Several people have written to say that my characterization of conservatives’ view of the judiciary begs the question, because conservatives believe that certain things that they want to ban—such as abortion—do harm others.
First I’ll say, that wasn’t really my point. My point was that conservatives who speak of judicial “activism” are trying a switcheroo on us. They’re saying that if one person wishes to govern another, no third person may be allowed to object, and that if a third person does object, this is somehow oppression of the person who claims to have a fundamental right to govern others.
But of course it’s true that, as one person said by email, when it comes to abortion, some people believe that this isn’t harmless activity, and therefore that it’s proper for government to interfere. Sure. And it’s a perfectly valid argument that the state has a legitimate role in stopping a person from obtaining an abortion, on the grounds that abortion violates the rights of a person. (I don’t think that’s true, but it would be a valid argument.) But that’s different than the situation in, say, Lawrence v. Texas, the case that inspired the post in question. There, the private, adult, consensual sexual activity cannot be said to harm any third person in any but the most attenuated way.
Will Baude provides the perfect example of such attenuation when he speaks of “psychic harms” of private conduct. No, psychic harm of private conduct is not a legitimate foundation for government regulation, if for no other reason (and there are other reasons) because there is simply no limit to that claim. It is pretty much the perfect definition of arbitrary government. And that’s one reason I don’t believe in being charitable to the “moralizers,” as he calls them, who think that they do have the right to govern others simply because they find those others’ activities distasteful. That view is so unreasonable, it deserves no respect.
And no, we do not take a person’s freedom away when we tell him “No, you have no right to deprive another person of his liberty.” It doesn’t take away from the burglar’s freedom when we punish him for burglary; it doesn’t take away from the wife-beater’s freedom when we tell him he may not slap his wife around; and it does not take away from Owen Courreges’ freedom when we tell him that he may not send armed government agents into the private bedrooms of other people in order to police their private, consensual, sexual conduct.
