rights in property and property in rights: privacy, contract and ownsership of the body in anglo

281 Pages·2016·1.1 MB·English

by  Nels P. Highberg

RIGHTS IN PROPERTY AND PROPERTY IN RIGHTS:
PRIVACY, CONTRACT AND OWNSERSHIP OF THE BODY IN
ANGLO-AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT

A Dissertation Presented

By

GARY L. GARRISON

Submitted to the Graduate School of the
University of Massachusetts Amherst in partial
fulfillment for the requirements for the degree of

DOCTOR OF PHILOSOPHY

MAY 2016

Department of History
© Copyright by Gary L. Garrison 2016
All Rights Reserved
RIGHTS IN PROPERTY AND PROPERTY IN RIGHTS:
PRIVACY, CONTRACT AND OWNSERSHIP OF THE BODY IN
ANGLO-AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT

A Dissertation Presented

By

GARY L. GARRISON

Approved as to style and content by:

______________________________________________
Daniel Gordon, Chair

______________________________________________
Joyce Berkman, Member

______________________________________________
Manisha Sinha, Member

______________________________________________
Barbara Krauthamer, Member

__________________________________________
Joye Bowman, Chair, Department of History
DEDICATION

This dissertation is dedicated to the memory of my late father, Sgt. Stephen F. Garrison
(1937-1968), and to my life-partner, Dr. Nels P. Highberg, III. Te amo in aeternum.
ACKNOWLEDGMENTS

Though I am the author of this dissertation, I take no credit for its strengths but
readily accept any, and all, responsibilities for its deficiencies. Starting with my
committee members, to my advisor, Dan Gordon, I owe you an incomparable debt of
intellectual gratitude and could not have asked for a better advisor. You are both a
consummate professional and an intellectual historian from whom I learned more about
the craft of history than anyone else I have known in the decade plus since I started
graduate study in that field. Your comments and critiques, though sometimes taken
personally and with great umbrage, also led me to some of the best work I think I have
ever done. Thank you, for your comments and your guidance. I credit you with the best
of this work.
To Joyce Berkman, what can I say? You have been a great teacher, mentor and
intellectual soul-mate in so many areas—the most important of which has been the topic
of reproductive rights, which is what brought me back to graduate school in the first place
after so many years in the private and public sector. I cannot thank you enough for your
help, your guidance and, even, your criticism of my work. I also cannot tell you how
many fond memories I have of sitting in your living room, during your “topics” and
“writing” courses, reading, analyzing and critiquing books which were intellectually
fascinating. The University of Massachusetts, Amherst, simply has no idea what a great
asset it lost when you retired.
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As for the rest of my committee, the one great regret I have as I leave UMass was
that I never took Manisha Sinha’s class on American Slavery. Thank you for stepping in
at the last minute to be a reader on my committee. I also appreciate contributions by
Barbara Krauthamer though I truly wish we would have had a greater opportunity to
collaborate and work with each other. Your most recent book (Black Slaves: Indian
Masters) is a part of my collection and a work to which I refer when teaching my own
classes.
Outside of my dissertation committee, I want to thank Brian Ogilvie who took the
time for two independent studies with me on political philosophy despite his concurrent
responsibilities as professor and as UMass G.P.D. (Graduate Program Director). Brian, I
hope you will find some fruits of the many fascinating discussions we had during those
semesters within these pages. Even now, years later, I continue to find the subjects we
discussed engrossing even though they were not something that necessarily engaged me
when I first applied to graduate school.
I cannot even begin to thank Bill and Joni Baird who not only graced me with
their friendship but also afforded me access to some invaluable records concerning their
activism in the reproductive rights movement. Their love of humanity, and their tireless
work for human rights, never ceases to inspire me. Bill Baird, moreover, is nothing short
of a national treasure and the United States and all of its citizens owe him (and his wife) a
debt that can never be repaid. All I can say is, thank you, not only for a chance to
research your archives but also for the friendship and encouragement you have shown me
over the years.
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I also wish to thank Louise and Donald Trubek whom, despite retirement, were
willing to put up with yet another graduate student trudging into their home wanting to
hear about their struggle to exercise reproductive rights during a restrictive time-period of
American and Connecticut history. All I can say is that the fact that so many of us
(meaning, graduate students) have sought out the two of you over the years should be a
testament to the lasting impact that you both have had on this state and this country.
Your patience and willingness to explain what life was like at Yale Law School in the
early 1960s is appreciated more than you will ever know. It is also a lesson for current
and future generations whom I hope will take seriously the battles you fought and
endured.
I also thank Dr. Eileen Furey who provided me with so much of her research, and
guided my own research, on the study of eugenics. This was a subject about which I
thought I was fairly proficient until I met you and then was astounded by your knowledge
of the subject. As we have both mentioned in the past, this is a subject rarely discussed in
American history and I appreciate you directing me toward both primary and secondary
sources on this subject. Similarly, Maureen Hasz—my friend and colleague at several
schools—you deserve enormous credit for being an intellectual foil against whom I
“bounced” many of my arguments in this dissertation and, subsequently, forced me to
refine, or strengthen, those arguments regarding human, natural and contractual rights.
To that end, I also convey thanks to Dr. Valerie Kier, who continued to question/push/
cajole me into completing this dissertation as quickly as possible—even if its completion
was anything less than “quick.” All of my colleagues at Manchester Community College
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were, in short, as instrumental to completion of this work as anybody else at any other
institution.
Finally, I must also express my sincerest appreciation to the Hon. Peter B. Abele,
Dr. Caryn Christensen and Dr. Guocun Yang for their understanding and support during
the last few years. I have been extraordinarily lucky in my life to have worked for
wonderful (and wonderfully understanding) people and I want them to know I am not
unaware of that fact. Pete, Caryn and Guocun, all of you were absolutely indispensable
to me completing this work and I cannot thank you enough.

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ABSTRACT
RIGHTS IN PROPERTY AND PROPERTY IN RIGHTS:
PRIVACY, CONTRACT AND OWNSERSHIP OF THE BODY IN
ANGLO-AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT
MAY 2016
GARY L. GARRISON, B.A., THE OHIO STATE UNIVERSITY
J.D., CAPITAL UNIVERSITY
L.L.M., CAPITAL UNIERSITY
M.A., MIAMI UNIVERISTY
Ph.D., UNIVERISTY OF MASSACHUSETTS AMHERST
Directed by: Professor Daniel Gordon
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.
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, like
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many founders, Madison asserted property rights in bodies of others (slaves) and similar
ownership interests in wives and children.
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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