The exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no unifying term or concept for this moving force that has guided our constitutional development.
This Article seeks to redefine our rights to individual liberties through a concept that I call “Right of Self.” It introduces the concept of Right of Self as the legal recognition and protection of a person’s attributes or identity, including one’s labor; name, image, likeness (NIL); and other unequivocal identifiers. It is critical to clearly define this fundamental principle and embrace it as a protected right for several reasons, but mainly because modern technology has increased the number of ways in which the self is being expropriated, for example through the abuse of facial recognition technology. Without Right of Self, the powerful–often with the government’s tacit or direct support–can exploit people without restrictions or compensation. To illustrate this point, this Article analyzes a contemporary case of government-assisted, “private” taking of Right of Self that concerns a particular and vulnerable group of people: college student athletes.
This Article argues that Right of Self is an inherent, fundamental, and constitutionally based right of every person in America. It shows how the failure to embrace and protect that right has resulted in a particular form of inequity, which I call “intergenerational wealth displacement.” This inequity is rooted in race, gender, status, age, and class differences. To redress it, this Article proposes a model code that policymakers should adopt to recognize Right of Self as a fundamental right and to broadly apply it to protect people from the exploitation of their name, image, and likeness.