Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness PDF
Preview Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness
SEXUAL RIGHTS IN AMERICA PAUL R. ABRAMSON STEVEN D. PINKERTON MARK HUPPIN SEXUAL RIGHTS IN AMERICA The Ninth Amendment and the Pursuit of Happiness a New York University Press • New York and London NEW YORK UNIVERSITY PRESS New York and London © 2003 by Paul R. Abramson, Steven D. Pinkerton, and Mark Huppin All rights reserved Library of Congress Cataloging-in-Publication Data Abramson, Paul R. Sexual rights in America : the Ninth Amendment and the pursuit of happiness / Paul R. Abramson, Steven D. Pinkerton, and Mark Huppin. p. cm. Includes bibliographical references. ISBN 0-8147-0692-4 (cloth : alk. paper) 1. Sex and law—United States. 2. United States. Constitution. 9th Amendment. I. Pinkerton, Steven D. II. Huppin, Mark. III. Title. KF9325.A93 2003 342.73'085—dc21 2003000531 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Contents 1 Sex and the Constitution 1 2 History and Interpretation of the Ninth Amendment 22 3 The Poverty of Privacy 45 4 A Solid Foundation for Sexual Rights 66 5 What Can We Learn from Dial-a-Porn? 91 6 Does Prostitution Deserve Constitutional Protection? 111 7 Child Pornography: Black, White, and Gray 138 8 The Past and Future of the Ninth Amendment 165 Notes 187 References 213 Index 221 About the Authors 227 v To my daughters,Annaka and Sienna,hoping their choices provoke strength and stamina —Paul R.Abramson,Ph.D. To my mentors, Paul Abramson, David Holtgrave, and Rocky Koga, without whose guidance, sage advice, and infinite generosity, I might have—to paraphrase the immortal Frank Zappa—wound up working in a gas station —Steven D. Pinkerton, Ph.D. To Adam, who had his first girlfriend while this book was in its latter stages; to Helen, who lets me give her advice about boys which she may not need; and to Anna, Danny, Eliot, Naomi, Sam, Juliana, and Jacob, for what lies ahead of you —Mark Huppin, J.D. 1 Sex and the Constitution THE FREEDOMS OF SPEECH AND PRESS are trumpeted through- out the land. These rights are fundamental, we are told, because they form the foundations of democracy. They are so important, in fact, that they are guaranteed by the First Amendment to the United States Con- stitution. But what about other forms of expression, such as sexual intimacy? Are Americans free to express themselves sexually? Specifically, are sexual rights protected by the Constitution? If sexual freedoms do exist in the Constitution, they certainly are not explicit. Perhaps this was intentional—as though sex didn’t belong in such rarefied company as the freedoms of speech and the press, or protection against self-incrimination. Yet, without sex, the human race cannot endure. The survival of the United States, in particular, depends upon sex. Thus, in the grand scheme of things, sex matters––certainly as much as speech and press. Moreover, ours is a nation conceived upon the “self-evident” truth that all men (and women) have a fundamental right to the pursuit of happi- ness. The pursuit of sexual fulfillment, we will argue, is integral to the overall happiness and well-being of the American populace. But if sex is so important, why can’t we locate it in the Constitution? The problem, we believe, is not that sex is absent from the Constitution, but rather that it is hidden away, subsumed by the most misunderstood of the ten amendments that make up the Bill of Rights––namely, the Ninth Amendment. The purpose of this book is to establish a vital and functional con- stitutional foundation for sexual rights in America, based on the Ninth Amendment. This historically neglected amendment states that “The 1
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