On Friday, Ramesh Ponnuru criticized the Institute for Justice amicus brief, which argues that Texas’s prohibition of same-sex sexual relations goes beyond the legitimate power of government. In his eagerness to avoid judicial activism, Ponnuru is willing to sacrifice much more fundamental values on which our country was founded, specifically individual liberty and limited government power.
IJ wants Texas’s law struck down even though it is not forbidden by any explicit provision of the Constitution, exclaims Ponnuru in italics. Horrors! Apparently, he missed the part of our brief where we show, at length and with many quotes, that our Founders also did not believe that personal liberty was limited to the express rights named in the Constitution. Instead, they, like many other political theorists that we cite in our brief, believed that the only just government was one with sharp limits on government power and a broad scope of personal autonomy.
The idea of limits on government power is not some sort of radical scheme to abandon our Constitution. It is in fact a major political principle endorsed by Jefferson, Madison, and Hamilton, written into both the Declaration of Independence and the Constitution. The Founders recognized that majorities are capricious things, far too unreliable to wield unrestricted lawmaking powers. They created that system of checks and balances that we all learned about in high school. The Constitution and the federal courts were to serve as the bulwark of liberty, holding back the potential tyranny of the majority.
Because the federal courts are leery about declaiming rights not explicitly mentioned in the Constitution, they have essentially read away the Founders’ statement (in the Ninth Amendment) that citizens have rights not listed in the Constitution. The IJ brief presents an alternative way of looking at the problem — not as a question of what rights are protected but as a question of whether government has the power to regulate. This approach avoids the potential that is at the heart of dislike for judicial activism — the fear that courts will create new “rights” that are actually positive entitlements, like a “right” to welfare, and then force fellow citizens and the government to provide it. Our approach can only limit government action, not create more of it.
Government has the power to regulate in order to prevent harm. That is the prime justification for invoking the police power and, in Western political theory, the reason we allow government to intervene in our lives. Whenever the Supreme Court considers a challenge to a law, it first discusses the governmental purpose. According to Texas, the only purpose of its law is to express moral condemnation of same-sex sexual activity. Prevention of harm is a governmental purpose; expressing a private viewpoint is not.
IJ litigates to reduce government barriers to entrepreneurship, government seizures of private property, government interference with speech, and public-school monopolies. In each of these areas, as in our amicus brief, we say the same thing: People should be able to lead their lives as free and responsible members of society without unwarranted government intervention. If there is no harm to others, let people start businesses, hold on to their property, speak about what they want, send their children to private religious schools, and have private relationships with other consenting adults.
The principle of limited government power is part of the Western philosophical tradition and it underlies our Constitution and political structure. If we allow legislative will to govern the course of law, unrestrained by the courts, we will lose the freedom that is the hallmark of our country.
— Dana Berliner is a senior attorney with the Washington, D.C.-based Institute for Justice. The Lawrence brief can be read here.