Law Professor Glenn Reynolds ( Instapundit) tackles the issue of the constitutionality of state sodomy laws today in his Fox News Column. He quotes Supreme Court Justice Joseph Story from the 19th century treatise Commentaries on the Constitution and concludes:

"... where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others."

The professor also quotes from a Kentucky case that struck down sodomy laws using as an analogy an older case that said the state can't regulate a person's consumption of alchohol:

"The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver."

"... legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior."

A Georgia court, in striking down a law prohibiting consensual heterosexual sodomy, stated:

"Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bound of the police power."

Based on these and some other cases mentioned by Prof. Reynolds, he posits that the easiest (or most palatable) way for the Supreme Court to reason its way to striking down the sodomy law currently at issue before the Court is not to carve out a new right of privacy, but to rely on the time-tested and well-accepted theory that "limited government power is an American tradition."

The Professor makes a good argument. The Constitution is a living and breathing document that has served us well for over 200 years. Why complicate things by stretching it too far when a ready answer is so close to its core?

Does anyone see a downside to the Professor's argument? Our motto over here at TalkLeft has always been, "Let's not treat the Constitution as a rough draft" --meaning let's not amend it, let's find ways to allow it stretch within its existing parameters. So we think his argument is well-taken.