Lockhart, Kamisar & Choper's textbook Constitutional
Law, substantive due process guaranteed by the U.S.
Constitution is "a limitation of the substance of
legislative action by the state and federal governments"
(West Pub. Co., 1970, p. 454, emphasis added). A
majority opinion of the U.S. Supreme Court in 1887 written by
Justice Harlan said: "Under our system that power is lodged
with the legislative branch of the government. It belongs
to that department to exert what are known as the police powers
of the state, and to determine, primarily, what measures are
appropriate or needful for the protection of the public morals,
the public health, or the public safety. ...
[But] It does not at all follow that every statute enacted
ostensibly for the promotion of these ends is to be accepted as a
legitimate exertion of the police powers of the state.
There are, of necessity, limits beyond which legislation cannot
rightfully go. While every possible presumption is to be
indulged in favor of a statute, the courts must obey the
constitution rather than the law-making department of government,
and must, upon their own responsibility, determine whether, in
any particular case, these limits have been passed.
... The courts...are under a solemn duty, to look at the
substance of things, whenever they enter upon the inquiry whether
the legislature has transcended the limits of its
authority. If therefore, a statute purporting to have been
enacted to protect the public health, the public morals, or the
public safety, has no real or substantial relation to those
objects, or is a palpable invasion of rights secured by the
fundamental law [the constitution], it is the duty of the courts
to so adjudge, and thereby to give effect to the
constitution" (Mugler v. Kansas, 123 U.S. 623 at 661).
In his book The Myth of Mental Illness, psychiatry professor Thomas Szasz, M.D., says "It is customary to define psychiatry as a medical specialty concerned with the study, diagnosis, and treatment of mental illnesses. This is a worthless and misleading definition. Mental illness is a myth. Psychiatrists are not concerned with mental illnesses and their treatments. In actual practice they deal with personal, social, and ethical problems in living" (Dell Pub. Co., 1961, p. 296). According to the cover article in the July 6, 1992 Time magazine, schizophrenia is the "most devilish of mental illnesses" (p. 53). But in his book Against Therapy, published in 1988, Jeffrey Masson, Ph.D., a psychoanalyst, says "There is a heightened awareness of the dangers inherent in labeling somebody with a disease category like schizophrenia, and many people are beginning to realize that there is no such entity" (Atheneum/Macmillan Pub. Co., 1988, p. 2). If there is no such entity as mental illness, can laws which authorize incarcerating people not because they have performed unlawful acts but merely because they have "mental illness" be constitutional?
Suppose that instead of believing in mental illness, people today believed in evil spirit possession and explained weird or unacceptable behavior as the product of evil spirits. Suppose some or all of the states then enacted laws authorizing the incarceration of people who are possessed by evil spirits (instead of people who supposedly are possessed by mental illnesses). Would this be a proper and constitutional exercise of legislative power? Evil spirit possession has no objective reality and exists only in the imaginations of people who believe in evil spirits. Mental illness also has no objective reality and exists only in the imaginations of people who believe in mental illness. The behavior that gets people labeled mentally ill (or possessed by evil spirits) isn't imaginary; but mental illness or evil spirit possession as an explanation of why they behave as they do is.
Today in many states of the United States there are laws which permit the involuntary commitment (incarceration) of people for mental illness alone without requiring a showing the person has ever committed an illegal act. If we want to incarcerate people because they seem peculiar to us or because they say things that are not true or that don't make sense, or because we think that despite a past that includes no unlawful activity they might do something bad in the future, then that's what the laws should say - although doing so might raise constitutional questions. Using "mental illness" as the justification for incarceration is as illogical and unjustified as explaining behavior we dislike and don't understand as the product of evil spirit possession and having commitment laws for people who are possessed by evil spirits.
Since laws in some states use "mental illness" as the sole justification for incarcerating people who may have never done anything illegal (or sometimes as one required element coupled with alleged need for hospitalization or predicted future conduct - "dangerousness"), and since there is no such thing as mental illness, are not these statutes violations of substantive due process?
There are a few groups in particular who tend to be the target of America's involuntary psychiatric commitment laws. Included in these are the young, the old, and the homeless. Sometimes old people are placed in mental hospitals just to get them out of the way. In most cases, nursing homes would be more appropriate, but often nursing homes are not preferred by the family because they are more costly and must be paid for by the family. Involuntary psychiatric commitment laws are used to get homeless people off the streets and sidewalks. Adolescents are committed by parents as a way of shifting the balance of power towards parents in intra-family conflicts, parents usually being the ones who have the money to hire psychiatrists to incarcerate their family member adversaries and define their opposing views and disliked behaviors as illnesses. In many states parents have statutory power to commit their children who are under age 18 without judicial proceedings, in large part because of the decision by the U.S. Supreme Court in Parham v. J.R., 442 U.S. 584 (1979). This Supreme Court decision in 1979 is probably largely responsible for the fact that in the years immediately following it "adolescent admission rates to psychiatric units of private hospitals have jumped dramatically, increasing four-fold between 1980 and 1984" (Lois A. Weithorn, Ph.D., "Mental Hospitalization of Troublesome Youth: An Analysis of Skyrocketing Admission Rates", 40 Stanford Law Review 773). According to another report, "private psychiatric hospital admissions for teenagers are the fastest-growing segment of the hospital industry. ... Between 1980 and 1987 the number of people between 10 and 19 discharged from psychiatric units increased 43 percent, from 126,000 to 180,000. One reason is the aggressive advertising used by for-profit psychiatric facilities" (Christina Kelly, "She's Not Crazy But 14-year-old Sara got committed anyway", Sassy magazine, March 1990, p. 44). According to another report, between 1971 and 1991 "the number of teenagers hospitalized for psychiatric care has increased from 16,000 to 263,000" (Time magazine, August 26, 1991, p. 12). According to University of Michigan Professor Ira Schwartz, "psychiatric hospitals are turning into jails for kids" (Sassy magazine, March 1990, p. 44).
Of course, mental "hospitals" are jails for all persons detained there against their will. Furthermore, they are places where people may be incarcerated with no showing of prior illegal (or otherwise harmful) conduct - only "mental illness". Yet statutes authorizing commitment for mental illness do not define mental illness but let supposed professionals (psychiatrists) define it any way they see fit. If subjected to proper constitutional scrutiny, such laws would be void for vagueness, as would a statute allowing imprisonment for something called "crime" but which failed to define crime - leaving potential "criminals" in doubt about whether marijuana or alcohol use is legal, whether driving 65 mph on the highway is legal, or whether the age of consent for what in the presence of a statute would be called statutory rape is 16 or 18 or some other age - allowing each prosecuting attorney to determine after the fact whether a particular act is definable as "crime", much as psychiatrists often determine after the fact whether a particular act or expression of ideas constitutes "mental illness".
Have we forgotten that America is supposed to be a nation where all law-abiding persons are guaranteed liberty? How can a person know what behavior is prohibited if the laws are not clearly written? People like myself who believe strongly in individual freedom argue that violation of the rights of others should be the only acts prohibited by law; others will defend victimless crime laws. In either case, violation of law should be the only basis for depriving a person of his or her liberty over his or her protest.
One 14 year old girl who had been involuntarily committed to a private psychiatric hospital after an argument with her parents said "My parents would always threaten me with the hospital" (Sassy magazine, March 1990, p. 82). But it isn't only adolescents and old people who are threatened with psychiatric incarceration in their conflicts with family members. In her autobiography, Will There Really Be a Morning?, actress Frances Farmer tells how even when she was 30 years old her mother in seemingly every dispute would threaten her with commitment to a mental hospital near her home in Seattle, Washington:
"'I'm just about at the end of my rope with you,' she warned. 'I've just about had all I can take. I've put up with you for years and what do I get for it? Nothing! Absolutely nothing! But you're my daughter and you're going to do exactly as I say, or back [to the mental hospital] you go. Do You understand me? Back you go! And this time for keeps! ... You're a disgusting brat!' she spat contemptuously.
"'I'm a thirty-year-old woman,' I answered bitterly. 'And I know damn good and well that you'll send me back the first chance you get.' ... I could not cope with another fight. 'I'm going back to bed,' I said flatly. 'This whole thing is absurd.'
"I started up the stairs, but her reply stopped me short. 'I'm sending you back, Frances.' I was chilled by her sudden calm. 'And this time,' she went on, `I'll see you that you stay.' ...
"It was morning, and I heard my mother rise. It startled me when she knocked softly at my door.
"'Frances,' she said calmly. `I'd like you to get dressed and come down stairs. There are some people here who want to meet you.' ...
"My mother was in the living room with two uniformed men...and I knew! ... They straddled me, and I felt the rough canvas of the straitjacket wrap around me and buckle into place" (Dell Publishing Co., 1972, pp. 15-33).
America and other nations that claim to value freedom and defend
human rights, legislators writing "mental health" laws
and those making personal or judicial decisions about what to do
with a so-called mentally ill person or persons should keep in
mind that America's guarantees of personal freedom are the basis
for American patriotism. Listen, for example, to the words
of a patriotic song, "God Bless the USA": "If
tomorrow all the things were gone I'd worked for all my life, and
I had to start again with just my children and my wife, I'd thank
my lucky stars to be living here today. 'Cause the flag
still stands for freedom, and they can't take that
away! And I'm proud to be an American, where at
least I know I'm free. And I won't forget the men who died
who gave that right to me. And I'll gladly stand up next to you
and defend her still today. 'Cause there is no doubt I love this
Land. God bless the USA!" (emphasis added).
Similarly, a Russian immigrant to the United States said this in
an article published in Reader's Digest in 1991: "I
looked up at the [United States] flag, fluttering in the breeze.
... Suddenly, I understood ... America isn't about school
sweaters or Johnny Mathis records or shiny new cars. It's
about freedom and opportunity - not just for the privileged or
the native-born - but for everyone" (Constantin Galskoy,
"How I Became an American", Reader's Digest,
August 1991, p. 76). The USA's official national anthem
"The Star Spangled Banner" refers to America as
"the land of the free". The Pledge of Allegiance
to the Flag of the United States of America ends with the words
"...with liberty and justice for all." One of
America's most popular and prominent symbols is the Statue of
Liberty. Another statue, this one sitting atop the dome of
the U.S. Capitol Building in Washington, D.C., is called the
Statue of Freedom. In 1987 in a law journal article
discussing constitutional due process, U.S. Supreme Court Justice
William J. Brennan, Jr., said "every enactment of every
state...may be challenged at the Bar of the Court on the ground
that such action, such legislation, is a deprivation of liberty
without due process of law...those ideals of human dignity -
liberty and justice for all individuals - will continue to
inspire and guide us because they are entrenched in our
Constitution" (Case & Comment, September-October
1987, p. 21). Imagine how empty and meaningless these patriotic
words in these articles, patriotic songs, the Pledge of
Allegiance to the Flag, the names of these national monuments,
and the U.S. Constitution sound to a law-abiding person who has
been imprisoned (involuntarily "hospitalized") for
so-called mental illness in the USA merely because others dislike
his or her thoughts, ideas, emotions, lifestyle, personality, or
lawful (even if irritating) behavior, or because he or she gets
along poorly with others in his or her family. A reason
involuntary psychiatric commitment of law-abiding people is a
violation of constitutionally guaranteed substantive due process
is it is contrary to the most important values America and other
democracies claim to stand for. This is just as true for
those under the arbitrarily defined age of majority as it is for
adults. In his inaugural address on January 20, 1989,
President George Bush said "Great nations, like great men,
must keep their word. When America says something, America means
it - whether a treaty, or an agreement, or a vow made on marble
steps." One of the consequences of belief in the myth of
mental illness is America's failure to live up to one of its most
fundamental promises: liberty for all law-abiding Americans.
THE AUTHOR, Lawrence Stevens, is a lawyer whose practice has included representing psychiatric "patients". His pamphlets are not copyrighted. You are invited to make copies for distribution to those who you think will benefit.
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