Criminalizing Commercial Sex is Unconstitutional

I’m taking a fair amount of flak from my friends here on RRND for maintaining in my last post that public accommodations laws are constitutional, i.e. not violative of the First and Fifth Amendments. That just goes to show that libertarians are split on the question which is what I observed in the first sentence of that piece.

Surprise: we don’t agree on every issue.

But this is a matter upon which we can probably all agree: Criminalizing commercial sex is unconstitutional because such laws violate fundamental liberty; both the First and Fifth Amendments.

It comes as a surprise to no one that human beings want sex and that many are willing to pay for it whether the government Authority likes it or not.  There is a huge demand everywhere on this planet for commercial sex services.

In fact, a new report by the Urban Institute funded by a grant from the National Institute for justice details a vast underground sex economy in the United States. The illegal sex industry in just eight U.S. cities brings in nearly $1 billion a year according to the study on sex trafficking and prostitution published this week.

Yes, the government Authority likes to call commercial sex transactions between consenting individuals “sex trafficking,” because that term carries a more sinister connotation than just “hooking” or “prostitution.”  It’s the same with “drug trafficking,” the favorite term they like to use in connection with their War on Drugs.

Why do you suppose they don’t use the term “ice-cream-trafficking” or “candy trafficking” when talking about ice-cream parlors and candy stores? The Authority approves of those vices, at least for now; that’s why. Soon, however, the Authority might make those activities illegal too in their campaign against obesity

You see, if the Authority can get away with criminalizing commercial sex and recreational drugs, you can bet that they’ll try to get away with criminalizing ice cream and candy if the statist mood strikes them. And when they get around to it they’ll call it “ice-cream and candy-trafficking.”

The problem for the statist government Authority is that sex, drugs, rock and roll, booze, ice cream, candy and lots of other fun things are in huge commercial demand. Peaceful, honest, law abiding people aren’t going to take no for an answer when it comes to indulging in their favorite vice, especially when they realize that the government really has no right to deprive them because the laws criminalizing their desires are unconstitutional.

It all boils down to the concept of fundamental liberty. Sex between consenting individuals whether commercial or free is a means of human expression as ancient as the species. It is a fundamental right protected by the First Amendment of the United States Constitution. Likewise it is a property right protected by the Fifth Amendment since individual human beings own themselves and can do with their own bodies as they like.

The government Authority, including the courts can pretend all day long that their laws criminalizing innocent expression and conduct are constitutional, but the bottom line for peaceful, honest and rational libertarians is:

Criminalizing commercial sex is unconstitutional.