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

Elizabeth Price Foley (Author)

Book Description

Publication Date: November 1, 2006

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.

Editorial Reviews

From the Back Cover

"Elizabeth Price Foley's path-breaking account of the Founders' views of 'individual sovereignty' and the limits this entails for both federal and state power is well worth the price of the book. Her powerful advocacy of the American 'morality of law,' as embodied in the Constitution, is a compelling antidote to those who would limit personal liberty by appealing to 'public morality.' A must read for everyone interested in how the Constitution is supposed to protect individual liberties."
-- Randy Barnett, author of Restoring the Lost Constitution and The Structure of Liberty

"Elizabeth Foley has authored a slim and provocative volume, making a persuasive case that much of contemporary constitutional law thinking is mistaken. It's the most engaging book on constitutional law that I've read in quite a while."
-- Glenn Harlan Reynolds, Beauchamp Brogran Distinguished Professor of Law, University of Tennessee

"This book will surprise and unsettle anyone who reads it. It grabs hold of some of the most familiar precedents and principles in constitutional law and shakes them hard, as if in a kaleidoscope. It then invites us all to look at them again, harder and better. It is that rare work of scholarship that really does earn the title, original. It is learned, eccentric, cogent, and provocative, all at once. And it leaves me thinking that Professor Foley may well be right in her radical reinterpretation of constitutional liberty."
-- Tom Gerety, Collegiate Professor, New York University and President Emeritus, Amherst College

About the Author

Elizabeth Price Foley is professor of law, Florida International University College of Law. She lives in Key Largo, FL.

Product Details

• Hardcover: 304 pages
• Publisher: Yale University Press (November 1, 2006)
• Language: English
• ISBN-10: 0300109830
• ISBN-13: 978-0300109832
• Product Dimensions: 9.3 x 6.3 x 1.1 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 3.2 out of 5 stars  See all reviews (5 customer reviews)
• Amazon Best Sellers Rank: #1,434,141 in Books (See Top 100 in Books)

More About the Author

Elizabeth Price Foley is the Institute for Justice Chair in Constitutional Litigation and Professor of Law at Florida International University (FIU) College of Law, a public law school located in Miami, Florida. She also serves as the Executive Director for the Institute for Justice Florida Chapter. The Institute for Justice (IJ) is a non-profit, public interest law firm that represents citizens whose constitutional rights have been violated by the government. For more information about IJ, visit: www.ij.org.

Foley teaches constitutional law, health care law and bioethics, and civil procedure. She writes about constitutional law and the intersection of constitutional law with health care law/bioethics.

Foley is a self-described "recovering liberal" turned classical liberal/libertarian. She is passionate about educating Americans--not just law students--about the Constitution, its original meaning, and the importance of preserving its structure and principles.

Foley lives in Key Largo, FL, with her husband, daughter, and a dog named Thomas Jefferson.

Customer Reviews

Most Helpful Customer Reviews

12 of 13 people found the following review helpful:

5.0 out of 5 stars Compelling Libertarian Thesis, January 14, 2007

By 

WH Karlan (Boston, MA) - See all my reviews

This review is from: Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Hardcover)

Bound to be a future classic-- a sort of modern, practical John Stuart Mill "On Liberty"-esque book. An intriguing historical account of the unique features of the American Constitutional structure that have been unfortunately abandoned, leading to a proliferation of significant and trivial laws that restrict individual liberty and expand government's power. Foley's thesis is that there are "twin foundational principles" of American law that make it unique from all prior forms of government: (1) limited government (in terms of the powers granted by the people to their governors); and (2) residual individual sovereignty. She convincingly shows how these principles indicate a harm principle at work in American law-- not just in theory, but in fact.

Most original is her treatment of number 2 (residual individual sovereignty), which she traces back to the original Law of Nations devised by writers influential with the founding fathers, such as Vattel, Grotius and von Puffendorf. To the founding fathers, sovereignty, as defined by this Law of Nations, was understood in a very specific way, to mean complete liberty or power to do as the sovereign pleased, subject only to the principle of "do no harm" (except in self-defense). In the newly formed United States, the founding fathers parsed out to the governors only a very limited portion of sovereignty (limited powers) and kept the residuum in the hands of the people. When paired with the conception that American government was intended to possess power only to protect the people's life, liberty, and property, Foley shows us how the residual sovereignty remaining in the people's hands is very broad and meaningful indeed. This notion was memorialized in the Ninth Amendment (which has been completely ignored by the judiciary, as if it did not exist).

Unlike writers like Joel Feinberg (who is also highly recommended), Foley
offers a comprehensive definition of legal harm that can be applied to judge the legitimacy of all laws. She then proceeds to do so, tackling with finesse and mind-boggling breadth of knowledge issues like sex, drugs and alcohol, reproduction, marriage abortion, assisted suicide and others.

The writing is clear, crisp and entertaining. Her historical research is very original and tight. This book is a great read for anyone who is interested in a deep theory of the American Constitution. Unlike the previous reviewer (who apparently cannot spell), I would wholeheartedly recommend to anyone, conservative, liberal, libertarian or anywhere in between. Looking forward to reading her future work.

1 of 1 people found the following review helpful:

5.0 out of 5 stars Fascinating and Non-Partisan View of Things, June 21, 2009

By 

SamIAm (Dallas, TX) - See all my reviews

This review is from: Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Hardcover)

I bought this book expecting to find a conservative diatribe against big government. What I found, instead, was a fascinating and wide ranging exploration of some of the most controversial constitutional issues of the day.

In her Preface, Foley explains that she used to work for democrats on the Hill and considered herself a liberal. Then she went to law school and realized how little she knew about the Constitution and how it had been manipulated for political ends and transformed into a completely different kind of government. After spending many years researching the framers writings and political philosophers of the constitutional era, she came to realize that individual liberty was meant to be the dominant idea of the United States. After reading her careful analysis, I have to say that I now agree with her.

One of the most interesting ideas is her notion of "residual individual sovereignty," which is expressed by the Ninth Amendment. She basically asks us to consider what it meant when the founders told us that the "people" were "sovereign". She asks us to consider whether popular sovereignty is merely a collective idea, or if it has an individual dimension as well? She thinks it has an individual dimension and, if one understands the proper limits of governmental power, being a person who has sovereignty is a powerful idea. You're a king, I'm a king. Seriously. It's very empowering. And sovereignty was understood, at the time of the founding, to mean something pretty specific. Sovereigns could do whatever they wanted, so long as it did not harm other sovereigns. So if you and I have "residual individual sovereignty" (what's left over after we gave specific limited powers to government), then we are all free to do as we wish, so long as it doesn't hurt others. The harm principle (for those who are familiar with it) underlies our individual sovereignty and provides the basis for interpreting the Ninth Amendment (which has been considered an "inkblot" under orthodox legal ideas).

Foley is not afraid to attack orthodoxy. So yes, her tone is confident, but no overly so. She has research to back up everything she says (unlike so many other writers in the field). The endnotes for this book are almost 100 pages long, in small type. If you read these endnotes (I have), you cannot doubt that her assertions are worthy of serious consideration, even though they fly in the face of some of the most entrenched legal assumptions. You may not agree with her, but her ideas are plausible, consistent, and original. If the Constitution were interpreted to follow her originalist vision, the U.S. would be a very different, and very much more tolerant and free, place.

I have bought a couple of extra copies of this book since I first read it, to give to some friends who are stuck in pledging allegiance to ideologies that are divisive and unproductive. If you'd like to read a book on constitutional law that is not the tool of someone with a particular ideological agenda, you couldn't find a more interesting, well researched, and fascinating read. It will take you on an intellectual journey that you will not forget. And when you're done, you should pass the book along to a friend.

She kind of reminds me of Glenn Beck, though I know a lot of readers will moan when I say this because they think Beck (even though they probably never listened to him) is some sort of radical conservative. But for those of you who do know Beck, you know that one of his most refreshing traits is that he hates all the bastards (politicians) equally, because they have all betrayed the principles of our government when it's been convenient for them to do so. Foley is of the same ilk. We should all boycott those ideological books in favor of more books like these.

2 of 6 people found the following review helpful:

3.0 out of 5 stars Too Sure Of Itself For Its Flaws, Interesting Though, July 15, 2007

By 

Bronx Book Guy - See all my reviews

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This review is from: Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Hardcover)

Books of this sort are interesting but too doctrinaire and selective to be convincing ... surely to the level of assurance suggested. This is furthered by the author -- again not unique to her -- questionable use of history, often ignoring troubling matters that would make her conclusions harder to reach. Thus, even if you respect her argument of libertarian views based on individual sovereignty (I do), how she gets there and how she applies it leaves something to be desired.

A few examples. As is typical of the genre, at least of those favored by the blurbs on the back of the book, the author argues recent courts have 'invented' things to fit the Constitution into what they feel is necessary for society. Interesting. After all, the author opposes Justice John Marshall's (who was at the founding) rejection of applying the Bill of Rights to the states in 1833 (before the 14th Amendment). One can also cite the Slaughterhouse Cases. That was 1873. And, a myriad others before the New Deal. As some note, pre-New Deal cases quite often upheld regulations. The 'Lochner Court' stereotype, notwithstanding.

Or, in general, all the liberty violations upheld in the past by the courts (no sending contraceptives thru the mail, various sexual practices, prohibtion laws [the fact a few did not doesn't suggest 'original understanding' which she claims is a primary drive of her jurisprudence] etc. One might also note times have changed -- there weren't even any police forces back in 1789. Modern society requires more laws (though citations of spitting on the sidewalk as an issue, is that not a public nuisance, is curious); but in many ways we are more free than we were in the past.

This is so even if general principles, though not how they were often applied, might be interpreted differently. She cites Burke ... but he was a conservative who supported many repressive laws on tradition grounds. Selective use of his statements mislead. Likewise, her balancing of state interest at times is rather brief (esp. latter chapters ... the one on illegal drugs are almost conclusionary; the body of the book is under 200pg) and a bit dubious. For instance, as to motorcycle helmets and public health costs, she notes the state generally doesn't pay. What if it did? [Her later book on life/death issues underline the complexities -- she raises some red flags regarding not protecting at risk people, the book on this one topic longer than this summary of many.]

The book does have benefits, if we admit to such problems, suggesting that off the top claims and a bit more modesty is often useful in such works. The fact a 'living constitution' approach can use a work of this nature is a bit ironic, but so it goes. I'd add a recent book by Daniel Farber on the Ninth Amendment was also pretty brief, providing some interesting arguments, but not enough depth at times. A good companion volume.