September 19, 2004
Makeup
I have made my own distaste for makeup all too clear in the past. So, I am eager to see some folks coming around. Writes Amber Taylor:
I've been going almost entirely without makeup for the last several weeks. I have noticed several things:
-My skin is better. If I have a blemish, it gets a dab of concealer, but the rest of it gets to breathe and, evidently, likes it that way.
-I am acutely aware of how much makeup other women wear. I have a better sense of the artificiality of their appearance now that I have had a chance to see the difference between my old made-up face and its freshly scrubbed incarnation. I wore some lipstick yesterday and it looked corpse-like and weird. Similarly, the strangeness of other people drawing lines and painting bits of their faces has been highlighted. I wonder what other women would look like without their makeup.
-I am better at picking clothes. Not wearing makeup forces me to confront the fact that some tones and colors are just not flattering, instead of telling myself that with the proper shade of red lipstick a red hat wouldn't wash me out.
On a related note, I'd like to share this Miss Manners' point (from Miss Manners' Guide to Rearing Perfect Children):
Dear Miss Manners: I am a young professional woman who wears no makeup, because it's not my style and I think it's yucky (as do most of my friends, particularly men). My mother suggests, and I tend to agree, that I should wear makeup for my upcoming role as bridesmaid.
Am I right to feel so obligated? Are there professional or social circumstances under which a woman really ought to wear makeup, and why? Does one wear it because it is part of a uniform, or because one is to spare spectators the sight of pale lips, short lashes and blemished skin?
Gentle Reader: Like the gentle reader who wondered timidly if it would be wrong to add a few personal words to a purchased greeting card, you have left Miss Manners shaking her head and muttering about what the world has come to. She has long acknowledged that the rule about no nice lady painting is defunct, but not that it has been reversed, so that a lady must paint.
No, you need not wear makeup. If anybody questions you on this, just say that you went to a lot of trouble and expense to achieve the latest "natural look," and are pleased to hear that you have succeeded.
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Surviving Lawrence
Having raised this issue over in comments at De Novo, I thought I would mention it here.
In Barnes v. Glen Theatre, the Court and Justice Scalia (concurring) both argued that the government's power to criminalize nude dancing stems from its ability to regulate the public morality. This is fine, so far as it goes, but after Lawrence v. Texas we learn that regulating the public morality is not a sufficient justification to criminalize purely private conduct.
So the question is: does the government's ability to regulate purely consensual adult nudity in private places survive Lawrence? Will the Constitutional rule be any different for bedrooms, motel rooms, theaters, or strip clubs?
Here's a relevant passage from Scalia's concurrence:
The dissent confidently asserts that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for re- stricting nudity in public places generally, but there is no not-injure-someone-else" beau ideal -- much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them) there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See Bowers v. Hardwick, 478 U.S. 186, 196 (1986)...
Incidentally-- many of the prohibitions Scalia lists above will of course survive Lawrence, but probably because people will be able to come up with other justifications to keep them, separate from the "contra bonos mores" that Lawrence held could no longer constitute a rational basis.
Is there some other justification (other than "morals", "offense to third party viewers," or "offensive content", that is) that the state could use to uphold bans on adults consensually waving their genitals at one another in private places?
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Does the First Amendment mean anything?
There are some turns of phrase so weighty and so well-worn that it is tempting to use at every turn, and in place of original thinking. This is especially true for those of us who read a lot of cases and tend to sing the songs therein.
So, does the First Amendment mean anything?
If the First Amendment means anything, it means that regulating speech must be a last -- not first -- resort. [Thompson v. Medical Center; U.S. Sup. Ct.]
if the First Amendment means anything, it means that a man cannot be sent to prison merely for distributing publications which offend a judge's esthetic sensibilities, mine or any other's. [Ginzburg v. New York; U.S. Sup. Ct. Stewart, dissenitng.]
If the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. [Stanley v. Georgia; U.S. Sup. Ct.]
If the first amendment means anything, it should be clear that the Minneapolis ordinance [requiring material for sale that is "harmful to minors" to be covered] is unconstitutional on its face. [Upper Midwest Booksellers v. Minneapolis; 8th Circuit. Lay, dissenting.]
If the First Amendment means anything, it means that "government has no power to restrict expression because of its message, its ideas, its subject matter or its content." [Daily Herald v. Munro; 9th Circuit.]
But if the First Amendment means anything it means that [political speech] is too precious by far to be curtailed [because of the proliferation of campaign signs]. [Rappa v. New Castle; District Court of Delaware]
If the First Amendment means anything, it means that Government shall not look to subject matter in regulating expression. [Lawrence v. Appleton; Eastern District of Wisconsin]
Now recall that in a conditional statement, (If p, then q), if the consequent (q) is false, then so too is the antecedent (p). By my count only one, or maybe two of the antecedents above is true under current case law (regulating speech must indeed be a last resort. I have no idea what the current Constitutional rule is about the regulation of yard signs.) It can only follow, then, that if even three of the statements above are valid, the antecedent is false.
[Going down the list: A man can indeed be sent to prison for distributing things that offend a judge's esthetic sensibilities; the obscenity test requires the court's determination of whether an item has any artistic importance (Miller v. California). Similarly, the state may indeed tell a man what movies he may watch in his own home, since it can ban him from watching child pornography there (Osborne v. Ohio). The Minnesota statute was not held unconstitutional on its face. And government may indeed make content-based regulations of speech (Burson v. Freeman, to name but one).]
Anyway, whether the First Amendment means anything or not, perhaps we could declare a moratorium on setting up still more conditionals and switch to a more direct form of speech?
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