Toying With the Constitution

Defendants must decide by Dec. 23 whether to appeal Alabama's ban on sex toys to the U.S. Supreme Court. Sherri Williams, the owner of Pleasures here in Huntsville, says "This is a case that is certainly begging for the Supreme Court. I want to have that opportunity. Really, it is up to whether my attorneys feel this a proper time to present it to them."

The Alabama law in question may or may not be silly or misguided, but it is certainly not unconstitutional. Unfortunately, the U.S. Supreme Court has invited these kinds of lawsuits by finding a "right to privacy" amid the "penumbras and emanations" of the Constitution. Beginning with Griswald v. Connecticut and notably upheld in last year's Lawrence v. Texas decision, the "right to privacy" created by the Court threatens to bring every state action regulating private behavior under federal court jurisdiction. This is a jurisprudential mistake that President Bush should keep in mind should he get the opportunity to nominate Supreme Court justices during his second term.