As maxims go, that prostitution is the “world’s oldest profession” is one of the more historically accurate. The practice was common in ancient Israel, rife among the Aztecs, de rigueur in both ancient Rome and Athens, customary with the Oirans in Japan, and, in various forms, pretty much universal throughout human history. In the Medieval period, the Catholic Church simultaneously condemned and tolerated the practice in Europe because the hierarchy observed that it cut down on the rates of sodomy, rape, and masturbation. If the 15th-century Catholic Church can observe such a distinction on the grounds of practicality, presumably 21st century Americans can, too.
Now, society may well elect to disapprove of prostitution. In fact, I rather do myself. But, then, while I have no desire to inject heroin into myself either, I reserve that right as a free man must. Indeed, this is one instance in which the pervasive pro-choice battle cry, “My body, my choice!” actually makes some sense. When wielded in defense of abortion, it is little more than a dysphemism, designed to distract from the fate of the other body being discussed. With prostitution, there is no such objection. Whatever you might think of her, at least Kristin Davis, the eccentric madam in the Spitzer case, is consistent. When she got out of Rikers Island in 2010, Davis ran for governor in New York on the Anti-Prohibition party ticket. As well as legalizing prostitution, Davis sought to lift restrictions on marijuana and firearms.
If your political philosophy requires the micromanagement of all individual behavior as a means of achieving established societal aims, then you will presumably find little wrong with the status quo in this area. (Here, the progressive Left forms an unholy alliance with the moral majority.) But if you are of the view that republics are supposed to maximize the liberty of the individual and to privilege its protection above the vagaries of national schemers, then perhaps you might reconsider your position. (And with rather more finesse than did Nassau County, N.Y., one hopes.)
The law of contract, which is the bedrock of liberty, has already been diluted enough in the West. There is really no good philosophical justification for forbidding a prostitute and a “John” — “Jane,” sometimes, too — from entering into whatever victimless agreement they so wish.
As it did with its fight against alcohol and has begun to do with its war on drugs, the United States should recognize that its attempt to eliminate prostitution has been a failure. “Legal” does not equal “moral,” and it never will, but a move by the states to legalize and regulate the practice may help to take the industry out of the hands of criminals and to allow regulation of what is, frankly, an inevitability. As Reason’s Jacob Sullum argues:
The black markets created by such edicts are dangerous places characterized by fraud and violence, in contrast with the honesty and peace that tend to prevail in legal versions of those very same markets. Contrast the prostitution business in New York and in Nevada, or the booze business before and after December 1933.
Ronald Reagan used to joke that politics, “the second-oldest profession,” “bears a striking resemblance to the first.” Eliot Spitzer was drummed out of one profession for dallying in the other while calling vehemently for the prosecution of those similarly indulging themselves. Whether he is allowed to return to the fray is up to the voters of New York City. If the answer is “No,” one hopes that they will remember him more for his betrayal, for his hypocrisy, and for his breaking a bad law while obliged to uphold it than for his foray into a world that, for better or for worse, has remained zoetic since the age of the First Babylonians.
— Charles C. W. Cooke is a staff writer at National Review.