Let the word go forth to prostitutes and their customers throughout the land: If you want to protect yourself from criminal prosecution – videotape it. “Huh?” you say. “Say what?” you ask. Okay, here’s how it works. In 49 states and the District of Columbia, prostitution – the exchange of money for sex – is illegal. On the other hand, pornography - the exchange of money for sex on film – is sanctified by the First Amendment and therefore not illegal. Who says that pornography is protected by the Constitution and therefore not illegal? The U.S. Supreme Court.
The First Amendment says that Congress shall make no law “abridging the freedom of speech.”
The Supreme Court says that pornography is speech. No Constitutional protection is granted to sex for money which is not filmed because that isn’t speech. Curiously, whether or not the participants in pornographic films are actually speaking does not seem to have figured into the Court’s decision. The ruling, in effect, reads the First Amendment as if it said: “Congress shall make no law respecting an Establishment of Religion, … or abridging the freedom of speech, or of the press; …or to make movies of people having sex.”
Ironically the Court recently held that the infamous McCain Feingold Campaign Finance Law, which prohibits certain political ads targeting particular candidates 60 days before an election, is not a violation of the First Amendment. So, in other words, political ads aren’t speech, but movies of people having sex is. Get it? If you can make sense of this, please give me a call.
Now if the Court’s reading of the first amendment sounds ridiculous keep in mind that Congress’s understanding of the Constitution can also, on occasion, get a tad silly. In 1998, for example, the Republicans in Congress, in the aftermath of the Monica Lewinsky scandal, read Article II, Section 4 of the Constitution as if it said: “The President … shall be removed from Office on impeachment for and Conviction of Treason, Bribery, other high Crimes and Misdemeanors, or blow jobs.”
If its reasoning on pornography seems anomalous, many of the Court’s other decisions are equally perplexing. Take the famous 1973 Roe v. Wade ruling in which the Court found that there’s a Constitutional right to abortion. Now you can debate whether, as a matter of public policy, abortion should be legal. But if you read the Constitution you won’t find any mention of a right to abortion, or, for that matter, anything in any way remotely related to abortion. So how, you might ask, did the Court find a Constitutional right to an abortion if it’s not mentioned? They found the right contained, in the now famous words of Justice Douglas, within penumbras, formed by emanations in the Bill of Rights. I have thoroughly searched my copy of the Constitution, and I could find neither penumbras nor emanations.
Now everybody knows that in order to make it to the Supreme Court you have to be, like, really smart. So maybe these guys are so smart that they’re able to perceive such Constitutional penumbras and emanations, which sound suspiciously like vibrations, emanating from the invisible portion of the infra red ultra violet light spectrum which the rest of us are unable to see on accounta we’re, like, too dumb.
On the other hand, if the Justices are so smart, how come they’re only now, after 218 years, getting around to deciding whether the Second Amendment provision that “the right of the people to keep and bear arms shall not be infringed” means that the right of the people to keep and bear arms shall not be infringed? Or, conversely, does it really mean that the right of the people to keep and bear arms shall be infringed. Tough call.
Okay, actually, to be fair, the issue is complicated by the confusing opening language of the 2nd amendment which, read in full, says, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Some perspicacious anti-gun scholars think the founding fathers meant to protect, not the right of the people, but only the right of the military, to bear arms. The logic of this view is that the founding fathers found it necessary to enshrine the right of the military to bear arms in the Constitution lest some tyrannical future government require the soldiers to fight wars with their bare hands. This could place them at a disadvantage against an enemy armed with guns and bombs. No explanation is offered why any government would want to send its own soldiers into battle unarmed, or why the amendment said “the right of the people to bear arms shall not be infringed” instead of what the framers really meant - that the right of the military to bear arms shall not be infringed. Apart from this perplexing logic, the view that the right to bear arms is only for the military is difficult to reconcile with unequivocal statements by George Washington, Thomas Jefferson, John Adams, Alexander Hamilton, James Madison, and Patrick Henry, that all the people retain a right to bear arms to protect their liberty. On the other side of the issue, it can be argued, however, who the hell are those guys anyway? I mean, what do they know?
To understand the paradoxical complexity of the decisions rendered by the Supreme Court, bear in mind that the Court has to perform two distinct and disparate functions: 1) To invent out of whole cloth new rights which no one has ever heard of before and then explain how these newly invented rights are protected by the Constitution even though there is no mention of them, and, on the other hand 2) To totally eradicate long established rights which, in clear, unequivocal language, are explicitly protected by the Constitution - without anybody noticing.
Abortion and pornography fall under the first category – newly invented rights. The second category – long established rights which have been eradicated - includes the fourth amendment’s right to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures,” and the ever unpopular fifth amendment’s provision that we shall not “be deprived of life, liberty, or property, without due process of law.”
In truth Americans are routinely deprived of property without due process of law. What does “due process of law” mean? It means you get a hearing – in Court – before the government seizes your property. Yet in most states the police can seize your car without a hearing not only on suspicion of drug possession, or soliciting a prostitute, but even for such trivial offences as lack of proof of insurance. Your car is property. The government seizes it. They don’t give you a hearing. The Court’s response? “Too bad, pal.”
The biggest violator of the fourth and fifth amendments is the IRS. The IRS’s effectiveness is wholly dependent on its ability to arbitrarily seize taxpayers’ property. They can attach your bank account, garnish your wages, and seize your car, your home, or financial assets, and routinely do so without any court hearing adjudicating whether any taxes are actually owed.
Now as to the fourth amendment, remember the great hue and cry from righteously indignant civil libertarians against the “Patriot Act” provision allowing the FBI to subpoena library records? Now personally I don’t care if the FBI wants to know what subversive books I’ve checked out of the library. Actually I think they’re more likely to probe into whether my neighbor Mohammed has taken out books on how to build a nuclear bomb in your garage. Of course if Mohammed is smart enough to build a nuclear bomb in his garage he may also be smart enough to not get caught checking the book out of the library.
But I wonder why these self-proclaimed freedom loving ACLU types who are apoplectic about the Patriot Act, and government eavesdropping on phone calls with suspected foreign terrorists, have uttered nary a peep about far more intrusive laws which require banks to spy on their customers for the government and allow the Treasury Department full access to all your bank records without court approval? What, you don’t believe your bank is spying on you? Trust me; they are spying on you.
The Bank Secrecy Act of 1970 requires banks and other financial institutions to report to the Treasury Department “suspicious currency transactions.” Now do you think this is only directed against drug dealers and terrorists trying to launder money? Actually, it’s also directed against ordinary people like you and me. Because a suspicious currency transaction is broadly defined to include any cash transaction, or series of transactions, over $3000. This includes either deposits or withdrawals, and any cash payments on a loan, or other cash transaction which the bank considers “unusual.” You get that? You get reported to the government for depositing or withdrawing your own money. And the IRS can then swoop in, with no hearing, and get access to all your bank records, including checking, savings, and credit card accounts. Now, given a choice, would you rather have your phone calls with foreign terrorists monitored or have your bank transactions spied on and your house seized by the IRS?
All of which brings us back to Eliot Spitzer. Because guess how he got caught – withdrawing his own money from the bank. And the bank reported it to the government. Well, you might say, Spitzer should have known that BIG BROTHER IS WATCHING because, um, Spitzer is Big Brother. Of course then again, if he’d videotaped his sexual adventures with the hooker and put it on the market so everyone could watch (along with Big Brother), he couldn’t have been charged with the crime now known as “unvideotaped sex with a prostitute,” and he’d still be Governor of New York.
As for the Supreme Court, if you want to make sense of all the confounding, convoluted, and contradictory decisions which seem to make hash of the plain meaning of the language before them, bear in mind that in Constitutional analysis the Justices are guided by one over-riding, transcendent, principle of jurisprudence known as “Catch 23,” which is best summed up as follows: “The Constitution means whatever we say it means.“
“Serving all of humanity but mainly serving myself, this is Jim Greenfield.”
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