The Institute for Justice has filed a provocative friend-of-the-court brief in Lawrence v. Texas, the challenge to that state's ban on homosexual activity that the U.S. Supreme Court is scheduled to hear in March. The brief argues that before considering whether the law violates anyone's constitutional rights, the Court should decide whether the Texas legislature had any business passing it in the first place. "If the law does not address an activity that causes harm or impacts the public," says I.J., "it is beyond the power of the government to regulate, regardless of whether the specific liberty interest is deemed fundamental. Texas' statute attempts to regulate purely private morality and thus exceeds the police power."
This argument, which builds on the work of Boston University law professor Randy Barnett (one of the attorneys whose name appears on the brief), is not quite as sweeping or radical as it sounds. Given U.S. history and the Court's precedents, Barnett et al. have to allow that it's OK for states to regulate activities (such as the distribution of "obscene" materials) that impinge on "public morality," along with private behavior (such as pot smoking) that legislators believe to be harmful. I.J.'s case for putting private sex acts between consenting adults beyond the government's reach hinges on the premise that such behavior is neither harmful nor at odds with "public morality."
Supporters of the law presumably will disagree. It is especially hard to see how, once paternalism is allowed as a justification for regulating private activity such as drug use, it cannot also serve as a justification for regulating private sexual activity, which could be said to pose the risk of moral and emotional harm, not to mention disease transmission. The brief also suggests that choices such as what we eat, how late we stay up, and what we do with our weekends are beyond the police power. But it seems that the minutest regulation of private behavior could be justified by the goal of preventing self-harm, even leaving aside the argument that risky habits impinge on the public treasury.
Still, Barnett and the I.J. lawyers are doing an important service by pointing out that specifically enumerated rights are not the only, or most important, guarantee of liberty under our constitutional system. Much of the freedom we take for granted cannot plausibly be linked to an item in the Bill of Rights (not counting the Ninth Amendment). Rather, it depends upon implicit limits on state power, along with shared assumptions about the proper function of government. I'm just not sure Americans share those assumptions anymore, if they ever did.