March 11, 2008--When a self-righteous crusader like Eliot Spitzer is caught with his pants down, a lot of onlookers might feel a tinge of glee to see such hypocrisy revealed.  But the law under which he may be prosecuted, the Mann Act, is a relic that should give pause to anyone looking to hold Spitzer accountable in court on counts of prostitution.

Spitzer, the former TIME magazine "Crusader of the Year," who has previously directed his righteous fury at "high-end prostitution rings" and "sex tourism," now looks to be another law-breaking John stung by wiretaps, bank disclosures, and his own hubris and stupidity. Two big questions loom: will he resign and will he serve time?

On the latter question,The New York Times reported that Spitzer might be charged, like the four "ringleaders" of Emperors Club VIP, under the Mann Act. The nearly century-old law prohibits transporting across state lines "a woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose."

The history of the Mann Act raises serious questions about the use of federal law enforcement to investigate the private lives of consenting adults. Amid early twentieth century media hysteria and a moral panic about white farm girls being lured into cities and forced into prostitution, progressive Illinois Congressman James Robert Mann sponsored the White-Slave Traffic Act. Against the wishes of states' rights advocates, the legislation federalized vice crimes that had previously been the purview of local law enforcement.

Though primarily intended to fight prostitution, the Act substantially expanded the scope of the Federal Bureau of Investigation and soon became the starting point for a wide-range of cases, including many against consenting but unmarried couples. The first person prosecuted under the law was legendary boxer Jack Johnson.

Long before special prosecutors like Ken Starr came along, the Mann Act made fishing expeditions into private sex lives a common and controversial part of federal law enforcement.

According to the Ken Burns documentary Unforgivable Blackness, "The U.S. Department of Justice began investigating Jack Johnson for possible violations of the Mann Act almost from the moment the law went into effect in 1910, but prosecutors did not find an incident on which to build a case for over two years."

His crime had little to do with prostitution and everything to do with success in the ring and a succession of white girlfriends out of the ring. As the first black heavyweight champion, Johnson was the focus of enormous racist hostility. The Department of Justice, after failing to get Johnson's white fiance to testify against him, found a former lover and prostitute who persuaded a jury to convict. He was sentenced to the maximum penalty of one year and one day. Though Johnson and his fiance fled to Europe and, later, Latin America, he eventually served his sentence at Leavenworth.

As with the selective prosecution of Johnson, the Mann Act proved to be a powerful tool for federal authorities to harass and incarcerate other prominent but disfavored figures.

Charlie Chaplin, a longtime target of J. Edgar Hoover because of his left-wing political views, was prosecuted in 1944 under the Mann Act, though was later acquitted. Likewise, architect Frank Lloyd Wright, writer Elizabeth Smart, and University of Chicago sociologist William I. Thomas were charged, respectively, though each ultimately was acquitted or saw the charges dropped.

Though Wright, Smart and Thomas were each in consensual relationships, like Johnson and Chaplin, they had angered powerful people through their views or actions and the Mann Act proved a useful means of retaliation.

Unlike Johnson or Chaplin, however, Spitzer has actively worked to incarcerate people for their roles in the very crime he is now alleged to have committed. Such sanctimonious duplicity would seem especially worthy of sanction even if such prosecutions at the federal level are now rare. Sending Spitzer to jail for his "sex trafficking" would certainly teach him, and others, a lesson. Unfortunately, part of the lesson would be that the private acts of consenting adults should continue to occupy the energies of federal law enforcement. A better outcome would draw attention to the immorality of the Mann Act itself.

Omar Wasow is pursuing a Ph.D. in African and African American Studies, and an M.A. in Government at Harvard University. He was the co-founder of BlackPlanet.com.

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Also on The Root:

Helena Andrews on white girls n the hood.

Melissa Harris-Lacewell calls out Hillary on Spitzer.

Joel Dreyfuss on King Nando's last dance.

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This article was updated to correct a timing error included in the original version.