The Court Goes Full Circle: Reading J.S. Mill into the Constitution
(As a sidenote, the U.S. national government does not have police powers -- it is a government of delegated power. The states basically carved out a section of their police powers and delegated those powers to the national government.)
In his dissent in the case of Lochner v. New York (1905), Justice Holmes famously mocked attempts to read the Millian "harm principle" (via Herbert Spencer) into the Constitution. He wrote:
"The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not."
Well, J.S. Mill gets the last laugh on Justice Holmes. Almost a century later, a majority of the Supreme Court endorsed precisely the principle that Holmes mocked in his opinion:
"The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects."
The last sentence there is just a restatement of the "well-known shibboleth" that Holmes decries in his dissent.
The irony, of course, is that Lochner v. New York remains one of the most vilified cases of the 20th Century. It was tought definitively rejected, at least as applied to ordinary socio-economic legislation, by the late 1930s. A variant of the doctrine, however, climbed back into the Court's jurisprudence in the "privacy" decisions of Griswold and Roe v. Wade. It now seems to have come full circle, with the Supreme Court once again endorsing the Millian presumption as a matter of constitutional law.
I probably wouldn't mind it so much if I thought it would be applied broadly, to attempts by states to regulate all types of relationships. (I remember William F. Buckley once quipping the question whether liberty also protected "capitalistic acts between consenting adults.") But I have a feeling that it will be used selectively by the courts to strike down laws with which the judge personally disagrees, rather than being applied in a principled fashion.