Sunday, January 29, 2006

Sandefur on Bork, Bowers v. Hardwick's Dissent and Self-Ownership:

I was rereading part of Sandefur's classic article from the Harvard Journal of Law and Public Policy and noticed how footnote 203 posits a sentiment similar to that of my recent post on Justices Blackmun and Stevens, pro-sodomite Lockeans:

[FN203]. Douglas B. Rasmussen, Why Individual Rights?, in INDIVIDUAL RIGHTS RECONSIDERED: ARE THE TRUTHS OF THE U.S. DECLARATION OF INDEPENDENCE LASTING?, supra note 123, at 113, 119-26. The notion of self-directed personal flourishing that Rasmussen describes was most consistently asserted by Justice Blackmun:

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. "[T]he concept of privacy embodies the 'moral fact that a person belongs to himself and not others nor to society as a whole."' Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting) (alteration in original) (citation omitted). Cf. Lawrence, 123 S. Ct. at 2478 ("[A]dults may choose to enter upon [a sexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.... The liberty protected by the Constitution allows homosexual persons the right to make this choice."). It is not by accident that Robert Bork centers his legal theory on an attack on this passage from Justice Blackmun's Bowers dissent: "That view of the individual and his obligations can hardly be taken seriously," he writes. BORK, supra note 4, at 121. "In [the conservative originalist] view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a 'person belongs to himself and not to others.' No citizen should take the view that no part of him belongs to 'society as a whole."' Id. at 121-22. A comparison to Bork's view is found in a letter from Thomas Jefferson to James Monroe:

If we are made in some degree for others, yet in a greater we are made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not ... liberty .... Nothing could so completely divest us of that liberty as the establishment of the opinion that the state had a perpetual right to [its] members. This to men of certain ways of thinking would be to annihilate the blessing of existence ....Letter from Thomas Jefferson to James Monroe (May 20, 1782), in THOMAS JEFFERSON: WRITINGS, supra note 14, at 777, 779.

2 comments:

Karen McL said...

But then Bork ignores and attacks the very notion that there is an over-riding *social contract* that creates society.

Without wanting to sound foolish, its both an idea that contains both *Ownership of ones self* and as integral part and parcel of this whole package - the *free will* and *freedom to choose* to join the society in the greater social compact with both duties/obligation to and protections under this umbrella.

I find your points much more persuasive on this thread and see why it's *anarchy* to the fundamentalist thread and narrative of the God-driven and molded Society.

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