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Liberty for All

Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality

Elizabeth Price Foley
Copyright Date: 2006
Published by: Yale University Press
Pages: 304
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  • Book Info
    Liberty for All
    Book Description:

    In the opening chapter of this book, Elizabeth Price Foley writes, "The slow, steady, and silent subversion of the Constitution has been a revolution that Americans appear to have slept through, unaware that the blessings of liberty bestowed upon them by the founding generation were being eroded." She proceeds to explain how, by abandoning the founding principles of limited government and individual liberty, we have become entangled in a labyrinth of laws that regulate virtually every aspect of behavior and limit what we can say, read, see, consume, and do. Foley contends that the United States has become a nation of too many laws where citizens retain precious few pockets of individual liberty.With a close analysis of urgent constitutional questions-abortion, physician-assisted suicide, medical marijuana, gay marriage, cloning, and U.S. drug policy-Foley shows how current constitutional interpretation has gone astray. Without the bias of any particular political agenda, she argues convincingly that we need to return to original conceptions of the Constitution and restore personal freedoms that have gradually diminished over time.

    eISBN: 978-0-300-13499-5
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xiv)
  4. Acknowledgments
    (pp. xv-xvi)
  5. Chapter 1 Introduction: A Nation of Laws, Not Men
    (pp. 1-7)

    A middle-aged, married father of two is diagnosed with testicular cancer. The cancer spreads through his body, inflicting intense pain. He undergoes radiation and chemotherapy, which causes severe nausea and appetite loss. Numerous prescriptions prove ineffective or produce intolerable side effects. As a last-ditch effort, the man smokes marijuana and finds that it relieves his pain and stimulates his appetite. He begins cultivating marijuana at his home for medical use. Federal officers seize the marijuana and arrest him for drug possession. Although the state where the man lives allows the use of marijuana for medical purposes, the federal government considers...

  6. Chapter 2 The Morality of American Law
    (pp. 8-40)

    There is a morality underlying American law itself that is designed to minimize conflicts between individual privacy and public morality. If we want to strike a balance between these competing forces, we must disinter the structure of this morality. This chapter will examine the Framers’ understanding of the legitimate purpose of government which, in turn, will illuminate their understanding of the legitimate scope of governmental power. Once the proper boundaries of government power are identified, we can then discern what lies beyond those boundaries—that is, the scope of individual liberty. If we can grasp the original meaning of these...

  7. Chapter 3 Being Sovereign: The Harm Principle
    (pp. 41-64)

    If there is an underlying morality of American law that defines the limits of governmental power (protecting LLP) and concomitantly values residual individual sovereignty, the question remains: How do we apply this morality, pragmatically? How can recognizing and understanding this morality of American law help legislators and judges determine whether ordinary legislation is a legitimate exercise of governmental power? How can we take this macro-theory and make it work on a micro level? If one of the foundational principles of American law—at both the state and federal level—is residual individual sovereignty, what does this mean? If the people...

  8. Chapter 4 Marriage
    (pp. 65-101)

    There is perhaps no clearer illustration of the tension between individual privacy and public morality than laws relating to marriage. There are numerous laws that limit when, how, and to whom one may be married. This chapter will demonstrate that many marriage laws are based solely on public morality and therefore are illegitimate restrictions on individual liberty. Yet some marriage laws may be consistent with the morality of American law because they are reasonably calculated to prevent harm to others. Before we can dissect the legitimate from illegitimate marriage laws, however, it is useful to explore what exactly “marriage” is....

  9. Chapter 5 Sex
    (pp. 102-130)

    An adult American’s right to participate in consensual sex is contingent upon a laundry list of restrictions that hinge upon whether the individual is single or married, heterosexual or homosexual, whether the sex is obtained free or purchased, and the type of sex in which the individual wishes to engage. This jumble of factors makes no principled constitutional sense and, as applied to competent adults, is inconsistent with the morality of American law.

    In 1965 the Supreme Court announced, inGriswold v. Connecticut,the existence of a constitutional “right to privacy,” which encompassed the right of married persons to use...

  10. Chapter 6 Reproduction
    (pp. 131-150)

    The Supreme Court’s contraceptive and abortion cases have made it clear that Americans have a right not to reproduce. This negative right to avoid reproduction has been extended to the married and unmarried alike and even to minors.¹

    As an initial matter, it is important to understand the close, often indistinguishable, relationship between contraception and abortion. Contraception, as the name suggests, prevents conception by keeping sperm and egg apart, often through the imposition of a physical barrier. Diaphragms, condoms, and the withdrawal method, for example, all operate on this simple premise. But not all contraceptive methods prevent sperm and egg...

  11. Chapter 7 Medical Care
    (pp. 151-177)

    A fundamental facet of residual individual sovereignty is sovereignty over one’s own body, so long as exercising such sovereignty does not harm or reasonably threaten harm to the LLP of others. This bodily sovereignty—more commonly referred to as bodily autonomy—has been recognized by the common law for centuries, taking root in cases that treated the imposition of unwanted medical treatment as criminal battery or homicide.¹ Eventually a distinct negligence tort emerged, defined as the provision of medical care without the patient’s fully informed consent.

    Today, most instances of non-consensual medical care are of the tort variety rather than...

  12. Chapter 8 Food, Drugs, and Alcohol
    (pp. 178-198)

    American law has become increasingly intolerant of individual sovereignty to make choices regarding which substances to consume. This intolerance would come as a surprise to the Framers, who lived in an era in which governmental restrictions on ingested substances were rare indeed. The modern governmental power to prohibit ingestion of certain substances is essentially unlimited, and most Americans simply take it for granted. But as this chapter will show, the vast bulk of this power is exercised illegitimately, in a way that is antithetical to the limited purpose of government and the principle of residual individual sovereignty. The monolithic “war...

  13. Notes
    (pp. 199-280)
  14. Index
    (pp. 281-287)