Legal Commentary

Our governor's downfall will provoke ample commentary from bloggers everywhere:  I see no need to add to the flood.  But the event does provide an opportunity to ponder the Mann Act, a statute that seems to flaunt our ordinary conventions about the proper role of the federal government. 

The Mann Act, in its original form, illustrated the role of formalism in expanding the reach of federal law.  As a matter of constitutional interpretation, Hoke v U.S., 227 U.S. 308 (1913) seemed to suggest that Congress had the power to block movement of people across state lines for any purpose whatsoever.  Caminetti v United States, 242 U.S. 470 (1917) held that the Mann Act's prohibition on the transportation of women or girls across state lines "for the purpose of prostitution, or debauchery, or for any other immoral purpose" included the purpose of non-commercial but extra-marital sex.  Hoke would culminate in Darby's principle that, when Congress uses its power to block interstate movement of people or goods, its motive or purpose is irrelevant.  Caminetti continues to be the classic citation for the principle that the intention of Congress, as inferred from committee reports, ballot title, and social context, cannot trump the plain language of the statute.  In effect, a federal statute targeted at 'white slavery" (i.e., brothels) was transformed by the magic of judicial formalism into a catch-all device to enforce sexual morality simpliciter, contrary to any apparent congressional intention.

Hoke and Caminetti combined led to an era of federal snooping into sexual immorality.  Although the Mann Act began life as an effort to suppress international prostitution rings, David Langum reports that the statute was enforced to the tune of 400-500 convictions annually against couples crossing state lines for extra-marital but entirely non-commercial trysts.  David Langum, Crossing Over the Line: Legislating Morality and the Mann Act 139-60  (U. Chicago Press 2004).  The defendant was frequently the woman who, when she drove the car, was indicted as a co-conspirator in transporting herself across state lines for immoral purposes!  As a historical matter, the Act was often used to discredit controversial political or public figures, ranging from the boxer Jack Johnson to singer Chuck Berry.  It was not until 1986 that Congress finally got around to trimming back on the statute's application to non-commercial sexual vice, limiting its application to "prostitution or ... any sexual activity for  which any person can be charged with a criminal offense."  18 U.S.C. section 2421.

Does anyone else besides myself find the use of the Mann Act against a governor a mite disturbing, especially when enforced against someone who belong to a political party other than the President's?   Given that the state governments seem completely capable of prohibiting prostitution if they wish to do so, is the enforcement of sexual morality by the federal government a completely gratuitous -- and, therefore, politically suspect -- exercise? 

Of course, there are also the allegations of money laundering and perhaps mail fraud.  But there is no claim that Spitzer defrauded the people of New York of honest services and, therefore, no role for the feds in illuminating local official dishonesty that local pols seek to shield.  Of course, the governor's transgression occurred in Washington, D.C., an enclave in which the federal government has general police powers.   But the feds are not enforcing any D.C. ordinance.   Whose interest, therefore, are the feds serving?  Not the interests of us New Yorkers:  We can enforce -- or not-- our own laws against sexual hank-panky.  Not the residents of D.C.  The only obvious beneficiary of this prosecution is the majority leader of the New York Senate, Joe Bruno and, more generally, Republicans who have managed to eliminate a major political rival.

In short, I find the distastefulness of the governor's tawdry behavior matched only by the distastefulness of the feds' wasting taxpayer resources to enforce an utterly gratuitous federal regulation of sexual morality against a political rival of the President's. 

Of course, I am a certified federalism nut.  Does any sane person share my reservations?