Book Review: Sex and the Constitution

Sex and the Constitution:Sex, Religion, and Law from America's Origins to the Twenty-First Centuryby Geoffrey R. StoneLiveright, 2017Sex and the Constitution, constitutional scholar Geoffrey Stone's magisterial yet engrossingly readable new book, describes in great detail the efforts of governments throughout history – and of the United States government in particular – to meddle in things that are none of government's business, what Stone refers to as “morality politics.” He grounds his discussion in the ancient busybodies of Greece and Rome, moves briskly through the morbid hysteria of the Christian Middle Ages, and in less than 100 pages has arrived on the shores of the New World with the Puritans and is touring his readers through the infinitely contradictory founding of the United States, where the ever-present authorial urge to legislate pleasure has clashed from Day One with the guaranteed right to pursue happiness that's codified up front in the Declaration of Independence. The long-standing attempt of the legislative, judiciary, and executive branches of the US government to uphold not “life, liberty, and the pursuit of happiness” but “life, liberty, and the pursuit of my idea of happiness but not yours” is the main subject of Stone's book.The book is a marvel of understated learning. In comprehensive, understated chapters, Stone outlines the social and legal battles behind issues of temperance, slavery, censorship (Boston, alas, features prominently), obscenity, birth control, pornography, abortion, and of course “deviant” sexuality, which rocketed to prominence during the “Lavender Scare” conducted by Joe McCarthy to hound homosexuals out of public office:

A reign of terror came to define the lives of gay and lesbian public servants. From 1950 to 1955, the number of individuals driven out of government service each year because of their sexual orientation increased dramatically. Gay men and women employed in any capacity by the government worried “every time the phone rang” that this might be “the call that would lead to accusations of homosexual behavior and a grueling interrogation about their sex life.”

As fascinating as Stone's discussions of all these separate epochs in mandated prudery are, the greatest reward – dare one say the greatest pleasure – of Sex and the Constitution comes when our author widens his focus from the specific to the general, as when he reminds his readers that “free speech always comes at a cost” (his list of some unintended consequences that attend every advance in freedom of expression is equal parts provocative and infuriating). And the most grudgingly optimistic note sounding with increasing frequency throughout the book's final sections deals with the slow, incremental progress being made in the fight keep censors in check. And the part of that progress that's been explosive rather than incremental is oddly reassuring:

The practical reality is that essentially unrestrained adult obscenity is here to stay. Today, with the mere click of a button, search engines will instantaneously find virtually limitless websites that offer access, usually free of charge, to graphically explicit videos of masturbation, anal sex, lesbian sex, oral sex, bondage, sadomasochism, and literally anything else the mind can imagine. Whether this is good, bad, or indifferent is at this point largely irrelevant. The law has simply been overwhelmed by technology and by changing social mores … the challenge for the future is no longer how to ban such adult obscenity, but how to deal with its existence.

Whether this is good, bad, or indifferent is indeed irrelevant … and it's also clear: it's neither bad nor indifferent – it's good. Even better would be if the law finally understood that its annoying overreach extends both to the how to ban and to the how to deal, but the laws of nations have always retained just enough irrational parental overtones to resist seeing that. But in the meantime, Sex and the Constitution charts a dark history and a measurably brightening present.