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Subject Area: Law
Topic: The American Revolution and Constitution

§ 61.: Sumptuary laws.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 61.

Sumptuary laws.—

Of the same general character, as laws for the correction of vices, are the sumptuary laws of a past civilization. Extravagance in expenditures, the control of which was the professed design of these laws, was proclaimed to be a great evil, threatening the very foundations of the State; but it is worthy of notice that in those countries and in the age in which they were more common, despotism was rank; and the common people were subjected to the control of these sumptuary laws, in order that by reducing their consumption they may increase the sum of enjoyment of the privileged classes. The diminution of their means of luxuriant living was really the danger against which the sumptuary laws were directed. In proportion to the growth of popular yearning for personal liberty, these laws have become more and more unbearable, until now it is the universal American sentiment, that these laws, at least in their grosser forms, and hence on principle, are violations of the inalienable right to “liberty and the pursuit of happiness,” and involve a deprivation of liberty and property—through a limitation upon the means and ways of enjoyment—without due process of law. Judge Cooley says: “The ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with his own, not interfering with the reciprocal right of others, is accepted among the fundamentals of our law.”2 It is true that a public and general extravagance in the ways of living would lead to national decay. Nations have often fallen into decay from the corruption caused by the individual indulgence of luxurious tastes. But this damage to others is very remote, if it can be properly called consequential, and in any event of its becoming a widespread evil, the nation would be so honeycombed with corruption that the means of redemption, or regeneration, except from without, would not be at hand. The enforcement of the laws could not be secured. The inability to secure a reasonable enforcement of a law is always a strong indication of its unconstitutionality in a free State.

Public sentiment in the United States is too strong in its opposition to all laws which exert an irksome restraint upon individual liberty, in order that sumptuary laws in their grosser forms may be at all possible. But as far as the liquor prohibition laws have for their object the prevention of the consumption of intoxicating liquors, they are sumptary laws, and are constitutionally objectionable on that ground, if the measures are not confined to the prohibition of the sale of liquors. This is the usual limitation upon the scope of the prohibition laws. But it is said that in the States of Wisconsin and Nevada laws have been enacted by the Legislature, prohibiting the act of “treating” to intoxicating drinks, making it a misdemeanor, and punishable by fine or imprisonment. There is probably very little doubt that a large proportion of the intemperance among the youth of this country may be traced to this peculiarly American custom or habit or “treating.” But inasmuch as the persons, who are directly injured—and this is the only consequential injury which can be made the subject of legislation—are all willing participants, except in the very extreme cases of beastly intoxication, when one or more of the parties “treated” cannot be considered as rational beings—volenti non fit injuria—these regulations are open to the constitutional objection of a deprivation or restraint of liberty, in a case in which no right has been invaded. The manifest inability to secure, even in the slightest degree, an enforcement of these curious experiments in legislation has been their most effective antidote. But while, as a general proposition, we may freely use whatever food or clothing taste or caprice may suggest, without the exercise of any governmental restraint, there are some exceptions to the rule, which will probably be admitted without question. Certainly no one would seriously doubt the constitutionality of the laws, to be found on the statute book of every State, which provide for the punishment of an indecent exposure of the person in the public thoroughfares. Every one can be required to appear in public in decent attire. It is not definitely settled what is meant by indecent attire, but probably the courts would experience no difficulty in reaching the conclusion that any attire is indecent, which left exposed parts of the human body which according to the common custom of the country are invariably covered. It is questionable that the courts can go farther in the requirement of decent attire; as, for example, to prohibit appearance in the streets in what are usually worn as undergarments, provided that the body is properly covered to prevent exposure.

Another phase of police power, in this connection, is the prohibition of the appearance in public of men in women’s garb, and vice versa. The use of such dress could serve no useful purpose, and tends to public immorality and the perpetration of frauds. Its prohibition is, therefore, probably constitutional. But it does not follow that a law, which prohibited the use by men of a specific article of women’s dress, or to women the use of a particular piece of men’s clothing, would be constitutional. The prohibition must be confined to those cases, in which immorality or the practice of deception is facilitated, viz., where one sex appears altogether in the usual attire of the other sex.

[2]Cooley Const. Lim. *385.