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PRIVACY IS FOR RICH PEOPLE. Matt beat me to the obvious point about David Ignatius's defense of David Vitter: the transaction in question can't be "private" for one of the individuals involved but criminal for the other. And in this case, it's compounded by the fact that the person being given a pass for his lawbreaking is a public official with the power to change the laws he doesn't seem to think should apply to him. Moreover, I don't think that the criminal law should apply to either party but if you're going to punish one party in a prostitution case, it makes far more sense to punish the john than the sex worker. This gives me an excuse to quote one of my favorite passages in the United States Reports, from Robert Jackson:
The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.And this is why critics of the Supreme Court's "privacy" jurisprudence are dead wrong to say that it has no connection to due process. It's not a coincidence that most "morals" legislation -- laws banning "sodomy," abortion, prostitution, etc. -- inevitably rely on extremely arbitrary enforcement to stay on the books. The selective invocation of "privacy" being invoked by Vitter's defenders is an illustration of why this is unacceptable. If the laws shouldn't be applied to Vitter, they should be repealed (and, in many cases, can properly be struck down by the Courts.) --Scott Lemieux
