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

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There is a growing tension in American law between individual liberty and public morality. Exit polling from the 2004 presidential election revealed that "moral values" is the most important issue among voters, surpassing the economy, war in Iraq, and terrorism. Little wonder, then, that Americans increasingly feel the need to codify majoritarian morality into law in a desperate attempt to stem the perceived moral decline. We must restrain the liberty of morally deficient individuals, the argument goes, to prevent their pestilence from spreading throughout society. But are such morality-based laws legitimate exercises of governmental power? In my new book published by Yale University Press titled, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality, I answer this question "no."

The American judiciary has been more than happy to bless the constitutionality of morality-based legislation. According to orthodox legal theory, judges should not read too much into constitutional language such as "liberty," "privileges or immunities," or "[other] rights . . . retained by the people" because doing so will allow undemocratic, appointed-for-life judges to sit as a super-legislature and frustrate the will of We the People. The message from the judiciary is that citizens unhappy with morality-based laws should complain to their elected representatives and lobby for change.

The problem with this logic, of course, is that it presupposes far too much about the proper scope of legislative power and far too little about the proper scope of judicial power. It assumes that legislative power is plenary in the absence of some specifically enumerated limitation to the contrary, rather than assuming the opposite: that citizens retain all power (sovereignty) unless they have expressly and specifically ceded their power to the government. And it assumes that judges are somehow upsetting the delicate balance of powers by demanding evidence of the necessity of legislative restrictions on individual liberty.

Presuming plenary legislative power in the absence of a specific limitation to the contrary literally turns the American constitutional structure on its head, dishonoring the twin foundational principles of limited government and residual individual sovereignty – principles that, taken together, reveal a morality of American law itself, an analytical framework for identifying the "right and wrong" uses of governmental power. Restoring judicial respect for these twin foundational principles – for the morality of American law – would reveal that laws based solely on public morality are illegitimate exercises of power. And it would also allow the judiciary to jettison its self-induced guilt trip about its critical role in enforcing a vision of law that is respectful of individual autonomy – and hence, equality.

Expanding legislative power – and the concomitant judicial reticence to check it – have created the very Leviathan that the founding generation spilled its blood to resist. The net result is that America has become a nation of too many laws with precious few pockets of individual liberty.

Extant legislative interferences with liberty range from the picayune – e.g., prohibiting playing cards on Sunday or displaying deformed animals – to the substantial. A shocking number of laws, unabashedly motivated by majoritarian moral preferences, restrict such basic personal decisions as: to whom one may marry; whether one may view sexually explicit materials; whether one may avoid or terminate a pregnancy; what types of medical care and providers one may access; in what manner and with whom one may have sex; and whether, how, or to what extent one may become intoxicated.

The book presents not only a theory of law, consistent with original meaning, that is pro-liberty, but it also (unlike many theory books) shows "what the world would look like" if this theory were honored in practice. I therefore spend a good deal of time addressing the most contentious constitutional liberty issues of the day, devoting specific chapters to an exploration of the constitutionality of laws relating to marriage, sex, reproduction, medical choice, and food, drugs and alcohol.

The book concludes with this passage:

"America started with a concept of limited government, designed to protect and improve the life, liberty and property of citizens, and has ended with a concept of unlimited government, capable of restricting our life, liberty and property in the name of protecting us from ourselves. America started with a concept of residual individual sovereignty, designed to respect the autonomy and equality of citizens, and has ended with a concept of limited liberty, presumptively unavailable and parsed out reluctantly by an all-powerful sovereign. America started with a concept of federalism, designed to better protect individual liberty, and has ended with a concept of nationalism, exercised vigorously to stifle controversial liberties recognized by the state. We have done all of this, experienced these foundational changes, without the benefit of a constitutional amendment. We have allowed mere legislative majorities, often motivated by morality, passion, and prejudice, to take away our most precious liberties. We should be ashamed."

I hope that all libertarians will take a look at this book – and perhaps more importantly, share it with a non-libertarian friend.

October 21, 2006

Elizabeth Price Foley [send him mail] is Professor of Law, Florida International University (FIU) College of Law, where she teaches constitutional law.