STATE CONSTITUTIONS AND ABORTION: Jacob T. Levy says that Slate is full of it.

One reason, I think, why state court decisions on abortion rights (except perhaps for the funding decisions, which are less common) — and, for that matter, state decisions striking down sodomy laws — have generated less flak than federal decisions is that they’re cast in more negative terms. Rather than announcing, with Reihnardtian glee, “look at this cool new right I’ve found!” they instead invoke long-standing limitations on government power.

When courts brag about creating new rights, they are, in a very real sense, bragging about excercising a new government power, though one lodged in the judiciary. But when they strike down laws based on general limitations on the legitimate exercise of government power, they’re not creating a new government power, but rather respecting limitations on government power.

If you look at decisions which might have been controversial but weren’t — for example, Tennessee’s decision striking down the state’s sodomy law — they seem generally to be written in a very originalist, Borkian mode: “The government was never held to have the power to interfere in purely private behavior that didn’t hurt anyone else; this is purely private behavior that doesn’t hurt anyone else; therefore the government may not interfere.” That’s what Tennessee’s court said in Campbell v. Sundquist, that’s what the Kentucky Supreme Court said in Commonwealth v. Wasson, that’s what the Georgia Supreme Court said in State v. Powell, and in none of those cases was there much of an uproar. (You can read more about these here).

There may be a lesson there for the U.S. Supreme Court.