"The Principle of the Least Restrictive Alternative for Mentally-Retarded Persons: The Constitutional Issues"

Michigan Law Authors
Areas of Interest
Publish Date
1976
Publication
The Mentally Retarded Citizen and the Law
Publication Type
Book Chapter
Abstract

Mentally retarded people are people. When strong reasons exist to treat them differently from other people, they should be provided the necessary services, restraint, or protection through means that intrude as little as possible on their freedom to live the life that others are permitted to live. "Normalization" is the term professionals use to define the goal and the process of helping mentally retarded citizens lead a "normal" life. The attainment of this goal involves undoing the multitude of formal constrictions governments have typically placed on the retarded citizen's freedom: his place of residence, his schooling, his control over his own property, his freedom to marry - in short, his freedom to do or be anything that others believe requires capacity to function "independently" and "responsibly."

The analysis here does not present data to demonstrate that normalization "works," but rather offers a legal resource to those who have found normalization does work and need help in securing its acceptance by courts and agencies. The legal resource is the principle of the least restrictive alternative. The principle rests on the apple pie premise that people should in general be free to live as they please. If you accept this elementary moral premise, the principle of the least restrictive alternative easily follows; that is, when government does have a legitimate communal interest to serve by regulating human conduct it should use methods that curtail individual freedom to no greater extent than is essential for securing that
interest. When you swat a mosquito on a friend's back, you should not use a baseball bat.

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