Glenn Reynolds predicts that the Supreme Court, having accepted cert., will strike down the Texas sodomy law. [Sam Heldman (Ignatz) makes the same prediction, though cautiously.] In that connection, Reynolds mentions a fascinating (to a non-expert) law review article he wrote with David Kopel.
The article considers two polar views about the scope and limits of the “police power.” Reynolds and Kopel prefer what they say is both the older and the more recent view, which would limit the police power to banning actions likely to cause direct harm to others, on the maxim “Sic utere tuo ut alienum non laedas” (Use what is yours so as not to harm what is others’). They criticize the movement, which they trace to the turn of the last century, extending the power to virtually anything not explicitly reserved to individuals by the Federal or state constitutions, on the maxim “Salus populi est suprema lex” (The public health [safety, good, welfare] is the supreme law).
Reynolds and Kopel make an interesting choice of contemporary bad guy: Robert Bork, who claimed that state-level majorities, acting through their legislatures, could ban anything they found offensive whether it did any actual harm or not.
One implication of their preferred view which they don’t make explicit is that the drug laws would have to go. That doesn’t bother them, but it does me. Thinking of the principles at stake in terms of the sodomy cases, and with the specter of Bork looming in the background, makes it tempting to opt for the more restrictive view, but in this case I think I’ll resist the temptation.