Why Originalism Matters (Part VIII)

Police Power and Moral Justice Example:

The power of a state government to restrict, prohibit, or regulate rights is police power. The Constitution does not specifically enumerate any State rights because as Madison says in Federalist 45 they are “infinite”. The Fourteenth Amendment holds that the Bill of Rights in the Constitution applies to the states. Other than that, there are few restrictions on state police power. Typically, a state government can regulate, prohibit, or restrain personal rights to protect the “health and safety” of other citizens. However, state governments have also used police power to regulate “moral justice” as well. One example of this was provided earlier in Champion v. Ames were the Court prohibited the sale of lottery tickets in interstate commerce because gambling was seen as an immoral behavior or a bad vice.

In Mugler v. Kansas, Justice Harlan rejected a Fourteenth Amendment challenge to alcohol manufacturing and sales. He said “It cannot be supposed that states intended, by adopting that amendment (14th), to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community.” In other words, the State had a right to prohibit what it assumed to be “immoral” activity such as prostitution, gambling, alcohol, drugs, pornography, cigarettes, or other types of “bad vices”. Chris Tiederman developed the Libertarian point of view of liberty, freedom, and rights by saying “No law can make a vice a crime, unless it becomes by its consequence a trespass upon the rights of the public.” The reason for this is simple, people are not violating the rights of others by practicing their “immoral” vices. So according to Tiederman police power should be used to protect “safety, health, and public morals” of others. In other words, private immoral behavior or vices that do not affect the rights of other citizens should be protected from laws.

There may be some truth to this theory. For instance, in Lawrence v. Texas (2003 – overturned Bowers v. Hardwick, 1986), the Court overturned a Texas statute that made private homosexual sodomy illegal. For sure, this law has some issues. First, how do you enforce a law if people are having sodomy in private? Second, this act is not violating the rights of other citizens. Therefore, it is reasonable for the Court to overturn this moral justice law as being discriminatory as defined by the equal protection clause of the Fourteenth Amendment. But the Court was wrong by elevating sodomy as a Fundamental Right. Today, many so called “immoral” vices are gaining legalization traction. Marijuana is a good example as is gambling. Prostitution is legal in Nevada. Remember, alcohol was illegal and prohibited for many years before gaining a “moral” status. I can certainly agree to a large extent what Tiederman proposes is a good way for the Court to view so called immoral behavior in private.

However, I believe the issue is a little more complicated than what Tiederman proposes. What about the spread of sexually transmitted diseases to citizens that came from prostitutes? A husband goes to Vegas and sleeps with a prostitute and then transmits a disease to his wife when he gets home. That clearly violates the rights of the wife. Is all sex in private consensual and not a crime? Of course not: rape and incest are examples of right violating crimes. Doing drugs in private may hurt others if people drive under the influence (although the same can be said of alcohol). Should child pornography be allowed in private if it could hurt others if people act on their vice? What people do behind closed doors is their own business and for the most part the Court should not interfere. Many moral justice laws may have good intentions, but they can go overboard if they violate the rights of law abiding citizens who are not violating the rights of other citizens. For example, locking people up or fining them for private sodomy or masturbation is a bit overboard. This behavior may not be acceptable to some, but these laws do not violate their rights. With that being said, I cannot say with 100% certainty that what goes on in private will not necessarily or ultimately affect other citizens in a negative way. So some regulation may be required by state police power over private moral issues. For instance, possession of contraband does not hurt anyone or violate a person’s rights, but the use of contraband (like drugs or driving under the influence) can be regulated because it could violate another person’s rights.

Solutions:

Until the States invokes Article V and convene an Amendments convention then nothing will change. At an Amendments convention some proposals that may be useful include: repealing the Sixteenth and Seventeenth Amendments; placing Term Limits on Congress; bringing back the original meaning of the Commerce and Necessary and Proper Clauses; Limiting the Spending Clause to non-coercive methods; Congress cannot trump common State Laws that are on the books in half the states or preside over half the U.S. population; Supreme Court justices are not allowed to interpret the Constitution, they must use the original meaning at the Founding; allow the President a line item veto over budget bills to rein in spending; place the rights retained by the people as outlined in the 1866 Civil Rights Act and Bushrod Washington in Corfield v. Coryell as Fundamental, and reinstate the Privileges and Immunities clause.