•  
  •  
 

St. Thomas Law Review

First Page

1

Document Type

Article

Abstract

This article examines whether Florida can legitimately convict the swingers pursuant to the Florida Constitution specifically, and principles of constitutional law in general, and concludes that it cannot. In so doing, this article does not attempt to define privacy or to provide a taxonomy of activities that fall within its reach, which has been done quite thoroughly by others. The swingers' conduct clearly falls within what scholars have characterized as the right to sexual autonomy, personhood and freedom of association. However, rather than simply reiterating what those authors have said and applying it to the novel facts of this case, this article asks the preliminary and more fundamental question of whether the state and U.S. constitutions give the government the power to regulate the swingers' conduct in particular and sexual morality in general. Hofeldian corollaries aside, there is a subtle but important difference between the questions: Does the government have the power to criminalize X? And do I have the right to do X? In addition to refocusing the terms of the debate, focusing on whether government has been given the power is required by what I have argued elsewhere are the first principles underlying American Constitutionalism: 1) a constitution represents the will of the people as a whole, and 2) powers granted by a constitution must, therefore, either command the actual unanimous support of the people or be adopted through mechanisms designed to approximate the will of the people as a whole. Asking whether a consensus exists for the principle that a particular act or right is fundamental or implicit in the concept of ordered liberty and therefore, should be free from a particular exercise of governmental power presupposes that a consensus exists giving government the power in the first place. As this article demonstrates, that assumption is not only unwarranted, but is unconstitutional as well. Part II of this article examines whether Florida's laws against committing lewdness apply to the swingers in this case. While the Florida Supreme Court has always limited the punishment of lewd acts to circumstances in which the persons engaged in the conduct under consideration invade the rights of third persons, recent lower court decisions have moved in the direction of eliminating any requirement of injury to third parties. If the lower courts' interpretations are applied to the swingers, it would represent an effort to criminalize behavior solely to uphold a particular moral view. Part III concludes that government does not have the power to regulate individual conduct under those circumstances unless the people as a whole have granted that power to the government. Lastly, part IV examines whether the regulation of sexual conduct is justified under the states' police power and concludes that in the absence of an invasion of the rights of others, the states do not have the power to regulate the swingers. As demonstrated below, this conclusion is consistent with the doctrinal limits of the police powers of the states under both federal and state constitutional law.

Download

Share

COinS