Vol. 13 No. 1 (January2003)

 

WHO QUALIFIES FOR RIGHTS? HOMELESSNESS, MENTAL ILLNESS, AND CIVIL COMMITMENT by Judith Lynn Failer. Ithaca: Cornell University Press, 2002. 224pp. Cloth $29.95. ISBN: 0-8014-3999-X.

 

Reviewed by Alisa Rosenthal, Department of Political Science, Rollins College. Email: ajrosenthal@rollins.edu

 

WHO QUALIFIES FOR RIGHTS? by Judith Lynn Failer is a careful analysis of how the law and jurisprudence of civil commitment sheds light on veiled assumptions within political theory and constitutional law about the rights and capacities of “normal” citizens. Through analysis of the theory, history, and practice of civil commitment, Failer seeks to explore a crucial, and she contends, “new,” question within legal and political theory: “who does –and does not—qualify for regular rights” with reference to the practice of civil commitment of members of the mentally ill homeless population.

 

Failer’s approach to this question is straightforward. Though she acknowledges that looking exclusively at cases of civil commitment of the mentally ill homeless can yield only a partial image of the necessary characteristics required for “full citizenship,” she contends, rightly, that it is only after analysis and exploration of both explicit and implicit assumptions and claims about who presently qualifies for rights that normative questions about who should qualify can be productively asked. Thus, the bulk of the book focuses on answering the empirical question posed in the book’s title, and an answer to the normative questions receives less development.

 

The first three chapters of the book offer an introductory overview of the approach and argument, a synopsis of the civil commitment case of Joyce Brown, and a brief exploration of the arguments and implications of liberal theorists – specifically John Locke, John Stuart Mill, and Immanuel Kant – regarding the ascription of full moral personhood to some people and not to others. Failer’s brief introduction offers a careful explication of her purpose, terms, methodology, and the organization of the book’s argument. Even readers already familiar with civil commitment law may find Failer’s account of Joyce Brown’s commitment in chapter one useful. Rather than simply recapitulating the events leading up to and the legal issues involved in Brown’s commitment, Failer succeeds in illuminating the ways in which one individual’s civil commitment occurred at the nexus of a series of competing claims about the content, definition, and possession of rights.

 

Following the account of Brown’s commitment, the next chapter explores the liberal tradition in political theory and what liberal theorists of rights have to say about the claims of the mentally ill and argues that, “while liberal political theory is replete with arguments about rights, it inadequately addresses the logically prior question of who qualifies as a regular rights-holder.” Conspicuously, Failer omits any mention or acknowledgement of the work in political theory done on precisely this question, most notably by Carole Pateman in THE SEXUAL CONTRACT and by Charles Mills in THE RACIAL CONTRACT. As the work of Pateman and Mills reveals, analysis of “who qualifies for rights” is hardly a new question:  Pateman and Mills both offer important and influential analyses of the ways in which the liberal social contract tradition constructed the “regular rights-holder” in explicitly gendered and racialized terms that excluded from full rights-holding enormous quantities of people. The omission of reference to their analysis has serious repercussions for Failer’s account in chapter two. Given that part of Failer’s stated purpose is the elucidation of the hidden assumptions about who qualifies for full citizenship in the liberal tradition, her discussion of that tradition would be greatly enhanced by attention to the work that has sought to reveal those hidden assumptions and to consider their implications. Specifically, both Pateman and Mills offer a more critical assessment of the implications of Locke, Mill, and Kant’s constructions of moral personhood than does the author. For example, where Failer characterizes Kant’s ethics and jurisprudence as generally inclusive (other than his position on the mentally ill), Mills demonstrates that, for Kant, full personhood is actually dependent on race.

 

The next two chapters offer a thorough exploration of the idea of legal status and the history of commitment law in the United States. In chapter three, Failer moves from a discussion of the theoretical underpinnings of legal rights to a brief investigation and history of the concept of legal status generally and of the legal status of the mentally ill specifically. Rather than seeking to address the innumerable legal statuses possible, Failer persuasively argues that focusing on the legal status of the mentally ill subject to long-term hospitalization, “reveals a wealth of information about the polity’s implicit assumptions regarding full citizenship.” Although in the chapter’s penultimate paragraph Failer suggests that the assignment of legal status is not necessarily problematic and, in fact, “may well be…the most appropriate way to treat people whose natural and moral capacities differ from the norm,” this claim is not developed any further. Chapter four traces the legal history and framework of civil commitment, noting that since the mid-nineteenth century, state laws have offered no consistent approach to involuntary hospitalization. Thus, Failer observes that those seeking to draw insights into who qualifies as full rights-holders from legal doctrine find an “unsatisfactory guide.” Failer’s historical account in this chapter is careful and nuanced, with serious attention paid and consideration given to the ways in which well-intentioned efforts on behalf of the mentally ill and the broader society resulted in changing justifications for involuntary commitment and no definitive legal criteria for deciding between the competing rights claims at issue in these cases.

 

Following this account of the discontinuities in civil commitment’s legal history, Failer suggests that the actual practices of civil commitment reveal important continuities in the images of the “committable person” offered to the courts. In chapters five and six, Failer seeks to identify these legal images and to explain how each relies on a different claim for why the mentally ill do not qualify for full citizenship. Failer argues that the legal images of committable persons fall into two categories: the “person in need” (the economically deficient, the bad family member, the nonsurvivors, and the sufferer) and “dangerous persons” (dangers waiting to happen and imminent dangers). Each category and each legal image within it suggests a different constellation of capacities possessed by full citizens. Thus, Failer argues, it is impossible to draw from this set of images any consistent account of qualities that characterize the full citizen or the committable person; neither the history nor the practice of civil commitment offers a standard by which to decide whether mentally ill persons qualify for rights.

 

On Failer’s account, while the six legal images of committable persons may vary, the logic underlying their deployment remains consistent; each image posits some capacity or set of capacities required for full citizenship, seeks to demonstrate the failure of the person in question to possess such capacities, and thus justifies his/her failure to qualify as a full citizen. Each legal image posits a different aspect of incapacity that justifies civil commitment and its concomitant change in legal status. In chapter six, Failer asks whether, normatively, these incapacities justify the commitment and change in status and proposes a standard according to which this determination might be made. Seeking to ground this standard in the U.S. Constitution (understood as both text and polity) and within the nature of rights, Failer generates two principles for determining who qualifies as full constitutional citizens and, thus, as full rights-holders.

 

First, she argues that full citizens must be morally capable of possessing rights, but that not all rights require the same moral capacities. Thus, those seeking to justify civil commitment by relying on the legal images of the person in need or the dangerous person must demonstrate that the person lacks the necessary moral capacity to maintain her “right to liberty” specifically. Second, she argues that full citizens are bound to respect the rights of others. With this standard in place, those relying on the legal image of the dangerous person as justification for commitment must demonstrate that person’s incapacity to refrain from infringing on the rights of others. Ultimately, though Failer does not oppose all civil commitments of the mentally ill, application of the standard that she proposes suggests that the mentally ill are often deprived of their rights unjustly and based on incapacities not related to the right in question. Failer contends that the standard she proposes relies on both the Constitution and on the “nature of rights,” but precisely what she understands the nature of rights to be remains unexplained and undeveloped. As the “nature of rights” is hardly as self-evident as Failer’s brief discussion implies, some attention to the contributions of political theorists would complicate and strengthen Failer’s argument.

 

Failer concludes with a brief discussion of the complications of the questions posed and answers given in the book. Largely suggestive, this chapter limns the contours of remaining questions and suggests directions for further explorations. Failer concludes by suggesting that while assigning “bundles of rights” to persons may be expedient and efficient, the specific contents of the bundles at present may well be “imperfectly constituted” and in need of reconsideration and adjustment.

 

WHO QUALIFIES FOR RIGHTS offers an important contribution to the literature on the legal deprivation of rights and the constitution of citizenship. Although political theorists are likely to find its analysis of the liberal tradition and contemporary rights theory somewhat incomplete and cursory, Failer’s discussion of the issues present in the civil commitment of the mentally ill and the complications presented by homelessness is clear, thorough, nuanced, and balanced. Accessible to advanced undergraduates, WHO QUALIFIES FOR RIGHTS is a fine example of careful analysis of a legal and normative problem with implications for broad questions about citizenship, personhood, and rights.

 

 

Mills, Charles. 1997. THE RACIAL CONTRACT. Ithaca: Cornell University Press.

 

Pateman, Carole. 1988. THE SEXUAL CONTRACT. Stanford: Stanford University Press.

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Copyright 2003 by the author, Alisa Rosenthal.