The Politics of Strip Clubs: Are Lap Dances Free Speech?

[Emsworth]

The present case is considerably more difficult than most previous posters have assumed. Let us remember that the Supreme Court has repeatedly upheld the rights of filmmakers to portray sexual acts. It is true, the court has upheld limits on "obscene" speech, but the obscenity bar is an exceptionally high one. Certainly, if a filmmaker produced a movie depicting a strip club, then it would be unconstitutional to censor the film. On the other hand, the underlying activities that were themselves filmed could be considered crimes. This is indeed a curious dichotomy, which the Supreme Court has not quite resolved.

[Emsworth]

Not free speech, but the right to privacy. The right to privacy is a right implied in the constitution, just like judicial review is an implied and inherint power for the courts.

The Constitution expressly states: "The judicial Power shall extend to all Cases ... arising under this Constitution." The plain meaning of this clause is that the judiciary has the power to determine whether legislation violates the Constitution, because any charge that an act of Congress violates the Constitution is obviously a case "arising under this Constitution." Thus, even though the Constitution does not use the term "judicial review," it grants the power using equivalently strong words explicitly (not implicitly, as is often asserted). I would challenge anyone to find an equally explicit statement in the Constitution that guarantees a right that is equivalent to the so-called "right to privacy."

[Emsworth]

I would challenge anyone to find an equally explicit statement in the Constitution that guarantees a right that is equivalent to the so-called "right to privacy."

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The Fourth Amendment guarantees privacy in specific instances: specifically, it prohibits unreasonable searches and seizures, and even reasonable searches and seizures when made without a warrant. However, it does not guarantee a generic or universal right to privacy that includes, for example, the right to use contraceptive devices or the right to abortion.

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One can address the two amendments separately.

The unenumerated rights that the Ninth Amendment refers to encompass everything that the federal government is not authoirized to do. Thus, since the federal government is not authorized to regulate intrastate commerce, there is an unenumerated right against federal regulation of intrastate commerce. The Ninth Amendment simply means that, just because only some restrictions on federal power are explicitly mentioned, it does not follow that no other restrictions exist. Obviously, one cannot sensibly incorporate this amendment with respect to the states, just as one cannot incorporate the Tenth Amendment.

As to the due process clause of the Fourteenth Amendment: substantive due process is a contradiction in terms. Due process is about exactly that: process. From the time of the Magna Carta until the nineteenth century, the meaning of the term "due process of law" was perfectly clear: it meant merely the process required by the law. It was not interpreted to include any notion of "fairness" or substantive rights, at least until Chief Justice Roger Taney came along and twisted the meaning of the clause in Dred Scott. Thus, when the Constitution states that no-one may be deprived of life, liberty, or property without due process of law, it simply means that any such deprivation must be in accordance with the law, rather than arbitrarily imposed by the executive or judiciary.