DOASKDOTELL BOOK REVIEW of Elizabeth Price Foley: Liberty for All


Author (or Editor):  Elizabeth Price Foley

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

Fiction? No

Publisher:  Yale University Press

Date:  2006

ISBN:  0-300-10983-0

Series Name:

Physical description: hardbound, 287 pgs, hardbound, with endnotes and index occupying 88 pages

Relevance to DOASKDOTELL: fundamental rights, right to be left alone, sodomy laws, victimless crime laws


But that’s irrational!  As a boy, that was my reaction to many of the seemingly arbitrary morality-based laws as I was taught about them.

The author is a law professor at Florida International University, and she has a similar idea, almost echoing Peter McWilliams. But what she wants to establish is that our constitutional tradition actually supports individual autonomy, and protects it through the separation of powers. The Morality of American Law is rooted in a Harm Principle, and differs from British law, where legislative or parliamentary power is plenary and can implement popular notions of morality. The relatively tolerant sexual morality in Britain in recent decades reflects a change in social values, not in governmental structure. Yet, democracy tends over time to encourage more tolerant or accepting and pluralistic culture.

The book is motivated, of course, by the apparent policies of the Bush presidency, and the influence of the religious right and “faith based” communities.

The early part of the book discusses the original meaning, and particularly the of the Ninth Amendment in the Bill of Rights, which the author believes establishes a strong legal basis for notions of individual sovereignty (or legal personal autonomy) and even could be applied to the states as well as the federal government. The usual legal opinion is that the Bill of Rights was not “incorporated” as applying to the states until the post Civil War 14th Amendment. She discusses in detail the mixed history of a number of cases, such as Barron v. Baltimore, Campbell, and Dred Scott. She believes there was practical concern in the first part of the nineteenth century of driving southern states into secession. She gets on to the Harm Principle, related to the 14th Amendment “fundamental rights” of life, liberty and property now protected from encroachment by the states (although various decisions have, however incorrectly, limited incorporation even after the 14th Amendment).

She has individual chapters on Marriage, Sex, Reproduction, Medical Care, and “Food, Drugs and Alcohol.”  She goes through all of this with a detailed analysis according to the Harm Principle, with the material organized somewhat as is my 1998 “Our Fundamental Rights” book, but with a lot more detail. Actually, some of the detail resembles the soliloquous arguments of the last three chapters of my first DADT book. She sees Lawrence v. Texas (2003) as a partial success for the Harm Principle, but it could be cleaner; five of the justices concurred in some part, and O’Connor used equal protection only.  She differentiates between legitimate claims of harm (including the fact that minors are not competent to decide things for themselves) and much less acceptable claims like emotional harm. The tort system should be based legitimate harm, but isn’t always.  She provides quite a bit of detail about STDs, but doesn’t cover the complexity of some public health issues (such as mutation of viruses or drug resistance). She covers the medial issues around non-sexual artificial reproduction, but doesn’t get much into what could happen if people could specify the genes of their kids.  

Of course, we go back to wondering where the real basis for “state police powers” comes from. Back in 1985 or so, in upholding Texas 21.06 (after being overturned in a district court), the Fifth Circuit had held that “upholding morality is an acceptable state goal,” and we all know of the similar sentiments in Bowers v. Hardwick (1986) (challenging the Georgia sodomy law) that would be taken down in Lawrence.

I have my own theory here, often detailed on my websites and books. We typically see “public morality” as rooted in religious teachings, and indeed it is. But the motive behind it seems to be a combination of protection of established political and economic turf (often unjustly gained), while at the same time providing a mandate for personal socialization that forces one personally to address the needs other others, most of all blood family members. Family responsibility, even when not chosen, as for aging parents and siblings, is part of the safety net. Indeed, most of religious “moral teaching” is intended to counter the excessive competitiveness of individualism with a moral compulsion to attend the real needs of others, even to the point of “saving” them. Being able to relate to people out of sense of complementarity is part of this mandatory socialization, which politicians seem to try to construe as a "public morality" component of the law or of state police powers. One could even see the moral ideas behind abstinence except for marriage as a way of coercing individuals into continuing family lineage, thus “paying back” their parents. Vatican moral teachings seem to reflect all of these concerns. But they don’t belong in the morality of the law.   

Blogspot entry for Cato forum on this book is here.


 Related: Peter McWilliams: Nobody's Business


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