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According to 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 pro-cess?
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).
In 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 quot;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.