The History of Legalized Prostitution, 1984-2004

Before 1984 there had been scattered attempts at the state level to legalize prostitution. Most of these, however, were unsuccessful because of the unprogressive nature of state government. Since liberalization could be achieved only through federal action, Congress passed the necessary legislation in 1984, using the Interstate Commerce Clause to counter objections to the bill’s constitutionality from a few states’ rights reactionaries. (Prostitutes were clearly engaged in interstate commerce, since they did not restrict their services to men who were residents of their own states.) To ensure that the typically conservative local government could find no way to harass or prohibit prostitutes, contravening the intent of the federal law, all local regulation was prohibited, except that prostitution, like any business, could be confined to areas zoned for commercial purposes.

Civil libertarians had argued for legalization as an expansion of individual liberty, but legalization had a wider appeal on the grounds that it would allow government public health programs to deal more effectively with the spread of contagious diseases by sexual contact. Perhaps even more influential in the minds of congressmen had been the prospect of increased tax revenues for social welfare programs. Besides the state and federal income taxes on previously unreported earnings, the inelastic demand for sex (like the inelastic demand for tobacco and liquor) made it a fit object for an excise tax. A 50 per cent ad valorem tax was levied in 1985.

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John Beck

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Before 1984 there had been scattered attempts at the state level to legalize prostitution. Most of these, however, were unsuccessful because of the unprogressive nature of state government. Since liberalization could be achieved only through federal action, Congress passed the necessary legislation in 1984, using the Interstate Commerce Clause to counter objections to the bill’s constitutionality from a few states’ rights reactionaries. (Prostitutes were clearly engaged in interstate commerce, since they did not restrict their services to men who were residents of their own states.) To ensure that the typically conservative local government could find no way to harass or prohibit prostitutes, contravening the intent of the federal law, all local regulation was prohibited, except that prostitution, like any business, could be confined to areas zoned for commercial purposes.

Civil libertarians had argued for legalization as an expansion of individual liberty, but legalization had a wider appeal on the grounds that it would allow government public health programs to deal more effectively with the spread of contagious diseases by sexual contact. Perhaps even more influential in the minds of congressmen had been the prospect of increased tax revenues for social welfare programs. Besides the state and federal income taxes on previously unreported earnings, the inelastic demand for sex (like the inelastic demand for tobacco and liquor) made it a fit object for an excise tax. A 50 per cent ad valorem tax was levied in 1985.