a separate matter.

Again, honestly, I think prostitution should be legal, and various blogs over the last few days (some feminist leaning) agree. But, this mock opinion is a bit too cute.
 

Back in the fall of 1952, the late Prof. Thomas Reed Powell described in his ConLaw class whether the Mann Act was violated as follows: "It depends upon whether it [the alleged act] was for pure pleasure or purely for pleasure." Keep in mind that the sport of baseball was not considered to be commerce, even though money was involved, in addition to extensive interstate activities. (Justice Thomas' originalism might agree with this, especially since baseball was not a sport at the founding.) Spitzer's trip to D.C. appears primarily to have been to testify before Congress. Thus, the potential Mann Act act appears to have been incidental only to his trip from New York to D.C. Call this pure hypothesis on my part that his trip was not purely for pleasure (e.g., testifying before Congress), although he got a little on the side. Shouldn't the world's oldest profession be accorded the same courtesy and precedent as baseball? Can the Mann Act survive without interstate commerce?
 

Assuming that Justice Clinton is Hillary, this gives new meaning to being an enabler...

In any case, this hypo serves as an excellent backhanded critique of the Lawrence decision which Justice Scalia could have written.
 

I'm surprised the decision omits the important stepping-stone precedent of Dildo v. Texas (2009).

But of course, if it had, then the "satire" goal of your post would have imploded. So perhaps I'm not surprised after all.
 

Unless Texas wins en banc, it'll be the petitioner in the sex-toys case. (Plus it's a non-criminal case, so it'd be Earle v. PHE, Inc.--can't sue the state directly, 11A and all that.)
 

So if Justice Scalia had written the Lawrence decision focusing upon the slippery slope connection of two alleged strange bedfellows, which bedfellows among the other justices might have joined in his decision? Might such a Justice Scalia decision serve as a precedent against a solo non-public masturbater? It was George Carlin who pointed out that if such a solo act were illegal, people would take the law into their own hands. Justice Scalia's response to Carlin, off hand, might be that with two there's a conspiracy, and everybody knows how evil conspiracies can be.
 

Unfortunately, markets in real life don't operate the way they do in textbooks.

The law exists to do more than to facilitate 'mutually beneficial transactions'.
 

Justice Thomas' originalism might agree with this, especially since baseball was not a sport at the founding.

There's a least one reference to "base ball" from 1774. Doubtless it referred to something more like cricket or rounders, but if an originalist can go from muskets to Uzis, this shouldn't pose any problem.
 

Unless Texas wins en banc

Which I'm kind of expecting, given where we are.

Appellants filed their responses opposing review March 10; the same day, a "revised" version came down, but I haven't correlated it w/ the original (such an annoying habit of the judiciary -- say up front in a footnote *what* is revised).

And of course it's Justice Hillary Clinton, silly people. Obama would happily do that to keep her from running for the nomination again in 2012.
 

At $1000+ per hour, it seems to me that she took advantage of him.
 

Shag from Brookline,

The statute is violated if the defendant knowingly induced someone to cross state lines to engage in an illegal sexual act. Whether Spitzer was crossing state lines to do so is irrelevant so long as "kristen" was.

Orin Kerr
volokh.com
 

The statute is violated if the defendant knowingly induced someone to cross state lines to engage in an illegal sexual act.

Right. Or as the old shaggy-dog joke has it, transporting gulls across state lions for immortal porpoises.
 

The point is he broke the existing law, and unlike you or me, he is the Governor and chief law enforcement officer of NY. What does a rant about prostitution have to do with anything, except to confuse what is at stake?
mike in Miami
 

Further with respect to Justice Thomas' originalism, especially regarding the commerce clause, I doubt that he buys into Chief Justice Marshall's Gibbons v. Ogden view that commerce includes intercourse. I say this tongue in cheek, of course - my tongue in my cheek, that is. Further, the Mann Act discriminates by gender unless equally applicable to all sexes. Isn't there a question as to who was the inducer and who was the inducee?

When was the last time a Mann Act allegation violation went to court? Is there a prosecutor or defense attorney out there who has been involved in such a case (but not as a party) in the past 20 years?

By the way, the late Prof. Powell had a much better sense of humor than most ConLaw professors today.
 

Griswald held hetero couples could use prophylactics if they so chose. Roe held women could terminate an unwanted pregnancy. Bowers sactioned police entering homes to arrest homophiles, and finally Lawrence decided the Bowers case was wrong.

Only Griswald, Bowers, and Lawrence involved no money. Yet, the Supreme Nines took until 2003 to acknowledge barely that their 1986 Bowers was an extreme intrusion into privacy and a double standard in light of Griswald, Roe, etc. I doubt the Supreme Nine today would vote the same. If money were added, well, no way the same.

Perhaps notions of "consistency," "coherency," "logic," and predication are too remote for our Supremes. They seem to reach for the stars, foreign ideas, and violate ordinary language with remarkable success. Perhaps, the problem is the lack of language and logic courses in law schools. Reading the justices' casuistry, they either know it, and commit every fallacy knowingly, or don't know it, and their decisions reflect it.
 

I don't think this satire really works, because there are obviously all sorts of rational basises (bases?) for banning prostitution besides moral condemnation. However, Lawrence does raise questions about bestiality, necrophilia, and statutory rape laws.
 

The condumnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.

I'd expect a better typo in an article like this. Why not "condomnation"? Too subtle?
 

Actually the Lawrence majority is clear that money was NOT involved and that if it was, they might have ruled differently.
 

When was the last time a Mann Act allegation violation went to court?

At least 6 such cases have gone all the way to the Supremes. Wiki summarizes them here.
 

Let's not forget the bottom line here. Prof. Paulsen was offended that the Supreme Court ruled that the government couldn't throw gays in jail because of who they had sex with.

In other words, he is using condemnation of prostitution as a backhanded way to justify condemnation of gays and lesbians, i.e., bigoted homophobia.

It stinks, and he should be called on it.
 

Good satire should be a little more believable. The illegality of prostitution is justified by its secondary effects, not because of its immorality. Unless you think lewd conduct is protected by Lawrence, Lawrence is simply inapposite.
 

I think the comments to Professor Paulsen's post well make (what I take to be) his point. One may argue that Spitzer is distinguishable from Lawrence or one may argue that the reasoning of Lawrence should govern Spitzer. But neither of these arguments has any connection to the Constitution because Lawrence has no connection to the Constitution, other than having been decreed by Justices appointed and confirmed according to its provisions.
 

"I think that for a 48-year-old man to have sex with a 22-year-old prostitute is for him to take advantage of her and is repulsive."

He paid her 4300 friggin dollars for crissake! Tell me again... WHO "took advantage" of WHO???
 

He paid her 4300 friggin dollars for crissake! Tell me again... WHO "took advantage" of WHO[M]???

Well, she certainly didn't take advantage of him, as he was an intelligent and knowing purchaser of her services. But 22-year-olds are still children in some ways, and a girl (I use the word deliberately) who goes into prostitution -- high-priced or not -- is likely to have psychological problems. I think that we ought to have compassion for her, and that Spitzer was exploiting a vulnerable young woman.

Perhaps, however, Spitzer deserves compassion too, as his behavior doesn't seem particularly sane. His risk-taking resembles a symptom of the manic phase of bipolar illness. But I know next to nothing about Spitzer and have no idea whether he has exhibited such symptoms before.
 

As I read somewhere on another blog, why is it that:

Two people have sex, both are paid, it is taped, and later the tapes are marketed and sold as a commercial product and that transaction is legal;

As compared to

Only one person is paid for the sex, and that transaction is illegal.

Seems to me every escort service “John” should bring a video camera and claim he is volunteering his services.
 

Garth said:

MLS,

You are blatantly wrong. This has everything to do with the fact that the Bill of Rights was intended to keep the government out of certain private, consensual activities.

It was.

That we are only now getting around to weeding sanctimonious morality out of the law is not argument that it shouldn't be done.



I stand corrected. I have reviewed my constitutional history and now see that Hamilton clearly referred to the right of the Governor of New York to make appointments “closeted in a secret apartment with at most four, and frequently with only two persons.” I don’t know how I missed the obvious sexual innuendo, particularly since it is smack in the middle of Federalist 69.

Now that the scales of sanctimonious morality have fallen from my eyes, it is apparent that the Constitution protects the right to abortion, sodomy, gay marriage and prostitution. Also bigamy, pornography, drug use and smoking. Unless those are based on the non-sanctimonious type of morality. Sometimes it is so hard to tell.

I can hardly wait for Justice Clinton to enlighten me.
 

Per Mark Field and Dilan, let's be fair. His hatred (see his mock opinion in Balkin's book) of Roe also factors in here.

A search of The Federalist will lead to a couple references to "private" rights, John Adams honored the rights of private life in the development of a moral people, invasion of the privacies of life was a core concern (see, e.g., fear of general warrants and quartering), etc. Thus, it was an essential liberty, secured at least by the 1st, 3rd, 4th, 5th and 9th (and probably the 10th) amendments. And, toss in the 2A, since arms secures our rights from invasions.

As to the 14A, invasion of privacy in sexual relationships was a core evil of slavery. Equality also is sorta in the Constitution, and anti-homosexual laws harms that as well. Privacy and equality were both referenced in 19th century opinions.

Finally, a 22 year old is still a child in many ways?! I guess we have loads of child brides (a few in my family, natch), huh? Let's not forget those May/December marriages!
 

Joe, how adult were you at 22? Unless you're not much older than that now, an honest answer, unless you're exceptional, would probably be "not very." Remember, I'm not talking law right now; I'm thinking of the psychological implications of a 48-year-old man having sex with a 22-year-old woman.
 

Garth, I favor legalizing prostitution, at least for 21-year-olds, and believe that the Constitution demands it. I also agree with everything you say in your comment; as I said, I was not talking about law. I still think that Spitzer, unless he suffers from bipolar illness and was in the throes of a manic phase, exploited the young woman and engaged in morally reprehensible behavior.
 

Garth, I agree that it just as likely that Spitzer merely enjoyed casual sex. I have no evidence from before this episode that Spitzer is bipolar; I merely raised the possibility because symptoms of the manic phase can include reckless behavior, extra-marital sex, and overspending of money. But sane people, obviously, also engage in all those practices.
 

Consider the age difference in this context:

A wealthy 90 year old man marries a beautiful 30 year young trophy wife.

Question: How many times does 90 go into 30:

Answer: Fractionally.

But is age the issue here or the fact that Spitzer is a democrat? Let s/he who has never sinned, cast the first stone? Now how many of you critics voted for George W, twice?
 

Garth, I agree that Spitzer should not have resigned. If this incident has involved a European politician, it would have been on the back pages, because people are more grown up in Europe; if Spitzer had not resigned, it might have started to make politicians' personal conduct less important here too. (Perhaps his resignation was part of a plea deal offered by Republican prosecutors who wanted to forced him out.) Of course, even though I did not want him to resign, I could understand not voting for him again because of his hypocrisy -- unless he learned something from the experience and ordered that the prosecution of prostitutes in New York cease.
 

Harvey Silverglate's Op-Ed in today's Boston Globe titled "Spitzer's legal minefield" spells out the potential legal obstacle course Spitzer may face at the federal level. Here's the closing paragraph:

"In cases like Spitzer's, the pliability of federal law won't generate much outrage. Many look forward to seeing the arrogant governor get his comeuppance. But there is good reason to fear these weapons at the Department of Justice's disposal. Anyone in the daily commerce of professional life is vulnerable."

A word to the wise from a civil libertarian.
 

We don't live in Europe. Overall, it is quite pragmatic to think ES in particular had to resign. A different public figure who hired a prostitute very well could be different.

The guy prosecuted prostitutes. He had a rep as a sanctimonius prick who already had a rough beginning as governor, partially because of a controversial move by some underlinings involving the soon to be second in charge (the Republican head of the state Senate). He earned his chops as a law enforcer reformer. He already had a bad relationship with the legislature and fiscal community, so had little breathing room as is.

Moralistic concerns surely factor in here, but that is not the only problem. He had to resign because he was a reckless hypocrite who didn't have the room to ask for a pass here. This doesn't mean his targeting shouldn't get us nervous. It just means that yeah life is sometimes unfair, especially when we tempt fate a bit too much.

I'm mostly on the same page with Garth, however, on the age thing. At 22, you often have graduated college, might be on your own, have a job, and yeah, are probably sexually active. And, part of that is growing pains, and often some relationship with an older partner.

But, ES wasn't having sex with an intern or aide here. He bought the sex. Older employers exploit labor all the time, I guess, but to be morally offended about the age difference in this respect -- getting a young thing seems a key point of buying it -- seems a bit off.

Esp. for someone who speaks of consenting adults (are we talking 30 year olds?) and legalized prostitution.
 

to be morally offended about the age difference in this respect ... seems a bit off. Esp. for someone who speaks of consenting adults ... and legalized prostitution.

There is an inconsistency here only if one believes, as too many people do, that what is immoral or bad for you should necessarily be illegal. One can favor the legalization of prostitution, drugs, abortion, etc., without endorsing them.
 

Of course both tobacco and booze have been legal for a long, long time. Booze is a drug, in fact my personal drug of choice, but in moderation. I don't endorse either tobacco or booze for others, but I should have the right to choose for myself, even if smoking and drinking can be bad. (Full disclosure: I do not specialize in DUI defense.) I once asked (tongue in cheek) what was the difference between a libertarian and a libertine. A wiseguy responded: "The libertine gets laid."
 

I take that point about finding things that should be legal repulsive (still think prostitution is different than a different sort of relationship in this respect) though I do wonder what is "adult" enough for you.

25? She easily could have been 25. Or is it all twenty-somethings? These days, many still are at home etc. Sorry, that is just too far for me.

And, maturity often isn't an age thing ... if we really want to be fair here. Spitzer is 48, but was more reckless and immature than many twentysomethings.

Repulsion is a personal sentiment, so I can easily disagree respectfully with you on this issue. Anyway, a pretty lame piece led to interesting comments ... cheers!
 

Whether the hypothetical opinion was intended as satire or not, it represents a plausible extension of the reasoning of Lawrence v. Texas. The contours of the personal autonomy and privacy interests embaced within the Lawrence concept of personal liberty are indeed being litigated in state and lower federal courts.

The U.S. Eleventh Circuit and Fifth Circuit Courts of Appeals have reached different conclusions about the effect of Lawrence upon state statutes criminalizing the sale of sex toys. If the Fifth Circuit does not grant rehearing, that intercircuit split may reach the Supreme Court.

With regard to prostitution, a divided Supreme Court of Hawaii upheld that state's prostitution statute agaist a claim, based in part on Lawrence, that the statute as applied violated the constitutional right to privacy. The dissenting justice wrote:

"The uncontroverted evidence in the present matter demonstrates that Romano was held criminally accountable for wholly private, though admittedly sexual, behavior with another consenting adult. As its majority noted, Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent. 539 U.S. at 578. Neither the present matter nor Lawrence concerned 'persons who might be injured or coerced or who are situated in relationships where consent might not be easily refused.' See id. And, as I have emphasized, this case does not implicate public solicitation, streetwalking, or salacious advertising, which are not private activities. Rather, the present record reflects that the charged transaction could not conceivably have hurt anybody other than Romano, which renders her conviction under [the Hawaii statute] -- absent a showing of a compelling interest from the prosecution -- a violation of her federal and state constitutional rights to privacy as articulated in Lawrence and by the drafters of article I, section 6[ of the Hawaii Constitution.]"

State v. Romano, 114 Haw. 1, 23, 155 P.3d 1102, 1124 (2007) (Levinson, J., dissenting).

I have challenged the constitutionality of Tennessee's
prostitution statutes, based in part on Lawrence. The Court of Criminal Appeals of Tennessee conspicuously declined to address the Lawrence issue, (despite a vigorous petition for rehearing,) thus leaving this issue open for future litigation. Indeed, the appellate court did not even mention Lawrence.
 

Here's a piece available via FindLaw on the Mann Act:

http://news.findlaw.com/ap/other/1110//03-16-2008/20080316095003_10.html

providing a history, including its application (or misapplication?).
 

I think that for a 48-year-old man to have sex with a 22-year-old prostitute is for him to take advantage of her and is repulsive.

Well, I agree someone's being taken advantaged of here, but last time I checked the 22 year old wasn't paying someone $5,000 an hour to satisfy some lusting carnal urge.
 

I don't give a hoot about having sex with a pro. that is not the real issue. there might be charges other than consorting with a prostitute...Mann Act and money laundering...that is not legal.
 

As I understand it the criminalization of prostitution is a relatively recent idea. Brought to you by the same people who thought alcohol prohibition was a swell idea.

We fool with long standing human institutions at our peril. Sometimes it works - slavery. Sometimes it backfires - alcohol prohibition.
 

Is lewd conduct a fixed standard like robbery?

Any one listen to hip-hop lately?

How can you have laws against things with no fixed definition?

Oh. Yeah. The socialist fig leaf. Community standards.

Magic word: xbbanlm

There is a message in there. Perhaps Wonkette can help.
 

My guess is that Hillary wanted him to resign. Too close to home. Too many reminders of Bill.
 

But 22-year-olds are still children in some ways, and a girl (I use the word deliberately) who goes into prostitution -- high-priced or not -- is likely to have psychological problems.

The government is my shrink. It will not only take care of me physically but mentally too.

Comforting.
 

Pseudo-trackback ping: Most frighteningly plausible fantasy I've read this month. And my bet is that the reference is to Madame Justice Clinton, as part of the Great Denver Compromise of 2008 in which the Clintons were guaranteed President Obama's first two SCOTUS appointments. (Bill's Arkansas license was only suspended for five years back in 2001, and he resigned his SCOTUS bar membership under threat of permanent disbarment, but that's no obstacle under Article III, which as others have pointed out doesn't even require that one be a lawyer.)
 

BTW, it's clear to me that this isn't a Mann Act case, nor an appeal from a conviction for structuring or another federal financial crime. Rather, this is an appeal from a straight-up solicitation of prostitution charge filed under District of Columbia Code § 22-2701, with that venue explaining why the United States is the respondent.

dilan (8:00 p.m.): It is entirely possible to agree with the result reached in Lawrence (reversing the sodomy conviction) without joining in the substantive due process malarky contained in Justice Kennedy's majority opinion. Read, for example, Justice O'Connor's concurring opinion, which was based on an equal protection analysis ("Sodomy between opposite-sex partners ... is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants") that would have left Bowers intact. So perhaps you should back off from your accusations of bigotry on the part of Prof. Paulsen. Not everyone who questions, or even ridicules, Lawrence is homophobic, and indeed some of us (myself included) would describe ourselves as being pro-gay rights in general.
 

Wouldn't Lochner also apply?

CW
 

""I think that for a 48-year-old man to have sex with a 22-year-old prostitute is for him to take advantage of her and is repulsive."

He paid her 4300 friggin dollars for crissake! Tell me again... WHO "took advantage" of WHO???
# posted by Blogger Belchfire : 9:09 PM"

Actually, on reflection, Heather took advantage of Paul. $50M!!!
 

The reference to the case from Hawaii is interesting, but the dissent is pretty limited.

In part:

Adoption of my analysis by the majority, would not, therefore, compel the legalization of prostitution in its usual manifestations: streetwalking, escort services, or even hostess bars.

The service here was publicly advertised. It was an "escort service." Also, the dissent leaves something to be desired:

However, where two consenting adults swap money for sex in a transaction undertaken entirely in seclusion, the analysis of the Lawrence majority, despite the majority's attempt to avoid the notion, leads inexorably to the conclusion that the state may not exercise its police power to criminalize a private decision between two consenting adults to engage in sexual activity, whether for remuneration or not. See 539 U.S. at 590 (Scalia, J., dissenting)

Interpreting the majority in the way you but not they find consistent isn't quite the road to appellate success. The cite to Scalia's dissent is also a red flag. Opinions normally don't have the "slippery slope" quality, for better or worse, than dissents accuse them of having.

Anyway, by its own words, the dissent only would protect a limited range of prostitution. As to the late comment on this thread challenging Dilan, I question if Paulson supported O'Connor's concurrence.

Relatedly, Lawrence is quite reasonable application of earlier privacy rulings. Equal application, perhaps, one can say. You might find them "malarky" too, but that's another matter.
 

Finally. Thank you for having the sense and guts to take a stand by freeing up consensual sex between people. Neither Government nor Religion should involve themselves in that part of our personal lives. Especially if we want sex to happen. You have to understand. Everytime a woman says to her husband, "You didn't buy me anything for my birthday, so you're not getting any sex." She is asking selling herself. It happens all the time. There is nothing wrong with it. Men need sex more than most women, so men give us things. Little boys and girls behave the same way, without their parent's influence. Buying sex when you need it is a "service" like any other. Food is a necessity, yet we have to pay for it. Shelter is a necessity, but we pay for it. Same with sex. It is a necessity. I know religious people will never understand this, but that's only because they've been brain-washed since birth, to think they way their parents tell them. If they could truly think and feel for themselves, maybe religion would go away... and people would just be good to each other because it's the "right thing to do." I hope this bill actually passes. You know, everytime I hear news people and common Americans use this phrase: "Soldiers are fighting for our Freedoms". I always say to myself, WHAT FREEDOMS??? There are so many Christian Laws that we probably break 10 laws before we leave the house in the morning. Just be a good person, don't kill unless in self-defense, and believe what You want, and let others believe or not believe what they want. It won't hurt you, I guarantee it. I am an Atheist, and I help people, and give people freedom. It is the religious people who are taking everyone's freedoms. Trust me, it's true. I Look forward ot actually hearing that this consensual sex bill passes in 2010...Thanks for listening.
 

I apologize for the typos in my last comment. Shayan