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Social Change Amends the First Amendment Sex and the Constitution: Sex, Religion, and Law from America’S Origins to the Twenty-First Century by Geoffrey R

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Social Change Amends the First Amendment Sex and the Constitution: Sex, Religion, and Law from America’S Origins to the Twenty-First Century by Geoffrey R BOOK REVIEW Social Change Amends the First Amendment Sex and the Constitution: Sex, Religion, and Law From America’s Origins to the Twenty-First Century By Geoffrey R. Stone Cloth, 704 pages Liveright Publishing ISBN-13: 978-0199942039 2017, $35 Illustrations, endnotes, index BY HON. GEORGE T. ANAGNOST American history has shown, law As has never had a static role in soci- ety. Although law as announced is captured in time and is a voice for the present, the rush and interaction of social and economic forces means that laws are subject to change and reformulation. Our sense of self, the meaning of liberty, personal freedom, and the relative domains of the law and the individual have changed as our values and Professor Geoffrey Stone’s latest book, expression of ideas in America have been un- our desire to accommodate our experiences Sex and the Constitution, presents a chal- derstood and either limited or allowed to re- in the real world have undergone change. lenge to constitutional thought and the main outside the scope of legal restraint. In The world lit by sunlight and fire that John deeper question of how individual rights the 1960s, in the medium of printed word, Marshall saw from his window in the 1800s and personal freedoms have been defined Henry Miller’s semi-biographical novel Tropic is not the same world of today with its neon and legally protected since the Constitu- of Cancer was prosecuted and condemned as lights, airplanes, computers, and a virtual tion’s adoption. His presentation is one of an obscene display of lurid behavior. Today, reality of digital information stored in the historical evolution and gradualism to ex- images and graphic depictions on the internet cloud. Yet, our sense of the need for social plore sex, religion, and law from the colo- have rendered Miller’s prose non-provocative stability tells us that we may still find the nial era, the advent of mass printing, the- and hardly offensive in any real sense. law in fixed, agreed-upon sources such as ater, arts, and movies through the 1900s, At some 700 pages, Stone’s treatment the Constitution. We accept the notion that to the present, when now the U.S. Supreme succeeds in providing the reader with a com- the law’s specious present can span centu- Court is being asked to consider the very prehensive study in how sexual behavior, gen- ries, and the past, present, and future are nature of personage and gender identity. der, and social change have moved within the somehow closely and intangibly linked. Stone is a well-known constitutional structures of state and federal law. The book The safeguards and protections of the Bill scholar, and his presentation of material in a divides into periods and social times from the of Rights speak to us today just as they well-organized pathway of historical meth- Puritans and their (mostly unsuccessful) ef- spoke to Americans living 250 years ago. At ods is impressive. This book may be high- forts to regulate moral conduct surrounding least, that is what we like to think. ly recommended for the reader interested sex, gambling, alcohol, and idleness, through in a detailed analysis and historical review the First and Second Great Awakenings, to HON. GEORGE T. ANAGNOST is the presiding of how morality, religion, censorship, the the strictures of the Victorian era and the judge for the Peoria Municipal Court. arts, social conflict, medical advances, and effort to restore propriety, all the way to the 40 ARIZONA ATTORNEY SEPTEMBER 2017 www.azbar.org/AZAttorney present and the current efforts of Free Thinker, Bold Publisher the religious right to re-establish an Sex and the Constitution is published by Liveright, a most apt American way of life devoid of im- name from the founder of the publishing house Horace Liveright. proper thoughts, attitudes, practices, Wealthy enough to afford many pursuits, including a 1927 Broad- and desires. The author shows how way production of Dracula with Bela Lugosi, he published books recurrent the conflicting views and by T.S. Eliot, Ernest Hemingway, and Theodore Dreiser. A person- legal positions have been. al struggle with alcoholism may have led to his early death. The book’s various examples and discussion points are accurate. By the 1830s, evangelicals had filed hundreds of the First Amendment prevailed until 1912, able any day of the week. petitions with Congress demanding the end when revived pressure on Congress resulted In 1965, the U.S. Supreme Court’s of Sunday delivery of the U.S. mail and its in the passage of a law signed by President seminal ruling in Griswold v. Connecticut violation of the Sabbath’s commandment Taft that created a six-day work week for held that penumbral rights implied in the of a day of rest. The opposition’s count- postal employees and no mail service to the Ninth Amendment embraced a married er-argument that a prohibition for religious public. Still, as times have changed, Sunday woman’s ability to obtain information or reasons would contravene the notion of “blue laws” have abated, and now commer- treatment involving contraception. Thus, separation of church and state set forth in cial services and goods of all types are avail- $100 fines assessed against family clinic operator Estelle Griswold and Dr. C. Lee Minutis Furtis Buxton under a state statute that criminal- Historical methods is a term of art that de- ized such services were set aside. The issues scribes a rigorous process by which the histo- and debate surrounding such episodes and rian, legal or otherwise, adheres to a discipline cases remind us how entrenched the legal involving the use of primary source materials, conflicts have remained. contemporaneous contextual documents, Stone, and other scholars of his level, and with that foundation, validates theories show the distinction between constitutional or conclusions based on fact. For someone history and constitutional theory. As he ob- interested in the history surrounding the serves quite astutely, the First Amendment drafting and ratification of the U.S. Consti- protects a person’s “freedom of speech,” tution, Professor Michael J. Klarman’s The but that freedom is not defined. Thus, as Framers’ Coup may be highly recommended he notes, despite decades of effort to do as a worthwhile display of sound historical so, American law was never able to create method and constitutional exposition. At al- an objective and workable definition of ob- most 900 pages, the detailed, single-volume scenity. overview of the social and economic setting, As Stone poses the question, have we political background, and personalities cites now reached the “end of obscenity”? It to personal diaries, speeches, newspaper head- seems the answer is yes, and now the do- lines, and legislative action. It is presented in a main of the law is to identify those particu- multidimensional manner as dynamic forces are synthesized into a careful description lar practices and groups (minors for exam- of each of the articles of the Constitution and why or how each component of the ple) that may be protected from the open document took its form. environment of uncensored depictions and As Klarman notes, the story of the Constitution is the story of contingency. Its writings. ratification rested on many events and outcomes that could have been otherwise, as Sex and the Constitution ends with the evidenced by the close votes in the state legislatures approving it over the decaying Supreme Court’s recent and controversial Articles of Confederation. decisions in Lawrence v. Texas and Oberge- Is there a social cost in law when historical method is overlooked? Arizona courts fell v. Hodges and their extension of personal have often invoked, but never carefully defined, English “common law” when describ- rights to same-sex practices and marriages. ing the state constitution’s right to trial by jury. One primary historical source of En- Passage by passage and chapter by chapter, glish law is the Assize of Northampton, enacted during the reign of Henry II in 1176. Stone describes how competing interests As stated in its Latin text, from the outset, royal courts did not exercise jurisdiction and impulses—including religion, secular- over “minutis furtis” or non-felony petty thefts, which remained in the hands of local ism, science, and media—must balance the courts and nobles who conducted non-jury, summary trials in local, seigneurial courts. plain wording of the Constitution against No Arizona appellate opinion has ever cited the Assize or discussed its relevance. Cur- a society that is now counted in the hun- rently in Arizona, a person who shoplifts a $2 item can compel the state (i.e., the dreds of millions of people. And the inter- modern equivalent of the English sovereign) to provide at its sole expense trial by jury. ests, preferences, tastes, and beliefs of those Meantime, a person who vandalizes up to $1,000 of a merchant’s inventory and is many people will continue to exert social cited for misdemeanor criminal damage has the case heard as a bench trial. pressure against the legal structure upon which it rests. www.azbar.org/AZAttorney SEPTEMBER 2017 ARIZONA ATTORNEY 41.
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