NCJ Number
14491
Journal
Southern California Law Review Volume: 47 Issue: 2 Dated: (FEBRUARY 1974) Pages: 237-356
Date Published
1974
Length
120 pages
Annotation
CONSTITUTIONAL ANALYSIS OF THE COERCIVE USE OF BEHAVIOR CONTROL TECHNOLOGIES AND A DISCUSSION OF PENDING CALIFORNIA LEGISLATION AND THE AUTHOR'S PROPOSED STATUTE.
Abstract
THE STATUTES REFLECT THREE MAJOR PROPOSITIONS. THE FIRST IS A MORAL THESIS: IT IS PRIMA FACIE (PRESUMPTIVELY) IMMORAL FOR THE STATE TO EFFECT SUBSTANTIAL CHANGES IN A PERSON'S MENTATION AGAINST HIS WILL. THAT IS, MIND CONTROL IS PRIMA FACIE WRONG AND MUST BE JUSTIFIED ON MORAL GROUNDS ADEQUATE TO OVERCOME THE PRESUMPTION OF IMMORALITY. THIS PROPOSITION IS SIMPLY AN INSTANCE OF THE GENERAL MORAL PRINCIPLE OF PERSONAL AUTONOMY THAT FORCING INDIVIDUALS TO DO WHAT THEY DO NOT WISH TO DO, OR PREVENTING THEM FROM DOING WHAT THEY WISH TO DO, IS PRIMA FACIE WRONG. SUCH COERCION - WHETHER CONSIDERED MIND CONTROL OR BEHAVIOR CONTROL - SEEMS APTLY DESCRIBED BY THE EXPRESSION 'SUBSTITUTION OF JUDGEMENT.' THE SECOND PROPOSITION IS THAT THIS MORAL PRESUMPTION AGAINST ENFORCED SUBSTITUTION OF JUDGMENT IS EMBODIED IN AND INFORMS CERTAIN CONSTITUTIONAL PROVISIONS. THE THIRD PROPOSITION, DERIVABLE IN PART FROM THE SECOND, IS THAT CONSTITUTION, THROUGH BOTH ITS PROTECTION OF COMMUNICATION UNDER THE FIRST AMENDMENT AND ITS PROTECTION OF PRIVACY, PROTECTS FREEDOM OF MENTATION AS A FUNDAMENTAL RIGHT WHICH CANNOT BE ABRIDGED EXCEPT BY DEMONSTRATING THAT THE ABRIDGMENT IS NECESSARY TO FURTHER A COMPELLING STATE INTEREST. THE CONCLUSION THAT THE STATE'S ACTION IS NECESSARY' IMPLIES THE COROLLARY THAT THERE IS NO ALTERNATIVE METHOD FOR FURTHERING THAT INTEREST WHICH WOULD BE A LESS ONEROUS BURDEN UPON THE FUNDAMENTAL RIGHT. GIVEN THE PRECEDING THESES, SPECIFIC AND STRINGENT STATUTORY PRESCRIPTS SHOULD TRAMMEL THE POWER OF THE STATE TO EMPLOY ORGANIC THERAPIES COERCIVELY, HOWEVER BENEVOLENT THE INTENTIONS OF THE STATE MAY BE - AND THEY MAY BE INSUFFERABLY BENEVOLENT. SINCE ORGANIC THERAPIES MAY BE ABLE TO SUBSTANTIALLY RECONSTRUCT ONE'S PSYCHE AND TO EFFECT BEHAVIOR CONTROL WITH CONSIDERABLE PRECISION (AND INCREASINGLY SO AS RESEARCH CONTINUES), UNCHECKED STATE POWER TO CONFINE AND 'TREAT' WOULD BE A MASSIVE DANGER TO PERSONAL FREEDOM. (AUTHOR ABSTRACT)