Dissolving the Inkblot: Privacy as Property Right

Foreword: I wrote this article when I worked for the Cato Institute in the early 1990s. I post it here because I think it is relevant to the recent Supreme Court decision on abortion in Dobbs v Jackson and other landmark cases, including those concerning contraception and gay rights. I could write a critique of my own thesis today, but I still think it is worth sharing in light of the raging controversy regarding the constitutional status of privacy. Where I’ve used the word liberal, please imagine I wrote progressive. I prefer to reserve the word liberal for those — in contrast to progressives and conservatives — who embrace all the implications of self-ownership.

No question in jurisprudence is as muddled as that of privacy. Conservatives refuse to recognize a general legal right to privacy. Big‐​government liberals misconstrue the concept and apply it arbitrarily and opportunistically. They would protect a woman’s decision to abort a fetus but not two business competitors who wished to discuss their pricing strategies.

The dominant liberal and conservative approaches to privacy are unsatisfactory because they are essentially unprincipled. Liberals, such as Laurence Tribe, envision a right of privacy radiating from express provisions of the Constitution, but that right is so narrow that it is self‐​subverting. Conservatives, such as Robert Bork, reject that vision of a right to privacy because they believe that the method used to find it will allow judges to invent rights. Conservatives seem to assume that there is no alternative vision. But there is an alternative vision, one that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.

The Liberal‐​Conservative Debate

The Szasz Centennary

 

Today is the 100th anniversary of the birth of Thomas S. Szasz (1920-2012), the most unappreciated libertarian in modern times. Beginning with his book The Myth of Mental Illness in 1961 and proceeding through dozens of books and hundreds of articles, Szasz, a Hungary-born physician and psychiatrist, spent more than half a century analyzing and debunking the myriad violations of individual liberty committed in the name of health, public health, and mental health. He dubbed the union of government and medicine The Therapeutic State.

In this cause, Szasz, who was also a historian and philosopher, not only documented the many ways in which the so-called mentally ill have been persecuted, imprisoned (involuntarily hospitalized), and tortured (drugged, lobotomized, electroshocked, etc.), he also demolished the establishment's case for the oppression and so-called "treatment" of recreational drug consumers, sellers, and manufacturers; homosexuals; would-be suicides; and other officially disapproved persons. No one was better at exposing the horror of the "war on drugs" -- it's a war on people not drugs, of course -- than Szasz. And keep in mind that when he defended the liberty of gays and lesbians, psychiatry still listed homosexuality as a mental illness. (Organized psychiatry voted [sic] it off the list in the 1970s.)

Most relevant to the world today, Szasz insisted on the traditional liberal distinction between personal health and public health, specifically, between conditions that may be harmful only to oneself and conditions that may be harmful to others, such as through a serious, contagious disease. He objected to the illiberal blurring of that line, which has justified interventions against people who have not harmed others and could not do so by, say, breathing on them. No one, Szasz wrote, has the right to declare someone else a patient -- whether sick or not -- against his will.

Many libertarians have ignored Szasz, who was my friend and mentor, because they have regarded psychiatry as beyond their expertise. But they missed the point. Szasz insisted that  libertarian principles pertain even to people who are stigmatized by the medical establishment, which has long been deputized by the state. Until someone threatens to harm or actually harms another person, the state should leave him alone.

Pick up any book by Szasz, including his collections of aphorisms, and you'll profit immensely. He was a wonderful writer and a fascinating thinker. You can find a list of his writings here. Lots more information is available at the Thomas S. Szasz Cybercenter for Liberty and Responsibility. See my post "Szasz in One Lesson" here. Other posts that I've written over the years are here, here, and here. Also see Jacob Sullum's interview here and Jim Bovard's appreciation here.

And the biggest treat of all is this video interview I did with Tom in 2005.

Ben Carson Inserts Foot in Mouth

Ben Carson, a conservative hopeful for president, made headlines last week by proclaiming that being gay or lesbian is "absolutely" a choice. His evidence? "A lot of people who go into prison, go into prison straight and when they come out they're gay," Carson said on CNN. "So, did something happen while they were in there? Ask yourself that question."

QED, apparently.

Screw the Vote

So the people get to vote on who may marry? And this pleases conservatives? I thought they disliked mobocracy.

Good for New York!

I’ll say it again. Good for New York!

Crimes Governments Commit

From the BBC:

A judge in Malawi has sentenced a gay couple to 14 years in prison with hard labour after they were convicted of gross indecency and unnatural acts.

The judge said he wanted to protect the public "from people like you".

Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, have been in jail since they were arrested in December after holding an engagement ceremony....

"I will give you a scaring sentence so that the public be protected from people like you, so that we are not tempted to emulate this horrendous example," said Judge Nyakwawa Usiwa-Usiwa in the commercial capital, Blantyre.

CPAC Highlights

Here are my favorite moments from the big conservative CPAC meeting in D.C.:

• Dick Cheney. Need more be said?
• Scott Brown introducing Mitt Romney, respectively, supporter and mover of state-run health insurance in Massachusetts.
• And Ryan Sorba of California Young Americans for Freedom (sic), for his anti-gay tirade, in which he said:

I'd like to condemn CPAC for bringing GOPride [sic] to this event. Civil rights are grounded in natural rights. Natural rights are grounded in human nature. Human nature is a rational substance in relationship. The intelligible end of the reproductive act is reproduction. Do you understand that?

Actually, no I don't. Let's go to the videotape.

I'm happy to report that Sorba was roundly booed.