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Summary
Summary
Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.
Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before "quickening" remained legal, and prosecutions for sodomy were almost nonexistent.
The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation's founders. Spurred on by Anthony Comstock, America's most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word "unclean" be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.
The twentieth century gradually saw the emergence of bitter divisions over issues of sexual "morality" and sexual freedom. Fiercely determined organizations and individuals on both the right and the left wrestled in the domains of politics, religion, public opinion, and the courts to win over the soul of the nation. With its stirring portrayals of Supreme Court justices, Sex and the Constitution reads like a dramatic gazette of the critical cases they decided, ranging from Griswold v. Connecticut (contraception), to Roe v. Wade (abortion), to Obergefell v. Hodges (gay marriage), with Stone providing vivid historical context to the decisions that have come to define who we are as a nation.
Now, though, after the 2016 presidential election, we seem to have taken a huge step backward, with the progress of the last half century suddenly imperiled. No one can predict the extent to which constitutional decisions safeguarding our personal freedoms might soon be eroded, but Sex and the Constitution is more vital now than ever before.
Author Notes
Geoffrey R. Stone is the author of the prize-winning Perilous Times. He is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and one of our nation's leading constitutional scholars.
Reviews (5)
Publisher's Weekly Review
Constitutional scholar Stone (Perilous Times) explores how the United States has regulated human sexuality from the colonial period to the present day. Beginning with a brief discussion of attitudes toward sexuality in the ancient world, medieval Europe, England, and Puritan New England, the author then outlines the Enlightenment-era concerns regarding government, religion, and individual freedom that shaped the U.S. constitutional law, and the lasting influence of the Second Great Awakening on morality laws. After providing this background, the work combines a thematic and roughly chronological survey of Christian attitudes toward, and U.S. legal treatment of, three areas of human sexuality: sexual speech and obscenity, abortion and contraception, and homosexual acts and identity. This title is a commanding synthesis of scholarship on over two centuries of American legal debate and practice regarding these issues, and would work well as the core text for a course of the subject. Less developed is the history of Christian attitudes regarding sexuality, with the work repeatedly situating American Christianity in opposition to more tolerant secular values. The work also lacks any substantive discussion of non-Christian religious approaches to sexuality and liberty. Despite these limitations, Stone's analysis is highly recommended for anyone seeking an introduction to the history of U.S. law and sexual expression. (Mar.) © Copyright PWxyz, LLC. All rights reserved.
Booklist Review
*Starred Review* Sex comes first in legal scholar Stone's (Perilous Times: Free Speech in Wartime, 2004) massive book. Indeed, the Constitution arrives only after page 100. Before then, part one provides an elegantly literate précis of historical attitudes about sex in the U.S.' line of cultural inheritance, from classical Greece and Rome and the Bible to Christian Rome and Western Europe to Puritan and eighteenth-century England and its American colonies. Throughout, Stone focuses on obscenity, birth control, and homosexuality precisely the matters that U.S. law has struggled with from the mid-nineteenth century onward. That troika of torments is less evident in part two, Founders, which tracks the deliberations over the relationship of religion and government that led to a Constitution without mention of God, and, eventually, the First and Ninth Amendments, the concept of unenumerated rights, and Jefferson's wall of separation between church and state. Part three consists of brilliant historical distillations of social phenomena the Second Great Awakening, the suppression-of-vice movement, the anticontraception and antiabortion movements, and the criminalization of homosexuality and their legal ramifications. The last three parts present a century of cases that have, Stone says, brought the U.S. to a revolutionary moment, a high point in personal rights of sexual expression. The story continues, of course, but this is the definitive account of its past and present.--Olson, Ray Copyright 2017 Booklist
New York Review of Books Review
THE EVANGELICALS: The Struggle to Shape America, by Frances FitzGerald. (Simon & Schuster, $35.) FitzGerald's fair-minded history focuses on the doctrinal and political issues that have concerned white conservative Protestants since they abandoned their traditional separation from the world and, led by Billy Graham and others, merged with the Republican Party. WHITE TEARS, by Hari Kunzru. (Knopf, $26.95.) Two white hipster record producers create a "classic" blues song as an internet hoax, but it turns out (perhaps) to be real. This dark, complex ghost story about racial privilege, cultural appropriation and (of course) the blues is written with Kunzru's customary eloquence and skill. SEX AND THE CONSTITUTION: Sex, Religion, and Law From America's Origins to the Twenty-First Century, by Geoffrey R. Stone. (Liveright, $35.) A professor's history takes off as it approaches the increasingly tolerant present; Stone can recognize a good anecdote or a colorful character when he sees one. JERZY, by Jerome Charyn. (Bellevue Literary, paper, $16.99.) This novel, based on the life of the celebrity fiction writer and fabulist Jerzy Kosinski, has a light touch but manages to lift heavy subjects. Charyn makes the real and the imagined sound equally plausible. BLITZED: Drugs in the Third Reich, by Norman Ohler. Translated by Shaun Whiteside. (Houghton Mifflin Harcourt, $28.) The Third Reich was literally an altered state, according to Ohler's provocative account: methamphetamines for the SS and the troops, along with factory workers and housewives; cocaine, steroids, sex hormones and an early form of OxyContin for the Führer. THE NOVEL OF THE CENTURY: The Extraordinary Adventure of "Les Misérables," by David Bellos. (Farrar, Straus & Giroux, $27.) Rarely has a work of literature suffered so at the hands of publishers, translators, filmmakers and musical impresarios, as Bellos's impeccably researched and pithily written book demonstrates. It doubles as a fascinating partial biography of Victor Hugo. EVENINGLAND: Stories, by Michael Knight. (Atlantic Monthly, $25.) Knight pays careful writerly attention to the details of desperation among prosperous characters in his impressive story cycle set in and around Mobile Bay, Ala. The ghost of Walker Percy hovers. THE IDIOT, by El if Batuman. (Penguin Press, $27.) An innocent, language-intoxicated teenager, the daughter of Turkish immigrants, arrives at Harvard in the '90s to pursue love and (especially) literature in Batuman's hefty, gorgeous digressive slab of a novel. EARTHLY REMAINS, by Donna Leon. (Atlantic Monthly, $25.) The seemingly unstoppable polluting of Venice's great lagoon is at the heart of this new mystery. The 26 th of Leon's novels featuring Commissario Guido Brunetti, it is one of her best, and saddest. The full reviews of these and other recent books are on the web: nytimes.com/books.
Kirkus Review
Sexual expression, obscenity, contraception, and abortion are the focus of this wide-ranging legal, political, and social history.Stone (Law/Univ. of Chicago; Speaking Out!: Reflections on Law, Liberty and Justice, 2010, etc.), a constitutional scholar whose previous books include an award-winning history of free speech, offers a broad, fascinating overview of the nation's shifting, often incendiary, attitudes toward sexuality and the impact of those attitudes on politics and law. Colonists "clearly and emphatically rejected" Puritans' repressive views about sex, and the country's founders, Stone asserts, had no interest in regulating sexuality nor in promoting Christianity. Most were "broad-minded skeptics who viewed religious passion as divisive and irrational, and who consistently challenged, both publicly and privately, traditional Christian dogma." The claim that America is a "Christian nation" originated in the Second Great Awakening, which swept the country from the 1790s to the 1840s. At a time of unsettling social change, "charismatic preachers" excited religious passions that infused "politics, culture, education, relations between the sexes, attitudes about sex," and, most significantly, views on the relationship between religion and government. Believing sex to be sinful, evangelicals mounted a campaign against masturbation and contraception; without fear of pregnancy, they claimed, women's inherent lasciviousness would be uncontrollable. After the Civil War, those ideas were taken up by Anthony Comstock, who policed sexuality with unabated vigor, specifically the dissemination of obscene material through the postal service; obscenity laws persisted even after his death in 1915. In the 1970s, Protestant fundamentalists incited a third awakening, embraced by the Republican Party that coveted the voting power of the Moral Majority. Stone enlivens his narrative with deft portraits of the many judges involved in cases on obscenity, contraception, abortion, and same-sex marriage. Some Supreme Court justices, appointed to uphold the views of the Christian right, disappointed their constituencies. The author applauds decisions that reflect the "protection of human dignity and equality" and believes, maybe too optimistically, that religious groups are now "on the defensive." A compelling history of a nation grappling with the moral and legal freedoms that the founders strived to ensure. Copyright Kirkus Reviews, used with permission.
Library Journal Review
Constitutional scholar Stone (Edward H. Levi Distinguished Service Professor of Law, Univ. of Chicago Law Sch.) tackles his subject with serious intent and novelistic sweep, along the way dispatching the notion that the nation's founders cared about sexual behavior. Obscenity wasn't illegal back then, and the criminal code didn't consider abortion a criminal matter until the midpoint of pregnancy. Then as Americans settled in for the long haul, their religious fervor sparked laws intended to punish non-status quo sexual conduct-with women being the frequent target of moral arbiters. Stone is aided by his narrator, William Dufris, who deftly evokes a host of judges, crusaders, professional prudes, and sexual outlaws. VERDICT A work this wide-ranging risks turning ramshackle; not so with this duo in charge. ["The definitive work on the topic": LJ 2/15/17 starred review of the Liveright: Norton hc.]- Kelly Sinclair, Temple P.L., TX © Copyright 2017. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
Table of Contents
| List of Illustrations | p. xix |
| Acknowledgments | p. xxiii |
| Prologue | p. xxvii |
| Part I Ancestors | |
| Chapter 1 The Ancient World: The Triumph of Augustine | p. 3 |
| "The Things of Aphrodite" | p. 5 |
| The Roman Way | p. 9 |
| The Hebraic Tradition | p. 12 |
| Early Christianity | p. 15 |
| Saint Augustine and the Pelagian Controversy | p. 17 |
| Chapter 2 The Power of Revealed Truth | p. 25 |
| "The Badge of Moral Authority" | p. 27 |
| Medieval Carnality | p. 29 |
| Self-Pollution and Fornication | p. 31 |
| Holy Wedlock | p. 33 |
| Concubitus ad non Debitum Sexum | p. 34 |
| "In No Way Superior to the Beasts" | p. 40 |
| Challenging the One True Church | p. 41 |
| Chapter 3 England, the Enlightenment, and "the Age of Eros" | p. 47 |
| Puritans and Libertines | p. 48 |
| Mollies and Tribades | p. 53 |
| Sexual Literature: "Punishable Only in the Spiritual Court" | p. 55 |
| Memoirs of a Woman of Pleasure | p. 60 |
| "The Age of Eros" | p. 64 |
| Part II Founders | |
| Chapter 4 From Puritanism to the Pursuit of Happiness | p. 73 |
| The Puritan Way | p. 75 |
| "Life's Pleasures" in Eighteenth-Century New England | p. 80 |
| Sex in the Carolinas, the Chesapeake, and the Mid-Atlantic Colonies | p. 82 |
| "An Amazing Variety of Erotica" | p. 83 |
| The City of Brotherly Love | p. 84 |
| We Must Guard Against "Our Own... Licentiousness" | p. 87 |
| Chapter 5 The World of the Framers: A Christian Nation? | p. 89 |
| "Not in an Age of Faith, but in an Age of Reason" | p. 91 |
| Franklin: A "Thorough Deist" | p. 94 |
| Jefferson: A "Deliria of Crazy Imaginations" | p. 95 |
| Adams: "Be Just and Good" | p. 99 |
| Washington: "A Roman Stoic Rather Than a Christian Saint" | p. 101 |
| Paine: "A Villain and an Infidel" | p. 103 |
| "The Civil Morality Necessary to Democracy" | p. 106 |
| Chapter 6 "The Fundamental Maxims of Free Government" | p. 109 |
| "The Care of Each Man's Salvation Belongs Only to Himself" | p. 111 |
| One of the "Glories of the New Constitution" | p. 112 |
| "To Pursue the Common Good" | p. 113 |
| "The People Themselves": The Bill of Rights and the Origins of Judicial Review | p. 115 |
| Unenumerated Rights: The "Immutable Maxims of Reason and Justice" | p. 122 |
| "A Wall of Separation" | p. 124 |
| The End of the Enlightenment | p. 127 |
| Part III Moralists | |
| Chapter 7 The Second Great. Awakening | p. 131 |
| "A Spasm Among the Populace" | p. 133 |
| "Moral Militia" | p. 134 |
| Sunday Mail: "To Restore Godly Order" | p. 136 |
| Blasphemy: "A Gross Violation of Decency" | p. 140 |
| The Temperance Movement | p. 143 |
| Slavery: "The Blood of Souls" | p. 144 |
| "Aroused Lust" | p. 145 |
| Freethinkers and Free Love | p. 149 |
| The End of the Second Great Awakening | p. 151 |
| Chapter 8 "Tending to Corrupt the Public Morals": The Meaning of Obscenity | p. 153 |
| "There Ought to Be a Law" | p. 156 |
| Enter Comstock | p. 157 |
| In Defense of the "Canker Worm" | p. 160 |
| Serious Literature and the Standards of the Day | p. 165 |
| Banned in Boston | p. 167 |
| After Comstock | p. 168 |
| Theater and Film | p. 171 |
| "Dirt for Dirt's Sake" | p. 174 |
| The "Evil Stench" of Obscenity | p. 177 |
| Chapter 9 Contraception and Abortion: From the Founding to the 1950s | p. 179 |
| What Would Keep Them Chaste? | p. 181 |
| "The Evil of the Age" | p. 184 |
| The American Medical Association | p. 187 |
| Enter Comstock (Again) | p. 189 |
| Margaret Sanger and the Birth of the Birth Control Movement | p. 194 |
| "God Must Have Sent You to Us" | p. 200 |
| Contraception: A Mortal Sin? | p. 202 |
| Birth Control in the Twenties | p. 204 |
| "Many People Have Changed Their Minds" | p. 206 |
| Chapter 10 "Strange Freaks of Nature" | p. 211 |
| Looking the Other Way | p. 212 |
| "Strange Freaks of Nature" | p. 214 |
| Fairies, Queers, and Trade | p. 220 |
| World War I, Prohibition, and the Twenties | p. 223 |
| Depression | p. 228 |
| Chapter 11 Coming Out | p. 231 |
| The Good War | p. 233 |
| The Lavender Scare | p. 238 |
| "A Particularly Vicious Circle" | p. 243 |
| Alfred Kinsey, Evelyn Hooker, and the American Law Institute | p. 246 |
| Coming Out | p. 250 |
| Stonewalled | p. 252 |
| Backlash | p. 256 |
| Part IV Judges: Sexual Expression and the Constitution | |
| Chapter 12 Obscenity and the First Amendment: "A Corrupting and Debasing" Influence | p. 263 |
| The New Purity Crusade | p. 265 |
| "More Speech, Not Enforced Silence" | p. 267 |
| "Papa Knows Best" | p. 269 |
| "A Great and Mysterious Motive Force" | p. 272 |
| Memoirs of a Woman of Pleasure Revisited | p. 278 |
| "Dirty Books Day" | p. 280 |
| "Private Thoughts" | p. 282 |
| Redrup | p. 283 |
| "A Magna Carta for Pornographers" | p. 284 |
| Miller and Paris Adult Theatre | p. 287 |
| Chapter 13 The End of Obscenity? | p. 295 |
| The Meese Commission | p. 297 |
| CEOS | p. 298 |
| Shifting Realities | p. 301 |
| "To Advance the Cause of Justice" | p. 303 |
| "The War Is Over and We Have Lost" | p. 308 |
| Porn and the Birth of the Christian Right | p. 311 |
| Chapter 14 Sex and Speech in the Twenty-First Century | p. 313 |
| "Burn the House to Roast the Pig" | p. 314 |
| "Filthy Words" | p. 317 |
| Putting the Burden Where It Belongs | p. 322 |
| "People Should Not Expose Their Private Parts Indiscriminately" | p. 325 |
| Child Pornography | p. 332 |
| Public Museums, Libraries, Schools, and Arts Programs | p. 334 |
| What Have We Wrought? | p. 340 |
| Part V Judges: Reproductive Freedom and the Constitution | |
| Chapter 15 The Constitution and Contraception | p. 351 |
| Getting to Griswold | p. 355 |
| The Right to "Marital Privacy" | p. 360 |
| Whether "To Bear or Beget a Child" | p. 363 |
| Sanger's Triumph | p. 366 |
| Chapter 16 The Road to Roe | p. 369 |
| The American Law Institute, the Thalidomide Scare, and the Dark World of "Back-Alley" Abortions | p. 370 |
| Religion and Politics | p. 374 |
| The Rising Voice of the Women's Movement | p. 376 |
| The Battle for Legislative Legalization | p. 378 |
| Turning to the Courts | p. 382 |
| Roe | p. 385 |
| Reaction | p. 393 |
| To Boldly Go... or Not? | p. 397 |
| Chapter 17 Roe and Beyond | p. 399 |
| Rise of the Christian Right | p. 401 |
| Resisting Roe | p. 406 |
| Refining Roe | p. 409 |
| "Our Worst Fears Have Just Been Realized" | p. 412 |
| Planned Parenthood v. Casey: "I Fear for the Darkness" | p. 415 |
| "Partial-Birth" Abortion | p. 420 |
| "In the Mold of Scalia and Thomas" | p. 422 |
| "Partial-Birth" Abortion Revisited | p. 425 |
| Abortion Today | p. 428 |
| "Undue Burden" and the Future of Abortion | p. 434 |
| Part VI Judges: Sexual Orientation and the Constitution | |
| Chapter 18 "The Gay Moment" | p. 443 |
| "The Plague of the Century" | p. 445 |
| "We Die/They Do Nothing" | p. 447 |
| "We Are Less Than We Ought to Be" | p. 448 |
| "Quit Discriminating Against People Just Because They're Gay" | p. 450 |
| "The Right to Serve the Country They Love" | p. 455 |
| "Going to the Chapel"? | p. 459 |
| Bombshells Across America | p. 463 |
| Defense of Marriage | p. 466 |
| Chapter 19 A Right to "Retain Their Dignity" | p. 469 |
| Bowers: "Homosexual Sodomy Is Immoral" | p. 471 |
| "Judeo-Christian Values... Cannot Provide an Adequate Justification" | p. 474 |
| Romer: "A Bare Desire to Harm" | p. 477 |
| Lawrence: "An Emerging Awareness" | p. 481 |
| The Court and the "Homosexual Agenda" | p. 484 |
| An Occasion for Dancing in the Streets | p. 487 |
| Chapter 20 Same-Sex Marriage and the Constitution | p. 491 |
| The Terms of the Debate | p. 494 |
| "The Right to Marry the Person of One's Choice" | p. 497 |
| "We're Going to Take You Out" | p. 499 |
| The Long and Winding Road to... the Supreme Court | p. 501 |
| Windsor: DOMA's Demise | p. 505 |
| In the Wake of Windsor | p. 508 |
| "The Other Shoe" | p. 511 |
| "The Constitution... Had Nothing to Do with It" | p. 515 |
| So, Who Is Right? | p. 516 |
| Looking to the Future | p. 521 |
| Epilogue | p. 531 |
| Notes | p. 539 |
| Index | p. 639 |
