Ted Cruz, Dildos and the Awful Concept of “Historical Rights”

Political correctness can come from the left or the right. When it comes from the right, we should call it “religious correctness.” But the underlying principles are the same. Like the political correctness of the left, the religious correctness of the right advocates the use of government force to coerce people into doing what they don’t wish to do, and have no obligation to do; or to prevent them from doing what they have every legal right to do (rational or not).

Here’s a case example, and it involves fundamentalist Christian Ted Cruz’s time as Solicitor General:

In 2004, companies that owned Austin [Texas] stores selling sex toys and a retail distributor of such products challenged a Texas law outlawing the sale and promotion of supposedly obscene devices. Under the law, a person who violated the statute could go to jail for up to two years.

At the time, only three states — Mississippi, Alabama, and Virginia — had similar laws. (The previous year, a Texas mother who was a sales rep for Passion Parties was arrested by two undercover cops for selling vibrators and other sex-related goods at a gathering akin to a Tupperware party for sex toys. No doubt, this had worried businesses peddling such wares.) The plaintiffs in the sex device case contended the state law violated the right to privacy under the 14th Amendment. They argued that many people in Texas used sexual devices as an aspect of their sexual experiences. They claimed that in some instances one partner in a couple might be physically unable to engage in intercourse or have a contagious disease (such as HIV), and that in these cases such devices could allow a couple to engage in safe sex.

But a federal judge sent them packing, ruling that selling sex toys was not protected by the Constitution. The plaintiffs appealed, and [Ted] Cruz’s solicitor general office had the task of preserving the law. In 2007, Cruz’s legal team, working on behalf of then-Attorney General Greg Abbott (who now is the governor), filed a 76-page brief calling on the US Court of Appeals for the 5th Circuit to uphold the lower court’s decision and permit the law to stand. The filing noted, “The Texas Penal Code prohibits the advertisement and sale of dildos, artificial vaginas, and other obscene devices” but does not “forbid the private use of such devices.” The plaintiffs had argued that this case was similar to Lawrence v. Texas, the landmark 2003 Supreme Court decision that struck down Texas’ law against sodomy. But Cruz’s office countered that Lawrence ”focused on interpersonal relationships and the privacy of the home” and that the law being challenged did not block the “private use of obscene devices.” Cruz’s legal team asserted that “obscene devices do not implicate any liberty interest.” And its brief added that “any alleged right associated with obscene devices” is not “deeply rooted in the Nation’s history and traditions.” In other words, Texans were free to use sex toys at home, but they did not have the right to buy them.

First of all, what business does the government (federal or state) have in defining what is or is not an “obscene” device in the first place? Obscenity is a value judgment. While value judgments can be objectively verified or refuted (as in the value judgment that living a life of heroin addiction is objectively bad), making value judgments for people is not the job of the government. Government is supposed to protect people from criminals, i.e. those who impose force or fraud on others. Government is not supposed to determine what’s obscene, what is not obscene, and then protect people from that obscenity.

In this case, Ted Cruz tried to have it both ways. As the article points out, he’s implying that while you have a right to do what you please in your own bedroom, by yourself or with consenting adults, you do not have the right to buy the equipment or materials you might wish to you use in that bedroom.  Ridiculous.

The issue here is not a right to privacy so much as a right to private property. The people who manufacture dildos or other sex toys that Ted Cruz and the state of Texas deem obscene have a right to sell those products to willing customers without any legal ramifications. The same goes for those who wish to buy them. If a law is passed by any state or locality violating this right to private property and contractual agreement among consenting parties, then the federal government would be right to strike it down.

Social conservatives will not agree. They’ll reply, as Cruz does, by pointing out that the Constitution does not specify a right to dildos or sex toys. Or by claiming, “Traditionally we didn’t protect the right to sex toys.” So what? In the past, people did not talk so openly about sex toys; that doesn’t mean they didn’t use them. Even if people did not start using sex toys until recently, that choice should be of no concern to the government. The Constitution does not specify a right to live in a world where people are not allowed to buy dildos or other sex toys either. What business is it of the government’s to even be talking about all this?

We should be asking what’s wrong with the people who are so preoccupied with what does or does not constitute obscenity—even when consenting adults are involved—that they must get the government to impose their preferences via coercion. Speak out against dildos if that’s your obsession, and if you think it’s one of the most important issues of our day. But don’t support or pass laws requiring others to practice what you prefer.

Ted Cruz claims to be the only candidate running for president who respects and understands the Constitution. But would someone who really grasps and appreciates the Constitution allow himself to become distracted by such an issue, in a way that goes much further than interfering in the bedroom? What about the right to free trade, private property and commerce? Would a solid advocate of the Constitution even be tempted to argue in favor of a law outlawing the right to engage in private transactions which do not violate the rights of others?

A long-time and regular reader of mine, who posts online under the pseudonym of P. Douglas, replied as follows (reprinted here with consent provided):

I look forward to the court case in which Cruz asserts Texans’ “private right to guns” but denies their right to buy or sell them.

Precisely. Cruz and other social conservatives make the same kind of arguments in these cases that people who wish to restrict or outlaw gun ownership do in their own arena. Principle matters. The true test of whether you grasp a principle (and possess the integrity to honor it) is whether you’re prepared to apply it across the board, even when it’s emotionally distasteful or uncomfortable. Individual rights, freedom and private property are matters of principle. You don’t get to ignore them when your mind becomes aroused by anxiety, hostility or whatever emotions certain sexual practices bring up for you. Either we’re a free country, or we’re not. There is no right not to feel uncomfortable, disgusted or morally offended. The only rights any of us have are to be left free of compulsion. This includes free of compulsion by do-gooders (of the left or right persuasion) who seize power in government to force people to act as the control freaks deem necessary.

P. Douglas goes on to say:

This is the saddest defense of a law I’ve ever read. A “historical’ right”? By that standard the sale of anything invented or conceived of after John Adams croaked falls outside the protection of the Constitution. It’s also the saddest misreading of the Constitution, fit more for a “law” class taught by Obama: The Constitution is not a laundry list of things individuals are permitted to do or own. It is a charter that restricts what the government can do. If something is not specifically prohibited by the Constitution, and if it doesn’t violate anyone’s rights–if it doesn’t create a victim–then it is and should be constitutional and legal for adults. That includes masturbation, sex, and the use of dildos, along with the right to buy and sell items related to those things. Sex toys, by the way, are not exactly recent inventions, although I know conservatives think everything deviating from missionary-position sex was invented after1968. They predate the Constitution by millennia. Unlike latex and electricity. The fact that there’s case law supporting this kind of pathetic puritanical squeamishness and control-freak busyness just proves the adage that two wrongs don’t make a right. Or GIGO, if it’s still legal to use a phrase coined after 1789.

And a hearty Amen to all that.

I can’t even believe advocates of individual rights, freedom of commerce and private property have been reduced to talking about dildos as a serious issue. It goes to show just how far adrift from our original Constitution the U.S. has gone, and how the assaults on that Constitution are coming from all sides and directions—including those who claim to be its staunchest defenders.

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