Bloodless Coup

C'mon Joshua, if ever there was a post for you to weigh in on...

all right, i'll nibble, although right up until the end i agree with lithwick, especially with regard to her unflattering interpretation of lawrence, in which a surprisingly solid coalition trucked out the surprisingly shaky language from casey that scalia has dubbed the "sweet mystery of life" passage, in one of his few bon mot i think wholly fair. which of course is not to say i think lawrence wrongly decided; plainly it reached the right result. but just as roe could have been more elegantly crafted, so lawrence could have been.

without even reading the opinion in question in lithwick's column, however, there's a categorical difference between recognizing the individual's right to behave as she chooses in her bedroom with another consenting adult and finding unconstitutional laws that burden the fetish industry or one's ability to find sexual parephernalia in the neighborhood five and dime.

notwithstanding lawrence, regardless of the alarmist tripe propounded by the dissenters (and according to lithwick recycled in the 11th cir's opinion), states have broad powers to decide how to regulate commercial conduct, especially that implicating moral conduct, within their borders. it's not a far cry from ruling this AL statute unconstitutional to demanding that every pharmacy in the state keep on hand a supply of astroglide to better facilitate one's right to do whatever in the sack (or on the rack, heh). actually, a more apt analogy would be to say that it's not permissible for a city to zone in such a way as to shift red light business out of a downtown district and out onto the exurban secondary highways with the strip malls, because this would unduly burden the non-car-owning poor's ability to get a hold of the good stuff. typically, federal law does not reach so far, except when such zoning constitutes an unconstitutional taking (either uncompensated or not for the common benefit -- i.e., for private interests) or a burden on expression.

if i'm not mistaken, when prohibition was repealed as a matter of federal constitutional law, part of the repeal amendment or another one that closely followed expressly reserved to the states the right to stay dry, and to prohibit commerce in alcohol from passing over its borders.

if you don't like ordering your dildos from catalogs or online, take a ride, or move the hell out of alabama.

i am not terribly upset about this, although it would be nice if AL would bring its prisons out of the age of the _titticut follies_ and into the second half of the twentieth century before tampering around with such frivolous legislation as this. but then, you know, most crime derives from sexual deviancy, so maybe outlawing trade in sex toys is in fact the most brilliant law-and-order move since the invention of the taser.

I knew we could count on you!