Sexual Rights in America

The Ninth Amendment and the Pursuit of Happiness

Paul R. Abramson, Steven D. Pinkerton, Mark Huppin

• Publisher: NYU Press
• Year: 2003
• Print ISBN: 9780814706923
• eBook ISBN: 9780814707524
• Topic: Law
• Subtopic: Public Law
• Index: Law

The Constitution of the United States guarantees all Americans certain rights, such as the freedoms of speech and religious expression. But what guarantees our sexual freedoms?
Sexual Rights in America presents a bold and intriguing look at the constitutional basis of sexual rights in America. Resurrecting the "forgotten" Ninth Amendment, which guarantees those fundamental rights not protected elsewhere in the Constitution, Abramson and colleagues argue that the freedom to choose how, when, and with whom we express ourselves sexually is integral to our happiness. Their careful review of the historical record reveals the importance of the "pursuit of happiness" in the socio-moral philosophy underpinning the Constitution. Sexual freedoms, they assert, are cut from the same cloth as the other freedoms protected by the Bill of Rights, and therefore, should be covered by the Ninth Amendment.
Using concrete examples such as prostitution and phone sex, Sexual Rights in America illustrates the scope and limitations of Ninth Amendment sexual rights.

1
Sex and the Constitution

THE FREEDOMS OF SPEECH AND PRESS are trumpeted throughout the land. These rights are fundamental, we are told, because they form the foundations of democracy. They are so important, in fact, that they are guaranteed by the First Amendment to the United States Constitution.

But what about other forms of expression, such as sexual intimacy? Are Americans free to express themselves sexually? Specifically, are sexual rights protected by the Constitution?

If sexual freedoms do exist in the Constitution, they certainly are not explicit. Perhaps this was intentional—as though sex didn’t belong in such rarefied company as the freedoms of speech and the press, or protection against self-incrimination.

Yet, without sex, the human race cannot endure. The survival of the United States, in particular, depends upon sex. Thus, in the grand scheme of things, sex matters—certainly as much as speech and press. Moreover, ours is a nation conceived upon the “self-evident” truth that all men (and women) have a fundamental right to the pursuit of happiness. The pursuit of sexual fulfillment, we will argue, is integral to the overall happiness and well-being of the American populace.

But if sex is so important, why can’t we locate it in the Constitution? The problem, we believe, is not that sex is absent from the Constitution, but rather that it is hidden away, subsumed by the most misunderstood of the ten amendments that make up the Bill of Rights—namely, the Ninth Amendment.

The purpose of this book is to establish a vital and functional constitutional foundation for sexual rights in America, based on the Ninth Amendment. This historically neglected amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The first eight amendments of the Bill of Rights, appended to the newly fashioned Constitution in 1791, guarantee all Americans specific rights, such as the freedom of speech, the right to assemble, religious freedoms, and the right to a speedy and impartial trial by jury in criminal prosecutions. Recognizing the incompleteness of this enumeration, the framers of the Constitution crafted the Ninth Amendment to protect those rights—whether potential or extant—not captured by the delineation of the first eight amendments.¹ The Ninth Amendment is thus an explicit acknowledgment that the Bill of Rights does not, and cannot, comprehensively encompass all foreseeable fundamental rights.

The Bill of Rights comprises ten amendments, each of which, presumably, is of substantial import. Yet, prior to the landmark 1965 contraceptive rights case, Griswold v. Connecticut, the Ninth Amendment had been cited in only a handful of Supreme Court opinions and had never—Griswold notwithstanding—been the basis of a Supreme Court decision.² Far from moribund, however, the Ninth Amendment is now more vital than ever.³ As the guardian of fundamental rights unanticipated or underappreciated two centuries past, the Ninth Amendment transforms the Constitution from a static record of our forebears’ political and moral understandings into a dynamic and evolving expression of our basic rights as women and men. In this book we argue that the freedom of sexual expression merits inclusion within the Ninth Amendment’s framework of protected rights. Americans have a fundamental, “natural” right to make reproductive decisions, including the decision not to reproduce. They should be free to choose with whom they have sex, how they have sex, and under what circumstances they have sex. This freedom, we assert, is guaranteed by the Ninth Amendment of the Constitution.

This introductory chapter provides an overview of Sexual Rights in America. In it, we outline and highlight some of the main themes of the book. These themes include the historical foundations of our contention that sexual rights should be counted among the unenumerated rights protected by the Ninth Amendment, the inadequacy of protections based on ill-formulated notions of privacy, and the need to delimit sexual freedoms—just as all fundamental freedoms must be delimited—to ensure that one person’s expression of his or her sexual rights does not encroach upon the fundamental rights of others.

We begin this chapter by recounting stories, rumors, and innuendo about the sex lives of the founding fathers. The fascinating and sometimes risqué personal histories of the men who shaped this country remind us that they were sexual beings, and not, as they often are characterized, a heavenly body of men void of the usual distractions of spirit and flesh. Although sex may not have been foremost in the minds of the constitutional delegates as they attempted to create a federal government, resolve the controversies surrounding states’ rights, and navigate the aftermath of the Revolutionary War, it probably was never that far from their thoughts, if the historical accounts of their sexual escapades are any indication.

THE PHILANDERING FATHERS

It has become routine—and surprisingly banal—to uncover the sexual transgressions of twentieth-century American presidents, from John Fitzgerald Kennedy’s numerous dalliances and Jimmy Carter’s lusting in his heart, to the most recent and celebrated scandal, Bill Clinton’s illicit affair with his intern, Monica Lewinsky. Although the phenomenal publicity surrounding our presidents’ sexual misadventures is thoroughly modern, Bill Clinton was hardly the first great American to get caught with his pants down. The most prominent signer of the Declaration of Independence, John Hancock, maintained a mistress, as did many influential men of the day. The president of Harvard, Reverend Samuel Locke, was dismissed from office in 1773 after impregnating his housekeeper.⁴ Thomas Jefferson and Benjamin Franklin both had children outside of marriage. And so on.

One of the most notorious incidents of sexual indiscretion involved Alexander Hamilton, an important figure in constitutional history. Hamilton was Secretary of the Treasury at the time, and a debonair—but very married—man of thirty. According to Hamilton’s own account, during the summer of 1791, an attractive young lady presented herself at his home in Philadelphia. Mrs. Maria Reynolds, who claimed to be a member of a prominent New York family, related to Hamilton a sad tale of physical abuse and recent abandonment by her husband James.⁵ Needing money to return to her family in New York, she asked Hamilton for a small loan. Hamilton was sympathetic and agreed to lend her the money. He promised he would deliver it to her that evening.

As it turned out, he delivered more than money. According to Hamilton, “some conversation ensued from which it was quickly apparent that other than pecuniary consolation would be acceptable.”⁶ The trap was set. Hamilton devoured the bait, repeatedly, over the course of the next several months, beginning a long-running sexual affair with Missus Reynolds. But then, in December of 1791, Mister Reynolds appeared, seeking restitution for Hamilton’s “insult.” In an earnest though semiliterate letter, Reynolds accused Hamilton of taking advantage of a “poor Broken harted woman. instead of being a Friend. you have acted the part of the most Cruelist man in existence. You have made a whole family miserable.”⁷

Four days later, Hamilton received another letter from James Reynolds. The tone was similar to the first letter, but the intent was obviously different. Here’s the punch line: “God knows I love the woman and wish every blessing may attend her. [But] I Don’t think I can be Reconciled to live with her. when I know I hant her love … give me the Sum Of thousand dollars. … I will leve town … and leve her to Yourself.”⁸ Hamilton had been scammed!

Although one might expect Hamilton to put an end to the affair once the blackmail had commenced, in fact, he did quite the opposite. He thereafter paid for the privilege of the affair, in amounts ranging from $40 to $400, depending upon the negotiations between himself and Mr. Reynolds, who apparently did not “leve town.”

Eventually, Hamilton found that he could no longer afford to support his own family and the Reynoldses, so he terminated the relationship. His problems, however, had just begun. As it turned out, soon thereafter Mr. Reynolds was arrested on an unrelated matter. Upon his arrest, Reynolds claimed to have evidence, including financial receipts, that proved Hamilton had defrauded the government.

Hamilton’s political enemies were quick to exploit this “evidence,” but congressional investigations ultimately concluded that the blackmail payments had nothing to do with governmental fraud. Even though Hamilton was officially exonerated of governmental improprieties, he still felt the need to publish a ninety-five-page confession of his affair. He was determined to wipe out any doubts about the reason for his payments to Mrs. Reynolds’s husband. Hamilton concluded his confession with the hope that “bare perusal of the letters from Reynolds and his wife is sufficient to convince my greatest enemy that there is nothing worse in the affair than an irregular and indelicate amour.”⁹

Hamilton’s phraseology is instructive: his relationship with Mrs. Reynolds was “an irregular and indelicate amour.” These words are hardly a remorseful admission of sexual impropriety. They suggest, instead, that he felt only that he had behaved somewhat indiscreetly. His motives and post-hoc rationalizations are telling indications of the contemporary sexual morality. Apparently, Hamilton believed that his choice to have an affair was a moral issue, in which the government had no standing. Although Hamilton’s financial records were closely scrutinized, once the extramarital affair was corroborated, the matter was dropped. He was never prosecuted for fornication or soliciting prostitution, despite his admission of guilt.

Few men can lay claim to as varied and distinguished a litany of accomplishments as Benjamin Franklin. Franklin was a successful businessman; author of the revered Poor Richard’s Almanac; a renowned scientist (he was a fellow of the Royal Society in London and developed a comprehensive theory of electricity); and an accomplished inventor (he is credited with inventing the lightning rod and the fireplace stove). According to David Hume, Franklin was the first great American man of letters. He was also America’s first great statesman, serving as the American representative to both London and Paris, and the only person to sign all three essential founding documents: the Declaration of Independence (1776), the Treaty of Paris (1783), and the U.S. Constitution (1787).

Franklin’s sexual exploits are no less impressive: he consorted with prostitutes and had affairs with unmarried women, fathered a child out of wedlock, and produced one of America’s first pornographic works.

Franklin’s first child, William, was born in either 1728 or 1729. Franklin was not married at the time, nor was he involved in a traditional romantic relationship. Rather, William was the product of Franklin’s illicit affair with a prostitute. As A. Own Aldridge relates:

Franklin, who had an illegitimate son from a prostitute, quietly accepted the situation and recognized the offspring, who eventually became the royal governor of New Jersey. The latter had an illegitimate son of his own, whom Franklin in turn welcomed into the family; educated, and launched upon a respected career.¹⁰

An isolated indelicacy might be treated as an aberration. But there is ample evidence that Franklin was a strong proponent of sexual liberties, at least for himself. According to Aldridge, Franklin “thoroughly enjoyed wine, women, and song.… [Furthermore] Franklin’s imagination … gave free rein to his sexual fantasies, and this can be documented.”¹¹ Franklin himself worried that his frequent “Intrigues with low women” might have endangered his health.¹²

Franklin allegedly was the first American to own a copy of John Cleland’s Fanny Hill; or the Memoirs of a Woman of Pleasure (a “lively piece of cheerful and literate hardcore pornography,” according to English historian Lawrence Stone¹³). Moreover, he was widely known as the author of Advice to a Young Man on the Choice of a Mistress, which Aldridge called “the first indigenous work circulated as pornography.”¹⁴ (In this pamphlet, Franklin advised young men to consider the charms of older mistresses, because “they are more discreet in conducting an affair.”¹⁵ Perhaps Hamilton should have heeded this advice.)

Franklin’s promiscuity was widely recognized, and possibly even exaggerated, particularly by his critics. In the Memoirs of the Late Dr. Benjamin Franklin, Andrew Allen and James Jones Wilmer claimed: “It is well known, he had mistresses plenty; and there are several living testimonies of his licentious amours.”¹⁶

From Franklin’s reputation we can infer that he was pure neither of thought nor of action. Franklin was an exceptional man, in both his public and his private lives. The critical question is whether the Constitution—and the Ninth Amendment in particular—was fashioned so as to protect the kinds of choices Franklin made, and the opinions he proffered. Given his prominence, it is hard to imagine the Constitution neglecting the rights of so great a man as Benjamin Franklin.

Thomas Jefferson presents another fascinating study in moral decision making. Perhaps the foremost libertarian of his day, Jefferson was also a full participant in the business of slavery. He inherited, purchased, and sold slaves. Furthermore, it appears that he was sexually involved with one of his slaves, a young lady named Sally Hemings. The available evidence suggests that Jefferson pursued an intimate long-term relationship with Hemings, and fathered six of her children.¹⁷

According to popular accounts, Jefferson’s affair with Hemings blossomed in Paris, where Jefferson was serving as America’s Minister to France.¹⁸ Hemings had accompanied Jefferson’s young daughter across the Atlantic at Jefferson’s behest. At the time, Hemings was somewhere between fifteen and eighteen years of age, while Jefferson, a widower, was in his early to mid-forties.

A beautiful young lady of racially mixed parentage (her father and her maternal grandfather were white), Hemings must have made a striking impression in Europe. When it came time for Jefferson to return to America, Hemings wished to stay behind in Paris. Sally’s son Madison later recalled:

During that time my mother became Mr. Jefferson’s concubine, and when he was called back home she was [pregnant] by him. He desired to bring my mother back to Virginia with him but she demurred. She was just beginning to understand the French language well, and in France she was free, while if she returned to Virginia she would be re-slaved. So she refused to return with him. To induce her to do so he promised her extraordinary privileges, and made a solemn pledge that her children should be freed at the age of twenty one years.¹⁹

Our objective in relating these examples of the founding fathers’ sexual improprieties is not to condemn Hamilton, Franklin, or Jefferson, but to understand the choices they made and to shed some light on the variability of the moral climate of the times. The Hamilton-Reynolds affair illustrates that, in 1791, at least one prominent man exercised his right to regulate his own sexual behavior, in this ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Dedication Page
• 1 Sex and the Constitution
• 2 History and Interpretation of the Ninth Amendment
• 3 The Poverty of Privacy
• 4 A Solid Foundation for Sexual Rights
• 5 What Can We Learn from Dial-a-Porn?
• 6 Does Prostitution Deserve Constitutional Protection?
• 7 Child Pornography: Black, White, and Gray
• 8 The Past and Future of the Ninth Amendment
• Notes
• References
• Index
• About the Authors