The Berks Barrister Summer 2017 - 27

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Unasked, however, is what limits can be put on such analysis.
If a state outlaws sex education or contraceptives, Stone is
confident that this violates the spirit of the 9th Amendment
(because he says so). He does not inquire whether this limitless
and undefinable void might also extend to knocking down
zoning laws and anti-homeschooling legislation, nor what
justiciable standards can be discovered to limit such expansive
court power.
Similarly, Stone does not consider how his "majority rules"
approach presents a danger to minorities. If the majority of our
society determines the rights protected in the Constitution,
then who protects the minorities? And if the majority or "social
shifts" are the authors of our liberties, what justifies the Court
overruling state majorities that choose to define marriage
heteronormatively?
Stone's analysis could have been much more insightful had he
taken the time to consider whether the courts' reading of sexual
liberty into our Constitution and removal of the discussion of the
morality of sex from the public square have accomplished what
their proponents intended. Interesting also would be a discussion
of how the language in Obergefell v. Hodges and its progeny
now threaten to compel and restrain entirely private conduct by
constitutional fiat. Currently, the only private conduct restrained
by the Constitution is slavery, but with the Masterpiece Cakeshop
case having now been accepted by the United States Supreme
Court for argument next term, the question is open as to whether
individuals may live in free disagreement with Court-imposed
sexual mores. Stone clearly disapproves of the efforts of moralists
to enforce a code of speech on artists in the early years of the film
industry, but does not seem bothered at all that this enforcement

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of social morals on artists continues today against cake-bakers
and florists who do not accept the government's new morality.
This isn't Stone's first literary outing. He has written a
number of other respected texts, and is considered a leading
liberal constitutional scholar. He may have benefited by
reducing his scope and focusing on the areas of his expertise.
Similarly, the vast scope of his "historical" inquiry does his
better passages great injustice. He would have been wise to
focus on the 19th and 20th centuries, which have greater
bearing on his thesis at any rate, rather than in advancing
preposterous hypotheses about everything from Augustine to
the Reformation.
The emerging field of constitutionally-guaranteed sexual
liberty will be the focus of much scholarship in the years
to come, and Stone's thesis could have been an interesting
contribution to framing what is currently an unwieldly debate.
But ultimately, I found this book to be what no book about sex
should ever be-monotonous, predictable and unfulfilling.
Joel A. Ready, Esquire, is a student
of classical literature. He holds
two Masters' Degrees in theology
and divinity and is a partner at
Cornerstone Law Firm in Blandon.

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The Berks Barrister Summer 2017

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