How Prostitution Killed the Constitution

This year marks the centennial of the Mann “White Slave Act,” when Congress made it a federal offence to transport a woman across state lines for “immoral purposes.” Though the act is still on the books (as former New York Governor Eliot Spitzer can tell you), and has been made gender-neutral, it is usually seen as a relic of nineteenth-century moralism. In fact, no act did more to overturn the nineteenth-century constitutional order. The Mann Act was boldly challenged the idea that the Constitution limited Congress’ power the ends enumerated in Article One, section eight. It established an all-purpose federal “police power” that now permits Congress to regulate just about everything.

By 1910, Congress had already taken some steps toward the establishment of a police power–outlawing, for example, the interstate shipment of lottery tickets and of impure food and drugs. The U.S. had recently ratified a multinational treaty to stamp out the international trafficking in prostitutes. The act’s proponents emphasized that it was an attack on the big business of “commercialized vice.” The press and U.S. officials, particularly U.S. Attorney Edwin Sims in Chicago, claimed that a vast “white slave trust” was operating in the country, when in fact there was little coerced prostitution at all.

The bill raised constitutional objections in the House, often from states-rights advocates. But prostitution was so universally reviled that most overcame their constitutional scruples. Rep. William Cox of Indiana had doubts as to the bill’s constitutionality, but said that he “would unhesitatingly resolve that doubt in favor of its constitutionality on account of the enormity of the crime sought to be stopped and the evil intended to be remedied…. Who can be hurt by its provisions? None but the guilty.” The bill’s sponsor, Illinois Republican James R. Mann, claimed that the white-slave traffic, “while not so extensive, is much more horrible than any black-slave traffic ever was.” New York Representative William Sulzer denounced the “quibbling in regard to the constitutionality of the provisions of this bill. In this frightful matter I shall not allow technicalities to cloud my sense of immediate duty.” In an ominous sign of Congress’ progressive abdication of its constitutional duty, he said, “The courts must take the responsibility for its constitutionality.”

The most important question about the statute was whether its applicability to “any other immoral purpose” included more than large-scale commercialized or coercive prostitution. Almost immediately, federal prosecutors went after consenting fornicators and adulterers, absent any coercion or commercial exchange. The act also abetted blackmailers. But Congress did not amend the act to curb these abuses. The Supreme Court unanimously upheld the act against constitutional challenge in 1913. What would later be called a constitutional “right to travel” the Court dismissed as confusing “a right exercised in morality to sustain a right to be exercised in immorality.” Justice Joseph McKenna admitted that “our dual form of government has its perplexities,” but concluded that “surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.” In acting against these evils, Congress “may adopt not only means necessary but convenient.”

This case, Hoke v. United States did not involve coercive “white slavery,” but it did at least involve commercial prostitution. The Court subsequently gave its approval to prosecutions of a non-commercial nature. Shortly after Woodrow Wilson took office, Drew Caminetti, the son of his immigration commissioner, was arrested for traveling across state lines and engaging in sexual relations with a woman not his wife. The relationship was completely voluntary and not commercial. The Justice Department could not discontinue the case, begun under the previous, Republican administration, lest it give an impression of political favoritism. When Caminetti appealed his conviction, the Supreme Court upheld this application of the Mann Act. Justice William Day declared for the majority that it was compelled to abide by the plain words of the act, that any “immoral purpose” was enough. Justice McKenna for the dissenters claimed that the title, “White Slave Act,” and legislative history showed that Congress intended to reach only “commercialized vice, immoralities having a mercenary purpose… vice as a business.” “Everybody knows that there is a difference between the occasional immoralities of men and women and that systematized and mercenary immorality epitomized in the statute’s graphic phrase, ‘white slave traffic.'” Nevertheless, Mann wrote to Justice Day to congratulate him on his proper interpretation of the act. There would be nearly five thousand Mann Act convictions over the next decade, a majority of which were non-commercial.

The Mann Act was the real beginning of the Bureau of Investigation (later, the F.B.I.), which then used Prohibition to extend its power. The bureau secured five thousand Mann Act convictions in the 1920s. Bureau chief J. Edgar Hoover personally led mass raids, and acquired information that compromised public officials. The act (like the income tax laws) was used to get gangsters who could not otherwise be convicted, and often targeted blacks who traveled with white women (most notably black heavyweight champion Jack Johnson), political dissidents, and other unpopular minorities.

The Mann Act showed how far the federal police power had been extended. Federal power “to regulate commerce among the states” had been extended to moral regulation, and might therefore be extended to any other kind of regulation. This went beyond the attempt to prohibit interstate shipment of things, as Attorney General Philander Knox put it, “noxious or dangerous in themselves,” which had heretofore been widely regarded as the limit of the police-power extension of the commerce power. In the Mann Act, there were neither things nor commercial activity involved. Chief Justice John Marshall provided a famous definition of what “commerce among the states” meant in 1824. Commerce, he said, “undoubtedly, is traffic, but it is something more: it is intercourse.” Only the most extravagant extension of this definition of commerce could reach cases like that of Caminetti, of consensual if illicit trysts. After the New Deal swept away the last vestiges of constitutional limitations on Congress’ powers, later legislators would not even bother to give pretexts to their attempts to regulate gun possession, domestic violence and, now, health care.