I have been reading about Storyville, New Orleans and the presence of semi-legal prostitution in this now lost area.
It got me wondering about why things are legal or illegal in the first place.
Is it just the will of the people? If enough Puritanical thinkers agree that prostitution is bad for society they enact laws that make it illegal.
But there is also the constitution that guarantees rights for citizens. A group of prostitutes can challenge the law because it impacts their right to earn a living. Who are they harming in this activity? There is a transaction for sex just as there is a transaction for other services in society.
How does the Supreme Court view prostitution? Is there an article in the constitution that speaks to this or does the court rule based on each judge’s internal view of the subject?
And I guess this applies to other Western taboos such as polygamy etc.
The traditional argument would have been, “Their profession runs contrary to public policy. They are spreading disease and corrupting public morals. Plus other illegal/immoral behavior flourishes whereever they trade.” Nowadays the arguments would probably center around oppression of women and that the persons prostituting themselves were not free actors.
Yes, of course it’s because the people, through the legislature, have chosen to pass laws making it illegal.
And I don’t doubt that some prostitute, somewhere, has tried to appeal on Constitutional grounds. But the people who make up the courts have chosen not to interpret the Constitution in such a way as to guarantee a right to prostitution.
That’s all the factual answer that’s possible. If you want to know why people have made those decisions, or whether those decisions are good ones, then this thread will need to be moved to Great Debates.
The weird thing is that making a porn movie is legal, protected under the First Amendment. So payment for sex is okay provided you film it. (That doesn’t mean it’s legal to hire a hooker provided you just film it on your phone, it’s regulated with licensing requirements.)
Like prostitution itself, that varies from state to state.
Where I live prostitution is legal, and provided he or she pays tax there is nothing intrinsic about their work that makes it illegal. Sex work becomes a job with its own challenges. What is illegal is living off the earnings of prostitution. I assume this law is written to prevent pimping or sex slavery rather than say being a brothel landlord, but dont know for sure. Its a different way of addressing that question of autonomy and right to your own body.
The US Constitution doesn’t guarantee anyone’s right to earn a living. At best, that might be an un-enumerated right. Under the Ninth Amendment, such rights can exist, although the Ninth does not establish that any such right exists. And the Tenth Amendment places the power to enumerate rights, and thus bring them under the protection of the federal government, with the states and the people.
Which is why prostitution is legal in some areas. The Constitution doesn’t say anything about it, so it is up to the states or the people. If they want prostitution in their state, the Supreme Court doesn’t, or shouldn’t, interfere.
Regards,
Shodan
This is pretty much the same as the UK. The argument against making paying for sex illegal often centres around the definitions of ‘paying’. If I take a girl out and buy her dinner and then we share a bed, is that prostitution? If I take her to dinner and give her a diamond, does that make it prostitution? If a wealthy person marries an attractive poor person, does that make one party a prostitute?
Of course, soliciting can be a crime, as can living off [someone else’s] immoral earnings, but a simple agreement between two parties, where something of value is exchanged for sex, is very difficult to legislate against.
Yes, I believe Iceland not only banned prostitution despite it being legal before, but also banned strip clubs on the basis of it encouraging sex trafficking. In fact under their system if a man pays for an illegal prostitute and is caught, only the man gets in trouble.
Presumably if a woman was caught paying for sex with a male prostitute she’d criminally liable, but scenario isn’t going to come up often (also women hiring male strippers is reasonably common in Western countries).
Because it’s unfair competition for marriage. Who’d get married, if you could buy the sex you wanted legally (and at a bargain, compared to the cost of a marriage).
So all women who are married, or want to be, demand legislation to make it illegal.
Religion and biology.
It goes farther back than that though, pre-women’s rights. A marriage used to be a contract between families, arranged as part of a greater deal. If you think about it, the deal falls apart if the man isn’t interested because he can much more cheaply get what he needs from prostitutes. Though another confounding factor is that reliable birth control wasn’t available until fairly recently in the 20th century, pre-birth control, prostitutes were extremely expensive. (freakonomics has a section on this where they look at brothel prices around the turn of the century). And this would have been post women’s liberation.
In general though, it does seem like a clear infringement upon individual rights by the government. If you think about it, for every woman it’s the government taking without compensation - every attractive woman could rent herself if she chooses for several hundred dollars an hour. By the government banning it, they are essentially taking away potential income.
Kind of in the same way if you earn a license to do a skilled task and then the government arbitrarily takes away your ability to earn a living because the people in your local community think plumbing for pay is despicable so they ban it. You could plumb for free - if someone takes you on several expensive meet and greets at local bars and restaurants you might be charmed into fixing their pipes or snaking their toilet - but under this scheme you can’t demand the market rate for your services.
In a certain sense, an attractive woman has earned what she has, by controlling her appetite, dressing well with much makeup and hair work, and also being young, an asset that quickly expires.
Right—exactly the point made by the Wikipedia article on Prostitution in the United States:
This argument only stands up if you think that all a man gets out of marriage is sex. Which, both historically and in the present day, is nonsense.
I think there’s a different explanation. We observe that prostitution is most likely to be criminalised, or heavily legally restricted in other ways, in Protestant or historically Protestant societies, while in Catholic or historically Catholic societies its more likely to be regulated through licensing of one kind or another.
(Storyville, mentioned in the OP, is in New Orleans. Just sayin’.)
What this reflects is different cultural assumptions about what the law is for. In Protestant thinking, promoting vice and supressing virtue is a proper object of the law. Even if criminalising prostitution (or drugtaking, or whatever) doesn’t actually stop it, it still sends an important message about right and wrong behaviour. Plus, it avoids the state being complicit in immoral behaviour by condoning it. So, if you think transactions of prostitution are inherently wrong, you default to criminalising them.
Whereas, in the Catholic tradition, the purpose of law is to promote the common welfare. So that means things like harm minimisation, protection of prostitutes from exploitation, impeding the spread of STDs, etc. Whether this can be more effectively done by criminalising particular behaviour, or by regulating, licensing or otherwise controlling it, becomes a matter of practical judgment rather that fundamental principle.
[Moderating]
OK, then, GD it is.
That sounds good as a general theory, but if consistently applied, it would tend to make all laws banning any product or service unconstitutional. Are laws against heroin unconstitutional because it deprives me of my trade…which is selling heroin? What if I am a machine gun manufacturer? A bald eagle hunter?
But, as someone noted upthread, there’s a difference, right? As I understand it, we ban free handouts of heroin along with the sale of that heroin; and, as far as I know, I can’t legally machinegun a bald eagle just because I feel like it, and I’m also barred from doing it in exchange for a paycheck.
Isn’t it different to say “oh, hey, go ahead and have sex with that woman; that’s fine, just so long as no money changes hands, see?”
It is different, but I’m not sure why it is materially different. I know of no grand principle of law that says that if I can give something away for free that I must then have a constitutional right to sell the same thing.
I mean, I can give my child up for adoption, but I cannot sell her. Is that denying me the right to apply my trade: child selling?
I think the arguments that I have seen in favor of legal prostitution are the pseudo-Libertarian arguments that focus on an individual transaction and ignore the larger threats to society. Sure, if I meet a woman at a bar and we hit it off and end up back at my place, is that functionally any different than if I just paid her to come back to my place? Not really.
But multiply that by a million. Now we have whorehouses with advertisements, increased STDs and unwanted children and yes, the moral argument that it cheapens and demeans sex. I mean, how special is the marital bond during sex between my wife and I when I can purchase sex at the Mustang Ranch a mile and half away?
The counterargument is usually then that I now have to propose outlawing fornication, adultery, sodomy, and anything but missionary position marital sex, but that isn’t the case at all. Society makes trade offs. It may rationally decide that a person’s interest in liberty and autonomy is too important to outlaw fornication, even if it wanted to, yet still refuse to take the extra step of making sex a commodity.
“Whorehouses” kinda poisons that well, doesn’t it?
Not in a regulated market.
Not in an environment that actually supports birth control.
I guess it a moral argument, if one comes from a perspective that a pleasurable (for humans) act that every mammal does naturally is somehow sacrosanct.
As special as you choose for it to be. Honestly, I find this part of your (to be charitable, let’s call it an) argument to be entirely incomprehensible. “Sex is sacred to my relationship, therefore if someone can freely and safely purchase a sexual encounter with someone else, that ruins my sacred sexual bond.”
That’s just…I don’t know what it is. But it’s utterly bizarre to me.
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