Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness

By Paul R. Abramson; Steven D. Pinkerton et al. | Go to book overview

3
The Poverty of Privacy

THE SEARCH FOR enumerated sexual rights within the text of the U.S. Constitution is futile. Sexual rights are nowhere to be found in this venerable document. Nevertheless, certain sexual rights, such as the right to utilize contraceptives and the right to an abortion, have gained a footing within the Constitution under the general rubric of the “right to privacy.”

What is the basis for this vague “right to privacy?” There is, in fact, no explicit privacy guarantee written into the Constitution or the Bill of Rights. Instead, this right arose as a “penumbra” (emanation) of various other constitutionally guaranteed rights, such as the right of association and protections against unreasonable search and seizure. The Court later placed the privacy right within the “liberty” of the Fourteenth Amendment's due process clause, but the boundaries of this right are no less muddled for this putative clarification.

Privacy seems like a right we should have, especially as a demarcation between “the people” and their government. Privacy provides a bulwark against perpetual intrusion. It also seems reasonable to consider the absence of a clear-cut privacy reference in the Constitution an unfortunate oversight.

Sex and privacy make natural bedfellows. Sex, after all, is a private behavior; indeed, public sexual performances are uniformly criminalized. As such, constitutionally guaranteed privacy has formed the basis for several high-profile sexual rights cases, such as Griswold v. Connecticut (concerning a married couple's right to use contraceptives), Roe v. Wade (a woman's right to an abortion), and Bowers v. Hardwick (the right to engage in sodomy).1 Thus, if sexual rights are to be expanded, one could certainly argue that it would be much more frugal, and keeping with precedence, to widen the privacy umbrella to encompass a greater diversity of sexual rights, instead of advancing, as we do herein, the

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Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • 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
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