Bodily Integrity Arguments and Misapplications

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People have the unfortunate tendency of favoring reasoning that is favorable to their preferences. Once an individual encounters the same logic applied to a position they disagree with, the application is assumed to be invalid. The abortion debate is no different in this respect. Pro-Choice advocates basing their stance on the logic of bodily integrity must be willing to extrapolate this same principle to other situations. Anything else would merely be convenient cherry-picking.

For example, advocating for choice regarding bodily integrity also applies to several other controversial topics. Such subject areas include drug use, the right to commit suicide, and objections to vaccine mandates, to name a few. Despite any Pro-Choice advocate’s misgivings about permitting the listed rights above to be consistent, they must begrudgingly accept that these are rights that cannot be prohibited by law. Any counterargument or suggestion to criminalize the above positions is a deviation from the logic of bodily integrity. Permitting an activity does not mean you believe it is moral. Moreover, this argument is predicated on an externalities argument; in a rash attempt to weigh the societal costs.

However, many Pro-Choice proponents may then surmise that individuals defending the decision to use drugs, commit suicide, and decline immunizations must accept abortion as a permissible procedure. Reverse application is not quite so linear and has several complications. Indeed, abortion presents a predicament for exponents of a Lockean conception of self-ownership. In one sense, abortion violates the Lockean notion of self-ownership. As Locke asserts that we cannot “… nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other… or take away the life or property of another..”(p.43)[1].

If we define the fetus as a living being, there is a conflict between the mother and the unborn child. Drug abuse, refusing immunization, and suicide confines direct bodily harm to the individual making the decision, thereby comporting with the tenants of the Non-Aggression Principle. Although, even in a legal sense, living children do not have rights[2] as they are under the guardianship of their parents. Also, if we truly own ourselves, can’t we choose which procedures we can have performed on our bodies? There is no easy solution to this complex and taxing quandary. 

Foot Notes:

1.) I omitted the portion of the quote regarding self-destruction. This portion of the doctrine is wholly illegitimate. If we own bodies, we have a right to dispose of ourselves; if God exists, he transferred our spirit to our corporal bodies. Through this transfer, God relinquishes ownership of our essence extending to us full possession of our bodies. Meaning we can maintain our physical bodies how we see fit, including but not limited to drug use and suicide.

2.) See Rothbard pages 97-113.

Terri Schiavo- From the Perspective of Lockean Property Rights

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Here is a hypothetical situation that presents us with a challenging conundrum that would drive most legal scholars and moral philosophers mad. There is as a person in a vegetive state who is hooked up to a variety of life-sustaining medical equipment (feeding-tube, ventilator etc.). Let’s say that the individual is married, and their spouse has been their legal guardian since they have become clinically brain dead. Does the parents of the incapacitated person have a say over the end-of-life decision making for their child? Should this heavy burden be left to the spouse and rightful guardian? It should be noted that the moral analysis must be separated from the determination of legality. All because something is legal does not necessarily make it moral. For instance, abortion in the United States is sanctioned around quasi-arbitrary timeframes with little consideration for situational context or biological development of the fetus. The decree of legislative fiat does not automatically make a policy moral. There are many legal protections within American statutory law that prevent individuals from facing criminal penalty or ligation. If crimes against persons and property cannot be subjected to restorative justice then there is no point in calling a legal system just.  In other words, we will be reviewing this situation from a philosophical standpoint, specifically from the perspective of individual property rights.

The above scenario is not quite so hypothetical but is a concise description of the Terri Schiavo case. However, one striking difference between the scenario presented above and the Schiavo case is that :

Terri Schiavo breathes on her own. She is not on a ventilator or respirator. Although she swallows, she is sustained through a gastric feeding tube. She is not in distress or imminent danger of death.(P.5).

Despite Schiavo’s lack of cognitive functionality for the most part she was able to “live” in the most basic sense of the term.  It should also be note that prior to her cognitive impairment she made no will directing her “wishes” for medical treatment. Also including end-of-life decisions. Therefore, leaving the variable of individual consent obscured by Schiavo’s incapacitated state. There was a rift between Schiavo’s husband/ guardian wanted to remove her feeding tube while her parents staunchly disagreed with this decision. Ultimately, the courts sided with the husband and Terri ended up dying after having her feeding tube removed. This may have been the legally permitted course of events, but was it moral from the paradigm of individual property rights?

The economist and Libertarian Philosopher Walter Block provides a remedy to this quandary squarely from the standpoint of Lockean property rights. A grown adult who has lost their cognitive faculties is analogous to a child and exist in purgatorial grey area when it comes to the prospect of Lockean ownership (p.5).Block takes the Rothbardian approach to addressing a parents required commitment to child rearing, which in fact allows parents to relinquish this right (p. 6). Much like how Lockean homesteading does not preclude an economic agent from taking ownership of an abandoned patch of land, this analogy can be applied to raising children. If an adult within the community is willing to devout the resources to raising a child discarded in dumpster, this should count as a transfer of guardianship (p.7). Based upon the premise of Lockean homesteading the Supreme Court of Florida was morally wrong in assigning the right to end Terri Schiavo’s life to her husband. Through wanting to end her life with no prior record or request of her wanting such measures taken, he effectively relinquished his guardianship. Clearly he did not do so in the modern legal sense, but he did so within the context of Lockean property rights. If her parents were willing to assume guardianship of their daughter then the court’s decision is nothing more than perverse.

And if they are, then whoever is at first control of her must maintain her; if he refuses, her guardianship reverts to the second closest party, her parents. If they will not homestead her, then perhaps her siblings. If not them, then anyone who wishes to take up this burden. Based on the number of protests at the callous way she is being treated ( Block, 2011, p.7)

Suicide As A Property Rights Issue- Part I

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The act of suicide is an action unconscionable to most people. Committing suicide violates one of the most basic tenants of human biology, the innate drive for self-preservation. Human beings are wired to avoid death at all costs. This proclivity towards instinctively evading peril is physiologically manifested in our internal fight-or-flight response. If our biologically ingrained will-to-live isn’t compelling enough to make the prospect of suicide perplexing, there are also normative reasons for finding the practice baffling. Some of these cultural norms have developed out of divine prescriptions. In the Abrahamic religions, for example, there are textual prohibitions against suicide. This divine restriction is even extended to instances of medically assisted suicide for the terminally ill. However, the philosophic obligation to live is not limited to a purely religious context. There are philosophical; traditions that shun suicide as an abdication of duty. One of the most salient examples of this is presented in the corpus of Immanuel Kant’s work. It can be argued that we have a duty to our family, friends, co-workers, and community to not kill ourselves. Some people love us deeply and count on us. How could we be so egotistical to not consider the radius of the fallout from such an act? The externalities of one person committing suicide stretch well beyond the victim.

Then again, this reason could be easily inverted. Who has the authority to mandate that suicide is a selfish act? God? Perhaps. Does divine prescription or other moral conventions give us a moral duty to intervene in suicide attempts? A resounding majority of people would unequivocally say, “yes”. Many would go so far as to advocate for codifying measures in formal statutes and ordinances to safeguard those with suicidal inclinations from harming themselves. This is substantiated by the fact that most states have laws that require mandatory involuntary hospitalization for suicide attempts. However, much of the conventional wisdom that surrounds the subject of suicide is quite perverse. Beyond the stigma that is attached to it, societally we have the wrong perspective on it. If people can subjectively determine the value of goods that they choose to buy daily, why can’t they do the same with their quality of life? Couldn’t we also extrapolate the same concept of marginalism to an assessment of individual wellbeing? Even the parameters set in place in jurisdictions where medically assisted euthanasia is permitted are too restrictive. The doctor tasked with ascertaining whether a terminal cancer patient should be able to end their own life is draconian. Involuntarily transferring this right to an authority figure by a matter of jurisdictional law. Who would be a better judge of the patient’s quality of life, than the patient? The judgment of the physician at best a partial informed inference. Lacking the all if qualitative sensations of anguish characterizing most terminal illnesses. 

While medical-assisted suicide may be legalized in some regions for those at the end stages of palliative care, it remains taboo to permit suicide for those suffering from psychological distress. This discrepancy in logic is quite puzzling. In recent years there has been a plethora of campaigns to have mental illness be publicly recognized as an illness. Generally done so in a top-down and highly pedological manner (naturally the experts curing the ignorance of the commoners). Generating a myriad of various pithy slogans so succinct they could fit on a bumper sticker. There is some glaring hypocrisy in these initiatives. While yes, I agree that mental illness is an illness. In most cases, there is even a biochemical basis for the mental illness. For example, serotonin deficiencies resulting in depression. If there can be a terminal stage of physical illness, why wouldn’t there be a terminal stage of mental illness? Who would determine this arbitrary line in the sand? This unpleasant and inconvenient fact is conspicuously absent from the mental illness is an illness movement. That is unfortunate because the tendency of sugarcoating serious issues does little to solve significant problems. Trivializing this mental health movement to caricature of what it could be. Reducing it to a mere humanistic feel-good movement. Nevertheless, if as a society we aim to treat mental illness on an even field with physical illness, it is only reasonable we allow those with mental illness to commit suicide if they see it fit. This may sound callous or even cruel. The same could be said for forcing someone to live who does not want to. 

Public Trust Doctrine: Part III- A Liberated Doctrine and Compromised Property Rights

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Part I

Part II

Introduction:

The initial shift towards an unconstrained Public Trust Doctrine may have begun with the Illinois Central case. The emergence of a truly fluid Public Trust jurisprudence did appear until the early 1970s. The cultural revolution of the 1960s permeated an activistic ethos that eventually made its way to the legal system. It was first noted by legal scholar Joseph Sax, an environmental lawyer who was a strong advocate of the conservation movement. Professor Sax was the first legal theorists to suggest the Public Trust Doctrine was not being used to its full potential. Sax believed that a more liberal application of the doctrine could be utilized to benefit the objectives of the environmental movement. Implicitly arguing that the preservation of natural resources is within the scope of the legal construct. Due to the fact that nature itself is a commons, that we all benefit from clean water, air, and a modest reserve of nonrenewable resources.

However, over the years the Public Trust Doctrine has been extended far beyond the original intentions of the concept. The doctrine was initially applied to manage public waterways, fishing, and commercial purposes. Since its inception in the United States has been stretched to be utilized in the interests of recreation and political objectives. The most disturbing aspect of this evolution to an unchained doctrine has been the blatant erosion of private property rights. In most applications of land seized by the government in the name of public trust, the takings clause under the fifth amendment. Meaning that equivalent property value compensation is not required for land commandeered for the “public good”. The lack of adequate compensation for land taken operates as nothing more than a redistribution of property. Whether this transfer is for the moral good of clean water, recreation, or free passage through a navigable body of water, it is the same result. As the doctrine becomes more malleable, less justifiable these coercive acquisitions become. The hapless side effect of the courts showing less discipline in their application of this construct starts to become arbitrary.

An Unchained Doctrine:

As previously mentioned, in the 1970s the doctrine began to radically drift away from its Common Law roots. These ties were severed by the “prima facie rule that extends state title to submerged lands, rather than as evidentiary presumption of the title” (p.195). Several courts have ever ruled that the alienation of any public lands is a clear violation of the state’s Public Trust obligations. Despite the fact that these opinions run counter decisions made by the Supreme Court (p.195). The 1970s being the formative years of the environmentalism movement, legal scholars started to turn to the doctrine as a means of reaching lofty political goals. Those sympathetic to the conservation movement calling for “..effective judicial intervention..” (p.195). Posing as the haunting battle cry of the ambitious legal scholar Joseph Sax. Sax called for a liberating doctrine. Fully proclaim the need shift in the doctrine’s utilization in his seminal paper: The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention (p.196)

Even a decade later Sax is just as fervent as he was back in the 1970s of being a proponent of loosely applied Public Trust Doctrine. In his paper,  Liberating the Public Trust Doctrine from Its Historical Shackles, Sax surmises that the concept has been constrained by historical precedence. He succinctly distills the general idea of the doctrine to the single function of generating stable expectations of common resources (p.4). He suggests is the purpose of all property rights is to create and maintaining expectations. Keeping within the obligations of the trustee (the government) must utilize mechanisms to preserve the stability of these expectations. Identify areas of destabilization that can benefit from a creative application of the construct (p.9). From the standpoint of judicial consistency, the advocacy of a “use-it-where-it-fits” approach is quite a trouble. If advocates of the doctrine want to expand the scope of its use, they could at the very least formulate unwavering parameters for its application. In the event, the situation does not meet the test, the doctrine cannot be used. However, this would require the Public Trust Doctrine to transition from a semi-unwritten rule to a codified legal convention. While there are many troubling aspects regarding making the doctrine into statutory law, at least there would be some institutional pressure to constrain frivolous or inappropriate application.

Sax goes so far as to suggest that the doctrine can and should be applied with no regard for previous case precedence. In other words, no need to cite previous cases because that will only limit the doctrine from achieving its ends. Staying within the context of historical uses of Public Trust only serves to continue to hold it back from serving its purpose (p.10). Past case precedence is the ultimate safeguard against arbitrary adjudication of law. To exposit the idea that this is unnecessary in the discretionary deliberations surrounding the doctrine is wrong on so many levels. With no institutional constraints or reliance on past adjudicatory history, the doctrine becomes formless. No rules limiting it, allowing it to become amorphous and be applied at the pleasure of the judge. Making it subject to the biases and whims of the judge(s) ruling on the case.

The First Victim of The Freed Public Trust Doctrine:

Just v. Marinette County

 One of the first cases to feature Sax’s brand of jurisprudence was in the Just case, decided in 1972 two years after his paper has been published (p.196). In 1961, the Just family purchased approximately thirty-six acres of land “along the south shore of Lake Noquebay”. The area in which they had purchased this land was designated as marsh/swampland. However, Marinette county’s shoreland zoning ordinance number 24, went into effect in October 1967 requiring permits for any alterations impacting wetland habits. In the months of February and March 1968, Mr. Just filled in an area of his property that was technically considered wetlands with sand. The litigant did so without procuring a permit. It should be noted that it has also been claimed that he was denied the ability to obtain a permit by the county. Operating as a circuitous form of unconstitutional “takings”(p.196). After all, he did own the portion of the shore in which he did fill in with sand. But it was ruled by the court that the police power of the state can extend to the enforcement of zoning laws. Declaring it within the scope of the state’s Public Trust duties to preserve the natural condition of the wetlands for navigation, fishing, recreation, and “scenic beauty” (p.196). Mr. Just was denied this right to alter his property in the absence of any degree of just compensation.

Regardless of the intention or objectives of denying the alteration of the wetlands two concerns arise. The first concern being would couldn’t have Just have been grandfathered out of having to acquire a permit? He did purchase the land years prior to the implementation of the new zoning ordinances. If we go by the laws governing water use rights (a different but adjacent area of law) in certain parts of the country there is a first-come, first-served policy. This is known as an appropriative system of water rights. Generally under this type of system whoever has the oldest prior use date of harvesting the water to beneficial use has the primacy to water usage. Keeping this logic in mind, could the same apply to other laws as well. Hence, why excluding the litigant from the permit requirement makes sense. He bought the land prior to the implementation of the zoning requirements, he gets grandfathered in.

The second and more profound concern is what does this court decision say about the state of property rights? There wasn’t any direct evidence that Mr. Just’s actions engendered any genuine harm to the environment. Per the courts’, ruling it appears there was a strong emphasis on keeping the wetlands intact. Versus cited or proving ecological harm caused by filling in that patch of wetlands with sand, the court justified the uncompensated takings with a blanket explanation defending their position. Of the core reasons, recreation and “scenic beauty” were cited as being reasonable justifications for invoking police power of the state. Both seem awfully frivolous reasons to violates some property rights. Also, how does the court ascertain the objective of maintaining “scenic beauty”. Isn’t that an extremely subjective criterion? One man’s eyesore is another man’s oasis.

Public Trust Doctrine: Part I

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The Public Trust Doctrine is a legal concept that has its basis in ancient Roman law and English Common Law. Being a legal construct, it has been subject to interpretation causing it to evolve over the centuries. Arguably some of the most radical shifts in its judicial application have occurred in the nineteenth and twentieth-century American courts. Shapeshifting from a doctrine used to prevent monopolization of public waterways to a blunt instrument wielded by the interests of the environmentalism movement. Subordinating water usage rights and other forms of private property to loosen conditions that public trust law has been applied. Some scholars such as Joseph Sax perceiving a contextual application of the concept as being too narrow. Believing that having more malleability with the application of the doctrine will help sustains its core function (p.4). This function being putting common resources to the best use for society. Rather than allow these resources to be sold off and alienated by private interests.

At first glance, Sax’s assessment of the doctrine may seem fair to those who are concerned about economic equality. The keen insights of legal scholar Richard Epstein provide an interesting perspective on the Public Trust Doctrine. He essentially likens the concept to be an inverted version of Eminent Domain law (p.8). Meaning that the Public Trust Doctrine mitigates private individuals from commandeering public lands without just compensation. Implying that an individual for example buying public land should not be doing so below the market price. Mirroring how just compensation is an implied right in any takings case as depicted under the Fifth Amendment of the Constitution.  In a society where taxes have been collected this premise makes sense. As taxpayers being the primary contributors to public funds, they own all public assets. In instances, where the costs of selling a public good to a private party outweigh the benefits it can be disputed whether the asset(s) should be sold.

Epstein successfully demonstrates the reciprocal nature of both Eminent Domain and the Public Trust Doctrine. The reason why both legal concepts parallel each other is the fact they are at their core interpretations of property rights. Both provide a framework for the conditions under which property can be transferred from one party to another. One describing the contingencies under which private property can be transferred for public use. The other presenting the conditions under which public property can be alienated for the use of a private party. If we are to hold property rights in high esteem both are subject to the conditions of the Takings Clause.  Unfortunately, both concepts wavered in front of protecting property rights. Proponents of a liberated form of the Public Trust Doctrine have no problem utilizing its amorphous nature to circle property rights to achieve environmental objectives. Theorists such as Sax show little concern for this erosion of property rights. Anything even remotely of a Classical Liberal disposition can be nothing but horrified by the diminished regard for private property in the American legal system.  In terms of the property being misappropriated to satisfy environmental objectives, it is easy to point to Sax being the linchpin for this decades-long trend.

It is not fair or intellectually honest to point all of the blame on Sax, technically the unfettered application of the doctrine began back in the nineteenth century.  Formulating from the seminal case Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892) considered by many to layout the rubric for the modern American interpretation of the doctrine. However, legal scholars such as Richard J. Lazarus point out that there was a precipitous change in the interpretation of the legal doctrine in the years following the 1970s (p.3). Displaying that there was a radical shift in the jurisprudence surrounding the doctrine that happened to coincide not only with the insights of Sax but also with the nascent period of the Environmental movement. Surmising that the environmental movement hastened the development of the doctrine isn’t at all outlandish. Especially considering it has traditionally been utilized as a legal construct to manage public waterways. Shedding some light on why property rights and environmentalism have historically been at odds. Truly prudent environmentalism manifests itself in sound resource usage and allocation. This can only take place in a world where property rights are enforced. Not nullified through arbitrary and tilted interpretations of legal traditions. Particularly ones that have never even been fully fleshed out in statutory law that take on capricious attributes. Merely shift due to a change on the whim of social trends.

If good resource management aligns itself with good economic policy, why couldn’t more market-friendly approaches to environmental problems be proposed as a compromise? At the very least devise compromises that respect the ownership of private property. One such compromise could entail a theoretical statutory codification of the Public Trust Doctrine. This would mandate compensation regardless of conditions under which land is transferred by the state. While the author is not completely comfortable with the idea of formal written law, this would be a pragmatic solution for two reasons. First off, it would operate as a formal constraint against loose interpretations of the Public Trust Doctrine. Second, it would demand compensation to those who were experience damages by the transfer of a property. Through a formal revision, not only can the doctrine be constrained to its original purpose it also will serve as a safeguard against unjust takings.