Congress Can Criminalize a Romantic Weekend Across State Lines

In 1910, the United States Congress passed the White-Slave Traffic Act, better known as the Mann Act, prohibiting the transport of women across state lines for "immoral purposes." The intention behind the law was to strike at interstate prostitution networks and human trafficking. This is a fairly ambitious use of Congress' Commerce Power to begin with, but what happened next was even more striking. The "immoral purposes" phrasing is absurdly ambiguous, after all, so it's no surprise that prosecutors started bringing charges against people who crossed a state line merely to have sex. Consensual sex. With no money involved.

Some time in the three years after the Mann Act was passed, Farley Drew Caminetti, a married man, traveled from Sacramento, California, to Reno, Nevada with his mistress. A friend of his did the same. Their intent was very much to have sex with their mistresses in Reno. Their wives alerted the police, and Caminetti and his friend were arrested. They were then found guilty of violating the Mann Act, despite the fact that there was no prostitution involves. Extramarital affairs, after all, are considered immoral by plenty of people, and in 1913 by just about everyone. They then appealed to the Supreme Court of the United States, which, in 1917, upheld the conviction. The case was mainly concerned with statutory interpretation, i.e. did the Mann Act mean to encompass non-commercial sex in its "immoral purposes" framework, but implicitly there's a constitutional question lurking here as well. After all, two people having sex is not particularly commercial in nature, unless it's prostitution, which this case wasn't. Some readings of the Commerce Clause power might say that, while interstate crossings for commercial sex may be prohibited through that power, interstate crossings for free, consensual sex cannot be. The Court didn't read it that way, though. That's not really surprising, given that it had already upheld the Mann Act and that it has never embraced the view that "commerce" only means the narrow, economic sense of exchange of goods for other goods and/or money.

Still, I think it's kind of remarkable that Congress could, if it so chose, prohibit a young unmarried couple traveling across state lines to some resort place or whatever for a romantic weekend together. Now, perhaps these days the Court would wheel in the various individual rights provisions to limit this apparent power. Nothing in the alterations of Commerce Clause doctrine would preclude such a result, however: this is a state line crossing we're talking about, and no case has yet backed down from the notion that Congress can hit anyone or anything that crosses a state line with as much force as it wants for whatever reason it wants. Pretty striking.

(In case you're asking yourself why I just wrote a blog post that seems to bemoan the limitless scope of Congress' powers, I'm beginning to work on a paper for school in which I plan on arguing that Congress' enumerated powers should be limited even in their most concrete applications by various structural principles and through relation to individual-rights provisions.)