Government: Stay Out of Our Homes and Lives
By Bob Freedman
Are there limits to what legislatures can justify under the state’s police power? A case pending before the U.S. Supreme Court offers a provocative opportunity to answer this question and establish an important principle of constitutionally limited government. The case is Lawrence v. Texas, and IJ filed a friend of the court brief to argue that “legislative will” alone does not automatically justify a law.
In Lawrence, the police, while investigating an alleged weapons charge, broke into John Lawrence’s home and found him having sexual relations with another man. Homosexual activity in Texas is against the law. Although no guns were found, both men were arrested and sentenced. While other groups view this case almost exclusively in terms of being for or against gay rights, our brief addresses a much more fundamental issue: does the State have the authority to criminalize such private, consensual, non-harmful conduct regardless of one’s personal moral views?
The State of Texas justified its law by arguing that criminalizing homosexual conduct promoted “public morality.” And then the State argued that public morality is “a fluid concept,” amounting to whatever the legislature declares it to be. Indeed, under such a rationale, the State needn’t even prove a connection between the proscribed conduct and the purported moral purpose. However, our Founders deliberately created a constitutional structure that stops legislatures from wielding such absolute power. Plainly stated, that structure is one of enumerated powers and limited government, with the courts making sure legislatures stay within their limits.
We reminded the Supreme Court of the Founders’ skepticism regarding broad deference to legislatures. Thomas Jefferson wrote shortly after the Revolution that “an elective despotism was not the government we fought for.” The other Founders agreed and set strict limits on government power in our Constitution. The Founders were not alone in trying to protect liberty by limiting government.
A belief that limiting legislative power is the best way to protect liberty is central to the traditions of Western humanist thought. Nearly 500 years ago, Erasmus wrote that “mere numbers in approval do not make for the justness of a measure.” Locke, Tocqueville and Mill all urged limitations on legislative power. Madison, understanding that the majority could disregard the rights of the minority, wrote, “Complaints are everywhere heard . . . that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” To protect against an “overbearing majority” we limit government power.
We argued in our brief that the best way to protect our liberty is to ensure that government acts within its limits. The authority the State has to criminalize or regulate conduct is called the police power. We traced the history of the understanding of the police power from the Founders to the present day showing its use is only justified to prevent harm. In this case, no harm to anyone was even claimed, much less shown.
Because of the controversy surrounding the homosexual activity in Lawrence, it will be all too easy for the court and the public to lose sight of the vital principle of limited government at the heart of this case. Texas argues that its legislature doesn’t even have to justify the law and that its police power authority need have no basis in preventing harm. The legal standard it asserts is the same legal test asserted against our economic liberty cases: “we can do this because we want to.”
When such unbridled authority is wielded, all our liberties suffer. That’s why IJ weighed in, and that is why the stakes in this case are so high.
Bob Freedman is a staff attorney at the Institute.