Customer Reviews

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

5 star:		(2)
4 star:		(0)
3 star:		(1)
2 star:		(1)
1 star:		(1)

 

 

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.

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.

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.

Kind of interesting, but the author lapses into standard assumptions and bigotry, even immediately after talking about the "tyranny of the majority." Her hatred of fat people, for example, leaves one wondering if the rest of her arguments are so unexamined. She skirts over the obvious instances (religion, primarily) where the majority can be dangerous, but--even though this is directly related to her main thesis--ignores the impact of assumption and bigotry. Thinking that all fat people are lazy (she uses this lie at least twice), without any actual scientific basis for this assumption, does far more damage to everyone's freedom than the obvious act of trying to convert someone to your religion. It's the sneaky hatreds that are the worse, but she can't even identify them in herself. Similarly, she also never discusses the impact of governmental inertia and incompetence as a force of tyranny. Yes, she's too sure of herself, and stuck in theory, not reality.

Where are the constitutional values for liberty>? I do not recommend this book.