Lund & McGinnis on Lawrence v. Texas: On his Legal Theory Blog, Larry Solum has an interesting post today on Nelson Lund and John McGinnis’s recent paper on Lawrence v. Texas in which they take issue with my analysis of the case in Justice Kennedy’s Libertarian Revolution. While I have a very high regard for both these scholars, I agree with Larry’s response to their comments concerning the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.

I do not defend Lawrence on the basis of the original meaning of either the Ninth Amendment or the original meaning of the Due Process Clause of the Fourteenth, but instead on the Privileges or Immunities Clause that restricts state power to infringe the natural rights (or “immunities”) of its citizens and the additional rights (or “privileges”) created by the Bill of Rights.

Reasonable scholars may disagree on the original meaning of this clause, but this question cannot be addressed without confronting and engaging seriously with the evidence of original meaning, such as what I present in Restoring the Lost Constitution, and in my recent article, The Proper Scope of the Police Power of States, in the Notre Dame Law Review, vol. 79, pp. 429-495. (Unfortunately, I have not yet uploaded the final version of this article, which differs markedly from the version on SSRN.) In it, I argue that the proper scope of the police power is the protection of the rights of citizens from infringement by others, either after the fact by means of criminal and tort law, or before the fact in the form of necessary regulation of liberty. I should add that this power is in addition to the power of the state to control public property in its capacity of owner, subject of course to constitutional constraints.

In addition, the question of whether someone has or has not violated the rights of others has traditionally been handled by the private law categories of property, contracts and torts. Rather than authorize an independent philosophical inquiry by federal judges–even by “a Supreme Court staffed with nine Randy Barnetts”–I would have them generally defer to state law on this issue, as they now do in diversity cases. That this may sometimes be a difficult line to draw, especially where legislation codifies private law rights, does not eliminate the pressing need to draw it, lest the police power become unlimited and tyrannical, subject only to majoritarian processes.

Every interpretation of the Constitution that takes seriously the limits of government power at the state and national level must make similar distinctions. Two examples: the proper interpretation of the Commerce Clause requires the sometimes vexatious distinction between interstate and intrastate commerce; the protection of the freedom of speech must distinguish between rightful speech and fraud. In a system of federalism, which both Lund and McGinnis strongly support, difficult lines must be drawn. The same is true with assessments of the proper scope of state power.

Much state legislation restricting liberty cannot plausibly be characterized as the protection of the rights of others, and by this criteria, the “antisodomy” statute in Lawrence is an easy case.

One final point to preempt some email responses: I am not asserting the need to distinguish activities that “harm others” from those that do not–a distinction employed by Justice Kennedy in Lawrence, but not be me. In my view, we are entitled to harm others in a variety of ways. For example, when I open a restaurant across the street from yours and attract all your customers, I harm you, but am acting within my rights. On the other hand, If I were to blow up your restaurant inflicting the exact same loss of trade, I am not just harming you, I am harming you by violating your rights. Preserving the limits on government power requires that this distinction rightful and wrongful, rather than harmful and nonharmful, conduct be maintained. And this is the topic of most of the first year of law school in the subjects of property, contracts, and torts.