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Keywords

Due process, constitution

Abstract

Over 150 years ago, Congress passed and the states ratified the Fourteenth Amendment, banning states from passing or enforcing laws based on unconstitutional classifications and protecting persons in the United States from adjudication without due process. For over one hundred years, however, courts and commentators have been fighting over the Fourteenth Amendment’s Due Process Clause’s controversial protections of substantive rights. The U.S. Supreme Court has applied inconsistent methodologies to these substantive due process claims, attempting to walk a tightrope between the Court’s power to subjectively announce new rights as “fundamental” and the traditional role of the states’ plenary police powers. The Court’s ability to announce new subjective rights has morphed and evolved over time—both in terms of the rights elevated, ranging from economic rights to contraception, child-rearing, and, most recently, marriage equality, and the methodology used to elevate those rights. Against this backdrop, there currently is a circuit split regarding the status of state laws criminalizing the sale of sex toys. According to some, these devices are an essential element of sexual liberty and their criminalization represents paradigmatic government overreach. Conversely, supporters of state laws criminalizing sex toys believe their regulation falls within the states’ traditional authority to legislate questions of moral judgment. This Note examines the tension between these two conceptions of sex toy regulation and criminalization and the broader ramifications for substantive due process methodology. Since choosing whether or not to use sex toys is a consequential decision implicating sexual autonomy and privacy, state laws that burden their use unconstitutionally step into the protected sphere of liberty that the Fourteenth Amendment protects.

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