Category: Government

BLUF
On the last day of the Constitutional Conventional, Benjamin Franklin was asked by a woman outside Independence Hall what kind of government had been framed by the Philadelphia Convention. His response—“A republic, if you can keep it”—summed up perfectly the challenge given to every generation of Americans since the founding era.

Tragically, it now seems clear that we did not keep what the founders gave us. But that’s on us, not them.

The Laissez-Faire Constitution.

In 1787, America’s founding fathers created the world’s first laissez-faire constitution or what I call a constitution of liberty.

The idea of a laissez-faire constitution may strike you as odd. We typically associate the term “laissez-faire” with economics, and, more specifically, with capitalism.

What, then, do I mean by these terms? What is a laissez-faire constitution or a constitution of liberty? And what’s the relationship between a laissez-faire constitution and laissez-faire capitalism?

To answer these questions, let us define our terms. Laissez-faire translated from its most common eighteenth-century French usage literally means “let it be,” “let it go,” or “leave it alone.” In the Anglo-American world, the phrase is more commonly translated as “hands off.”

But ask yourself this question: whose hands are we talking about, and who are they to be kept off? In other words, who is to let things alone, and who is to be left alone?

The answer to the first question is government, and the answer to the second is the individuals who compose civil society. Laissez-faire, then, means that government is to keep its hands off the people and leave them free to pursue their material and spiritual values.

This means that laissez-faire capitalism should be viewed less as an economic system and more as a political system. We should speak less about laissez-faire capitalism and more about laissez-faire government, although the two are clearly related. In fact, laissez-faire capitalism rightly understood means laissez-faire government.

The sole purpose of laissez-faire government is to protect the individual’s rights to life, liberty, property, and the pursuit of happiness of all citizens. A laissez-faire government is one that maintains a framework of laws that prohibits predatory force and fraud and refrains from intervening in the operation of markets, which means it must not regulate or subsidize market processes (e.g., division of labor, prices, competition, and profit).

Laissez-faire capitalism is properly seen, then, as a political system that separates economy and State, where property is privately owned, contracts are upheld as inviolable, and individuals are free to produce, trade, and compete. As a result, individuals must be left free from government coercion to create, acquire, possess, use, trade, and dispose of their property, and they must be free to form contracts for the exchange of ideas, goods, and services.

A laissez-faire government does not and will not direct private enterprise toward ends desired by government officials. Instead, a properly constructed government for a free society provides a minimal structure of rights-protecting laws, the purpose of which is to expand spheres of individual freedom and action. James Wilson made the point this way in his Lectures on Law:

By some politicians, society has been considered as only the scaffolding of government; very improperly, in my judgment. In the just order of things, government is the scaffolding of society: and if society could be built and kept entire without government, the scaffolding might be thrown down, without the least inconvenience or cause of regret.

Government rightly understood, then, exists for the sake of civil society and not the other way ‘round. A laissez-faire government is one that provides the scaffolding necessary to keep civil society civil.

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These ‘drag queen’ shows performed in front of kids is starting to get the backlash they deserve.

Tennessee Bans Pornographic Performances by “Male or Female Impersonators” Where Minors Can See Them

The newly enacted statute provides:

… “Adult cabaret entertainment” … [m]eans adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; …

“Entertainer” means a person who provides: (A) Entertainment within an adult-oriented establishment, … or (B) A performance of actual or simulated specified sexual activities, including removal of articles of clothing or appearing unclothed, [both] regardless of whether a fee is charged or accepted for the performance …;

It is an offense for a person to perform adult cabaret entertainment:
(A) On public property; or
(B) In a location where the adult cabaret entertainment could be viewed by a person who is not an adult ….

To understand this, one has to read § 39-17-901, which provides:

“Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:

1. Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;
2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and
3. Taken as whole lacks serious literary, artistic, political or scientific values for minors ….

“Prurient interest” means a shameful or morbid interest in sex;

And it’s also important to know that the Supreme Court has held that, even as to “harmful to minors” material (also known as “obscene as to minors”), “to be obscene ‘such expression must be, in some significant way, erotic.'”

This therefore means that the bill doesn’t ban drag shows generally, or even drag shows that can be seen by minors. Rather, it just bans drag shows that could be viewed by minors (or are on public property) that depict “nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse” that are “in some significant way, erotic,” appeal to minors’ interest in sex, and otherwise satisfy the three-prong.

Bans on distributing “harmful to minors” material to minors have been upheld (see Ginsberg v. N.Y. (1968), which used the then-existing definition, but which has been understood to justify the more modern definition used by the Tennessee statute). Likewise, courts have generally upheld restrictions on displaying such materials where minors can see them. So the law may well be consistent with the First Amendment, but precisely because it narrowly focuses on essentially pornographic material (in the sense of requiring depiction of nudity or sex in an erotic way that appeals to minors’ interest in sex). Drag shows that lack such material remain protected by the First Amendment, and aren’t covered by the law (though of course there might be worry that some prosecutors will overfocus on the “male or female impersonator” portion of the law and won’t pay enough attention to the other requirements).

At the same time, there are three possible twists. First, the law applies to “public property” even where minors aren’t present (e.g., if someone rents space from a government entity and puts on a show while making sure that minors aren’t admitted). This might still be upheld as a reasonable, viewpoint-neutral restriction on speech on government property that isn’t a traditional public forum. But it’s a bit complicated.

Second, one could argue that specifically targeting “male or female impersonators” makes the law an impermissibly content-based classification even within the First Amendment exception for “harmful to minors” speech that’s displayed to minors. See R.A.V. v. City of St. Paul (1992) (holding that such content-based restrictions even within an unprotected category of speech are presumptively unconstitutional).

Third, to the extent that the ban on “male or female impersonator[s]” necessarily discriminates based on sex—a woman dressed as a woman isn’t a female impersonator, but a man dressed precisely the same way is one—it might violate the Equal Protection Clause, which the Supreme Court has generally held presumptively forbids sex classifications.

Note, though, that even if the statute is struck down on the second or third grounds, the same conduct (except perhaps pornographic shows in spaces rented from the government where minors are excluded) could be banned by a general prohibition on “harmful to minors” performances where minors are present, and might indeed already be banned by Tennessee law that regulates sexually themed performances (though I’m not positive about that).