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Rights in Property and Property in Rights: Privacy, Contract and Ownership of the Body in Anglo-American Political and Constitutional Thought

Abstract
This dissertation examines the history of the idea that people possess property rights in their own bodies. I also argue such rights are an alternative foundation on which to base the right to privacy recognized by the Supreme Court in 1965. The Court found privacy to exist in an admittedly nebulous "penumbras formed by emanations" from other parts of the Bill of Rights. I argue that privacy can be grounded on property rights as well.many founders, Madison asserted property rights in bodies of others (slaves) and similar ownership interests in wives and children. Modern notions of property are far more rigid then they were two centuries ago. In a 1792 essay titled Property, James Madison explained man owned property in, among other things, religious beliefs, opinions and the liberty of his person. Madison, like many founders, was well-schooled in Enlightenment era thought and writings of John Locke and Adam Smith that argued men had property rights in their bodies. Unfortunately, With abolition of slavery and emancipation of married women from the status of femme covert, the notion of ownership rights in the body fell from favor. If white men could no longer assert claims to property in other bodies, there was nothing to stop the government from stepping in to fill the void. The rise of the "regulatory state" in the nineteenth and twentieth centuries saw a proliferation of laws attempting to regulate lives of Americans, particularly in the area of reproduction. From eugenic laws mandating some people be sterilized and prohibited from bearing children, to anti-contraception and anti-abortion laws essentially mandating other people be forced to bear them, government control of the body expanded. Through it all, however, ownership interests in one’s own body remained an economic fact if not a widely recognized constitutional right. Commodification of the body, be it through sale of tissue or even renting of a womb through surrogacy contracts, is a modern day reflection of the fact that we still acknowledge property rights in our own body. A government "taking" of that right should be treated as any other taking of property.
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