Thomas Szasz once wrote, "When health is equated with freedom, liberty as a political concept vanishes." He also wrote, "The main impetus for converting private health into public health came and continues to come from psychiatrists."
Health and freedom obviously are related for just about everyone, empirically. Maybe the archetypical experience of "free" for me was running through fields of alfalfa on a summer day, when I was about nine years old. And the opposite, "not free" was lying very sick in bed for the third day with a high fever at that same age.
But we're talking politics. There's a 1989 federal appellate court decision which, it seems to me, needs to be overturned for purposes of protecting liberty in the face of state coercion under the guise of health. In Spencer v. Lee (for anyone who wants to look it up, the legal citation is: 864 F.2d 1376, 1989 U.S. App. LEXIS 289, 7th Cir. 1989), Judge Richard Posner's opinion says private physicians and hospitals more or less never act under color of law when they imprison and forcibly treat a “patient” involuntarily. This makes it substantially harder to sue them for violating constitutional rights.
OK. I usually tell my forensic clients that whenever they have a problem with actions or interpretations of state mental health workers, they should always begin with, "Well, here's what's right about what he/she said/did..." and only afterwards go into the disagreement or the complaint. It just makes it a bit harder for the system to discount the mentally ill (after all) person's side of every petty institutional conflict and every little tension. They can and do pathologize anything a patient thinks or says.
So ... I'll start with what's right about Spencer v. Lee. A person cannot really be free, if he/she is mentally ill and dangerous to self or others. Mental illness and danger to self or others are substantially medical issues. We desperately need and want medical experts to be dealing effectively with medical issues, so we should make it harder to sue them. It seems especially prudent to limit the likelihood that the untutored and unreliable feelings of crazy people, about what they imagine to be constitutional rights, will be a constant basis for frivolous litigation that interferes with well-founded mental health and public health practices. In particular, federal courts do not need to interfere in such issues, because states are at least as competent and at least as trustworthy to deal with them.
But, on the other hand... (I guess I'll do a pregnant,Tevye-the-Milkman pause here, and make my own argument in a separate post.)