There's a lot I could say here, though most of it has been said. I would agree that prostitution is the ideal candidate for subsidiarity, mainly because my concern about it is only that it not bother me. On one end of the scale, the legendary ranches in some of Nevada's more laditudiarian counties are properly the concern of the residents of those counties, but surely none of mine. On the other end, I will happily pass any law necessary to prevent my having to pass a fishnet-clad trollop on the walk with my kids to the park.
But surely the arguments for legalization are sterile; on the contrary, if anything, the momentum is on the side of further federal restrictions. Liberals, having lost (or rather, discarded) the ability to discuss morality in terms other than power and exploitation, have framed their opposition to the trade in those terms: ie. pimps and johns use disproportionate power to exploit the women involved. The notion that the women are somehow victims rather than perpetrators is an absurd caricature of prostitution as it is actually practiced at the level of Eliot Spitzer (for instance). If the caricature is deployed on behalf of increasing the penalties for customers, okay, its dumb reasoning, but whatever. If it requires lowering the penalties for the escorts, then it's time to throw a flag on a foul play.
But that's not really what I want to write about. The subject of today's post is liberals' touching belief in the words "consenting adults" to wave away all objections.
Liberals are exceedingly selective about applying this standard. It does not apply to, say, an employer freely contracting with an employee a wage less than the legal minimum, for instance, nor does it apply to the flesh trade for those who oppose it -- for you see, these are commercial transactions that possess power differentials, and are therefore exploitative.
And sex? It depends. Liberals do not always speak with one voice. Some follow their reasoning to its logical conclusion; others stop well short of that. But pointing out liberal inconsistency is shooting fish in a barrel; it's still not why I'm writing this post.
Liberals invoke "consent", to the extent they do, as in the natural order of things. In my libertarian youth I drank deeply from this well myself, at least in regard to the law; Locke's Second Treatise was one of my favorite reads. But I have come to realize, much as I still value consent, or more broadly, freedom, as a good among many, that it is very much a cultural artifact.
I would say this is particularly true as applied to sex. Without being an historian or an anthropologist, I can say with a fair amount of certainty that from the days of our hunter-gatherer past, sexual access to women has been regarded as a valuable resource. Wars have been fought over it, and when the last blood had been spilt, well, to the victor go the spoils; consent of the women involved couldn't have been more beside the point.
"Phi's in favor of rape!" I can almost hear the usual screeching. Well, no. But I am trying to provide some historical perspective. We have, in fact, done much to prevent rape at the wholesale level described above. But we have done this by (1) building a nation-state capable of defending itself from external aggressors and (2) obtaining "consent of the governed" at a level sufficient to provide effective enforcement of the laws. These have allowed us to carve out a space where a women's consent is a necessary precondition to the lawful engagement of sexual relations. This is as it should be. But to say that consent is always and everywhere a sufficient condition is a different matter.
"The Constitution is not a suicide pact," wrote Justice Robert Jackson, and neither should the abstract idea of "consent" be allowed to undermine the society that protects it.
I heard a striking statistic about the demography of China. I have forgotten the generational span, but the numbers were startling: the generation that is coming of age, there will be 150 men for every 100 women. Now, chew on that for a moment. What do you think the attitude of the (150 - 100) x 1.3 billion chinamen without women will be toward liberal blathering about "consent" will be? Somehow I don't think they will be much impressed. Somehow, I doubt they will be amenable to abstract reasoning of any kind. I will predict, however, that these numbers describe a society that will either (1) launch a war (it won't matter much against whom) or (2) collapse into violent chaos of uncertain outcome.
There are some caveats worth mentioning here. The particular cultural practices and government policies that led to China' s demographic position are obviously different from the ones at play in the U.S. And for all the beta-male griping about the "woman shortage," and even my own jaundiced view of the hook-up culture, I will acknowledge that the "market inefficiencies" tend to work themselves out by the time women get into their 30s, and adultery and prostitution are as-yet non-mainstream phenomena.
However, this doesn't mean that our own cultural vectors are not pointing incrementally in either the Chinese direction or in some other "non-steady-state" direction all our own. It doesn't mean that every effort to arrest them should be dismissed with the "consenting adults" mantra, or that we should ignore opportunities to improve "affordable family formation".
Jim Manzi approaches the question from a more theoretical angle here.
And here an agreement (perhaps) from a woman living the life.