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Sexual Rights in America

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

Copyright Date: 2003
Published by: NYU Press
Pages: 227
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  • Book Info
    Sexual Rights in America
    Book Description:

    The Constitution of the United States guarantees all Americans certain rights, such as the freedoms of speech and religious expression. But what guarantees our sexual freedoms? Sexual Rights in America presents a bold and intriguing look at the constitutional basis of sexual rights in America. Resurrecting the "forgotten" Ninth Amendment, which guarantees those fundamental rights not protected elsewhere in the Constitution, Abramson and colleagues argue that the freedom to choose how, when, and with whom we express ourselves sexually is integral to our happiness. Their careful review of the historical record reveals the importance of the "pursuit of happiness" in the socio-moral philosophy underpinning the Constitution. Sexual freedoms, they assert, are cut from the same cloth as the other freedoms protected by the Bill of Rights, and therefore, should be covered by the Ninth Amendment. Using concrete examples such as prostitution and phone sex, Sexual Rights in America illustrates the scope and limitations of Ninth Amendment sexual rights.

    eISBN: 978-0-8147-0529-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. 1 Sex and the Constitution
    (pp. 1-21)

    THE FREEDOMS OF SPEECH AND PRESS are trumpeted throughout 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 Constitution.

    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...

  4. 2 History and Interpretation of the Ninth Amendment
    (pp. 22-44)

    ON JUNE 21, 1788, New Hampshire followed eight other former British colonies in ratifying the United States Constitution, making this remarkable document the law of the land. The months leading up to this day were filled with contentious debates over the appropriate exercise of federal powers in a diffuse republican government and the ability of the Constitution to safeguard the individual liberties the revolutionaries had fought so hard to win.

    The primary source of this discord was the considered omission from the Constitution of a bill of rights to protect the liberties of the citizens and to reign in the...

  5. 3 The Poverty of Privacy
    (pp. 45-65)

    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,...

  6. 4 A Solid Foundation for Sexual Rights
    (pp. 66-90)

    SEVERAL YEARS PRIOR to its ruling inGriswold v. Connecticut,¹ which upheld the right of married couples to use contraceptives in the privacy of the marital relationship, the Supreme Court had dismissed a similar appeal challenging the constitutionality of Connecticut’s contraceptives statute. Here are the pertinent facts inPoe v. Ullman: After suffering through three consecutive pregnancies, each of which resulted in the birth (and death soon thereafter) of a child with a congenital abnormality, Mr. and Mrs. Poe sought the advice of an eminent gynecologist, Dr. Buxton (the same Dr. Buxton who was later to figure prominently inGriswold),...

  7. 5 What Can We Learn from Dial-a-Porn?
    (pp. 91-110)

    MASTURBATION IS A TOPIC most people are reticent to discuss. As Dan Conner, a character on the hit 1980s television showRoseanne, explained to his son D. J.: “Everybody does it butnobodytalks about it.” Nevertheless, upwards of 90 percent of men admit having masturbated at some point in their lives, with a mean frequency of between four and nine times a month.¹ This makes masturbation one of the most common and most frequent sexual behaviors among men, if notthemost common and frequent. Fewer women report having masturbated (60 percent or more), and those that do, do...

  8. 6 Does Prostitution Deserve Constitutional Protection?
    (pp. 111-137)

    IN THE EARLY PART of the twentieth century, one New York physician defined a prostitute as a “woman who satisfies the physical side of the sexual desire of a man without regard as to whether the passion is associated with admiration and respect, and insists on money in payment for her efforts.”¹ We will adopt a somewhat simpler definition: a prostitute is a woman (or man) who engages in the explicit exchange of sexual services for money or other remuneration. In this chapter we primarily focus on female prostitutes because they constitute the vast majority of persons who trade sex...

  9. 7 Child Pornography: Black, White, and Gray
    (pp. 138-164)

    THE DECEIT, COERCION, and harm implicit in pornographic images of children evokes nearly universal condemnation. Child pornography is particularly horrifying not only because it documents the criminal sexual abuse of a child, but because this enduring record of abuse violates the child’s right to future privacy and because such pornography often is used as a tool to perpetuate the sexual exploitation of children.¹

    Not surprisingly, there are few advocates of child pornography. Save the discrete musings of individual pedophiles, or of pedophile organizations such as the North American Man-Boy Love Association, few clamor to this cause. Clearly, child pornography is,...

  10. 8 The Past and Future of the Ninth Amendment
    (pp. 165-186)

    WE BEGIN THIS FINAL CHAPTER with three simple questions. First, how many fornicators are reading this book? Second, are there any sodomites among you? What about adulterers?

    An affirmative answer to any one of these questions could potentially result in a criminal conviction. For example, if you live in the state of Arizona or Illinois and are unmarried and cohabiting with your lover, you are (potentially) committing the crime of fornication: “A person who lives in a state of open and notorious cohabitation is guilty of a misdemeanor” (Arizona); “It is a misdemeanor to engage in sexual intercourse with a...

  11. Notes
    (pp. 187-212)
  12. References
    (pp. 213-220)
  13. Index
    (pp. 221-226)
  14. About the Authors
    (pp. 227-227)