Why Ted Cruz Should Not Be President

Because he believes that the United States Constitution allow states to prohibit, even criminalize, sexual self-pleasure. Money quote from David Corn’s article in Mother Jones; according to Cruz:

There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.

UPDATE: To be fair, Cruz said this in the context of a legal brief he wrote while defending the State of Texas in a lawsuit challenging a state ban on sex toys.  Lawyers often make arguments that they do not personally accept. That is part of being a zealous advocate for a client. But until I hear Ted Cruz disavow this argument, I shall assume he agrees with it.

UPDATE (4/14/2016): A few folks, whose opinions I value greatly, were surprised by this post, which seemed intended more to titilate than educate. While that was not my intention, I agree that the post failed to provide sufficient context to make it meaningful from a legal perspective, particularly to non-lawyer readers of this blog.

I wrote the post because “substantive due process” is the root of a long line of extremely important U.S. Supreme Court cases. Those cases hold that the U.S. Constitution places limits on states’ ability to interfere with some of the most personal, intimate decisions individuals and couples ever make. For example, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment protects the right of individuals to use contraception (Griswold v. Connecticut and Eisenstadt v. Baird); women’s right to choose for themselves whether to continue or terminate a pregnancy (Roe v. Wade); the right of same-sex couples to engage in intimate relations (Lawrence v. Texas) and, most recently, the right of same-sex couples to marry (Obergefell v. Hodges). Cruz’s legal argument, if accepted, would call into question the legal foundation of all of these cases.

Additionally, Cruz’s particular description of the substantive due process right at issue demeans the liberty interests at stake. When lawyers and judges engage in substantive due process analysis, an important question is how broadly or narrowly to characterize the liberty interest at issue.

To illustrate, in Bowers v. Hardwick (1986), the Supreme Court considered the constitutionality of a Georgia law that made it a criminal offense for two men to have intimate physical relations with each other. The Court said, “[t]he issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” In a 5-4 decision upholding the law, the Court answered that question in the negative.

Seventeen years later–seventeen years during which it was a criminal act in a number of states for same sex couples to have intimate relations–the Court overruled Bowers.  See Lawrence v. Texas (2003). Significantly, the Court in Lawrence rejected the way the Bowers court characterized the issue at stake:

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

Emphasis added.

Substantive due process analysis is often, perhaps always, controversial because it exposes judges to the charge that they are reading their own personal values into the Constitution.  Critics of substantive due process are often heard to say, “where in the Fourteenth Amendment, or anywhere in the Constitution, do you see the words ‘right of privacy’?” I readily acknowledge the arguments against substantive due process analysis. But, at the end of the day, I do not find them persuasive. More persuasive are the arguments that the Constitution, particularly the Fourteenth Amendment, established limits on the power of states to intrude into highly personal, intimate decisions about how people live their lives.

If elected president, Ted Cruz would appoint judges who would interpret the U.S. Constitution to allow states to regulate, prohibit, even criminalize, contraception, abortion, gay and lesbian sex and, apparently, masturbation. I don’t share that view of the Constitution.

One Comment on “Why Ted Cruz Should Not Be President”

  1. James H. Smith says:

    Persuasive writing, bravo.

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