The ubiquity of fictional discourse in legal theory and practice

Fictions of constitutional privacy: Toward a linguistic subject

In Griswold v. Connecticut, the 1965 Supreme Court case that struck down a Connecticut prohibition on contraceptive use and inaugurated a constitutional right to privacy, Justice Douglas famously queried: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”¹ In so doing, Douglas inscribed constitutional privacy as crucial to the protection of sacred domestic space. In fact, the Griswold defendants suffered no domestic invasion; they had been convicted as accessories in contraceptive use due to their participation in public family planning clinics.² Nor was there any reasonable apprehension that police raids of private homes were in the offing. Four years earlier in Poe v. Ullman, dismissing a challenge to the same statute for lack of justiciability, the Supreme Court had observed that in the 86 years since the law’s enactment, enforcement had been attempted only once.³ That prosecution, like Griswold, had targeted medical personnel for allegedly counseling and assisting contraceptive use.⁴ Justice Douglas nevertheless warned darkly in his Poe dissent that “[i]f we imagine a regime of full enforcement of the law ... we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.”⁵

Douglas was not alone in his imagining. He echoed a 1955 Planned Parenthood advertisement urging repeal of the Connecticut statute with cartoons of police lurking under beds, pads and pencils at the ready to document illicit activity. “A policeman in every' home is the only way' to enforce this law,” the ad exhorted.⁷ In 1964, a year before Griswold was decided, Vance Packard repeated the threat in The Naked Society, his wide-ranging critique of assaults on privacy' throughout American society.⁸ The sanctified marital home so featured in the Griswold decision thus sprang from cultural and judicial imagination, not the facts of the case. Constitutional privacy not only' emerged as an unwritten right (as its detractors have long complained), but was founded, from its very' beginnings, on a fiction.

Justice Douglas’s discursive invention legitimized the privacy' right by rendering it homologous with Fourth Amendment protections against unwarranted searches and seizures. At the same time, Griswold's evocation of a sacred domestic enclosure occluded more controversial social histories and diffuse cultural anxieties underwriting the opinion. But privacy’s spatialization—which persisted even as privacy doctrine increasingly centered on notions of autonomous decision-making —has obscured the extent to which privacy requires not only the right to be free from governmental proscription of certain acts, but also the freedom to author for oneself the meaning of such acts. Although courts and scholars have noted a kinship between substantive due process privacy and First Amendment expressive and associational freedoms, they have rarely conceived of the subject protected by the privacy right as linguistically constituted.

The lack of such a conception has left a significant void in protection of the rights—notably reproductive rights—that the privacy doctrine initially secured. My aim in the larger project from which this chapter is drawn is to reconceive of the constitutional right once dubbed “privacy” as a right to meaningful agency in intimate self-constitution, requiring attention to the linguistic mechanisms by which the state and the individual interact in the process of identity formation. Such a reconceptualization is necessary, even urgent, as rights protected by substantive due process privacy are not only assailed broadside, but eroded through discursive interventions that reformulate the meanings of those rights. Examining the myriad fictions of privacy need not move us to jettison privacy as a constitutional liberty altogether, as some have urged, but can prompt us to recognize the subject of privacy as crucially— though not exclusively—linguistic.