Prostitution and Subsidiarity

I'd like to associate myself with Jim Manzi's remarks on the subject.

Comments

So it's okay to pass moralist laws that interfere with the private lives of citizens because, hey, people that don't like it can move somewhere else?

There's a rather robust legal precedent that runs counter to that logic. Witness the bans on sodomy that were overturned a couple of years ago.

Posted by Jeff | March 13, 2008 2:56 PM

Jeff,

There is, I think, a philosophical tension between those positions, though no one has tried to argue yet that bans on prostitution are constitutionally infirm for the same reasons that sodomy bans are.

Ross would argue, I suppose, that telling someone they must move somewhere else in order to practice activities that are inherent to their sexual nature is more problematic than telling someone they have to move (or even travel to) someplace else to engage in practices which they may find pleasurable, but which are in no meaningful sense inherent in their sexual nature. I don't think many people are capable of sexual satisfaction only in commercial settings. And most people on the other end of that commercial transaction have other choices available in terms of occupation.

I'm not sure where I come down on the issue; I'm just saying that one can logically favor a universal ban on sodomy laws, and still favor local autonomy vis a vis prostitution laws.

Posted by LarryM | March 13, 2008 3:45 PM

Actually the bans against sodomy as well as those regarding prostitution are reasonable. The fact that a majority of the Supreme Court found otherwise on the subject of sodomy doesn't necessarily negate the previous well founded ban, as Justice Scalia's brilliant dissent recognized.

Posted by Peter Leavitt | March 13, 2008 6:32 PM

Re: Actually the bans against sodomy as well as those regarding prostitution are reasonable.

Prostitution is a public behavior since it involves an economic transaction. Sodomy does not and hence is a very different matter.

Posted by JonF | March 13, 2008 7:08 PM

Mr. Manzi's comments would be more persuasive if he showed any sign of knowing that Las Vegas is in one of the only two counties in Nevada (the other being the one Reno is in) which do NOT allow prostitution. Perhaps he could come up with another example? One which deals with reality? And I speak as one who agrees with him that living in Nevada, especially Las Vegas, would be awful.

Posted by wj | March 13, 2008 7:22 PM

wj:

That's why I was careful to say:

"Several counties in Nevada allow legalized prostitution."

Best,
Jim Manzi

Posted by Jim Manzi | March 13, 2008 10:25 PM

Just curious, how do you feel about extending this same principle (for the sake of brevity, we'll call it "latitude for local difference") to other things as well? Not just prostitution, but drugs or abortions or gay marriage?

Just asking...

Posted by Herb | March 14, 2008 12:01 AM

"What if some states want to allow human chattel slavery? Well, we had a civil war to rule that out of bounds"

It also goes - or should go - without saying that any rule based on "if you don't agree with the laws your community enacts, but you don't move away, then too bad" presupposes two pretty basic conditions of legitimacy:

(a) the laws are supported by at least a majority of the whole population of that community - everyone gets a vote on them, and those votes are counted equally

(b) it is fairly easy to move to another jurisdiction.

Given these preconditions, it becomes immediately obvious that "subsidiarity" cannot justify either pre-1865 slavery or pre-1965 segregation (based on disenfranchisement, gerrymandering, malapportionment, and debt laws that verged on peonage and were used to prevent African Americans escaping the South).

Re sodomy laws. I'd vote to repeal the lot. However, I thought it was ironic that, barely twelve months after the Supremes held that the Texas law had not even a rational basis (rather than "it may be minimally rational, but it discriminates in its operation against an involuntary group, ie gays, so it fails strict scrutiny"), Will Saletan, a liberal pro-choice Republican, writes in Slate warning of the health dangers of anal sex, apparently (they tell me) becoming popular among hetero young people.

Whatever the health dangers, of course, Argus Hamilton (IIRC) was right that "If you want to stop men having sex with men, throwing people in jail is not going to do the trick".

Posted by Rod Blaine | March 14, 2008 7:43 AM

Not just prostitution, but drugs or abortions or gay marriage?

I can't speak for Ross or Manzi. But: drugs? I'm strongly in favor of subsidiarity, there, and dislike the drug war in general. Abortion? Well, that community would be an unjust and evil place, but I wouldn't invade it. I might strive for national laws there, though, on grounds analogous to those on which slavery was a matter not suitable for subsidiarity, or why we don't (well, ok, much of the left did) shrug at the gulag and go "different strokes for different folks."

Gay marriage? A good one for subsidiarity -- so long as the locality has it by democratic process (in our political system, where that is the primary source of legitimacy outside of constitutional law, which has never in fact (as opposed to judicial whim) created such a 'right'), and there's a bulwark against efforts to use mutual recognition or the federal courts to extend a more local decision to the rest of the country.

Posted by The Marquis of Carabas | March 14, 2008 1:30 PM

By the way, I also think the pro-subsidiarity case would be greatly strenghtened if the penalty a smaller unit could impose for a breach of its rules was not prison, or even fines, but exile or banishment. "Love it or leave it" rings a bit hollow when those who don't "love" that community, or at least its laws, are not allowed to "leave it" because they are guests of the county for six to ten.

At least if the legal delict were a "morals" offence, and didn't involve any immediate coercion of other persons, its legitimacy would ISTM be strengthened if the sentence were suspended conditional on the person leaving within (say) 14 days and staying out. Perhaps only national laws should carry prison sentences as a sanction. This would mean federalising murder, rape, armed robbery, arson, etc but there would be national consensus on those.

Yeah, I know this is light-years from current US Con Law 101.

Posted by Rod Blaine | March 14, 2008 4:07 PM

Mr. Manzi,
I am sorry if I misunderstood you. I guess it was following the line about many counties in Nevada allowing prostitution with "(Las Vegas: Hell, with an excellent marketing department.)" that suggested to me that you say legal prostitution in Las Vegas as part of the problem.

Posted by wj | March 14, 2008 5:08 PM