DOES THE U.S. CONSTITUTION GUARANTEE THE RIGHT TO PRACTICE PROSTITUTION?
Recently in Phoenix there have been suggestions that the cars of clients of prostitutes be confiscated. These suggestions can be regarded as: (a) plain silly; (b) an honest attempt to eradicate the evil of prostitution; (c) a try for cheap publicity; (d) an attempt to expand police powers; (e) corrupt, out-of-control bureaucracy running amock; (f) the arrogance displayed by political masters toward their slaves; (g) an attempt to increase government power at the expense of individual power; or (h) other. Take your pick.
First, let me emphasize that I do not advocate prostitution. Apart from the spreading of venereal disease - like AIDS- prostitution can pose a threat to marital happiness and other romantic relationships. I must also point out that I am not an attorney, this article is not intended to offer legal advice. Furthermore, I do not advocate the use of cars immediately before, during, or immediately after acts of prostitution.
But there is a more basic issue: Is prostitution lawful? In America we have a purported contract, the U.S. Constitution, that supposedly forms the basis for determining what is lawful and what is not (Chapter Ten).
Prostitution is never mentioned in the Constitution. I believe the following stipulations of the Constitution are relevant here:
A central issue is whether a person owns his or her body. For the government or state to own our bodies would be slavery. But the Thirteenth Amendment abolished slavery. Clearly, this means that we as individuals own our bodies, not the state or government.
Article I, Section 10 effectively guarantees the right to contract and prohibits any State from passing any law that impairs this right. It seems to me that a person who owns his or her body has the right to "contract out" the use of that body for the pleasure of another - provided no rights are violated.
There is also a Common Law principle which states that for there to be a crime, there has to be a victim (corpus delecti). In the absence of a victim there can be no crime.
The Arizona Department of Public Safety has just announced (The Arizona Republic, September 10, 1992) that in 1991 violent crime in our state increased by 5.5 percent over the previous year. Rapes increased by 6.5 percent. And the FBI recently announced (The Arizona Republic, August 30, 1992) that violent crime nationwide in 1991 was up 4 percent from 1990, up 24 percent since 1987, and up 33 percent since 1982. If our police and courts concentrated on preventing and handling real crimes, instead of persecuting people for so-called "victimless crimes," wouldn't we all be much better off? By what percentage would our prison population decline?
Could there be a link between the clampdown on prostitution and the increase in rape statistics?
America is supposed to be a capitalist or free-enterprise country. There are two basic principles of capitalism and free enterprise: 1. The right to own property; and 2. Voluntary exchange. When two (or more!) people engage in an act of prostitution, are they not exercising their rights of personal ownership and voluntary exchange?
Some may argue that certain judges have interpreted the Constitution differently and have punished people like pimps, prostitutes, and their clients for engaging in the "immoral" business of prostitution. Well, judges do not swear an oath to interpret the Constitution, but to support it.
There is also no mention in the Constitution of the phantoms some judges use as justifications for "interpreting" the Constitition: "Public Safety," "Public Interest," or "Public Policy." In 1968, in Columbia University's Charpentier Lectures, Justice Hugo Black said:
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation."
In his book The Tempting of America: The Political Seduction of the Law Justice Robert H. Bork advocates the "wisdom and the necessity of interpreting the Constitution according to the "original understanding" of the Framers and the people for whom it was written."
We can also compare the mode of operation of the prostitute to that of the state. The prostitute says, "If you give me money, you may enjoy my body." But the state says, "Give me your money, or else!" The prostitute gives you a choice. The state doesn't. Who is moral and who is immoral?
A famous court case indicates how the Constitution was
understood at one time:
"The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He ows no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47 (1906).
Does the idea that the government has the power to interfere with the voluntary sexual activities of individuals imply that citizens are "state property" and that the U.S. Constitution in practice means nothing?