Griswold’s fictions
Seeking to legitimate privacy as a constitutional right in Griswold, Justice Douglas turned to Boyd v. United States, which held a compulsory’ production of papers unconstitutional, citing“‘the sanctity' of a man’s home and the privacies of life.’”9 Quoting Boyd, Douglas deftly aligned the privacy right not only with the Fourth and Fifth Amendments, but with an idealized, almost divinely ordained domesticity.10 Even as this domestic trope secured reproductive freedoms, however, it also undermined women’s efforts to defy gender orthodoxies and deflected attention from the more fraught issues of female sexuality' and speech in the case’s pre-history'.11
The law at issue in Griswold was a lingering example of the “Comstock laws,” so-named after Anthony Comstock, an evangelical Christian reformer and prime mover behind the 1873 federal Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.12 Part of a larger movement to wrest reproductive control from women, the federal Comstock Act banned the interstate mailing of contraceptive devices and information, as well as obscene and sexually explicit publications. By' targeting through a single prohibition such disparate items as advertisements for birth control devices, tracts urging women to avoid unwanted sex, pamphlets describing “natural” birth control methods, “free love” prints, and descriptions of the reproductive cycle, the statute conflated female reproductive control and frank female speech as that which could not be expressed within the bounds of the law.
Prosecutions under Comstock laws had threatened to silence early twentiethcentury reformers such as Margaret Sanger, who “visualized the birth control movement as part of the fight for freedom of speech.”13 Sanger proposed “a new conception of sex ... as a psychic and spiritual avenue of expression”14 and argued that “[n]o woman can call herself free who does not own and control her body.”15 The Comstock laws thus struck at an important nexus of rights in women’s efforts to achieve self-governance. Some of Comstock’s most ardent opponents formed the Free Speech League to fight for freedom of expression and supported, among other causes, Sanger’s efforts at providing birth control.16
By 1965, when Griswold was decided, controversy over contraception had abated, but women still struggled for the full public participation that contraception enabled. The American Civil Liberties Union’s amicus brief in Griswold argued that the Connecticut contraceptive ban violated equal protection—a doctrine that did not yet protect gender equality—by limiting women’s professional opportunities. “[Effective means of contraception rank equally with the Nineteenth Amendment in enhancing the opportunities of women who wish to work in industry, business, the arts, and the professions,” the ACLU contended.17
Griswold’s reliance on the domestic trope repressed this history, in which contraception was intertwined with transgressive speech and resistance to normative gender ideologies. Doctrinally, Justice Douglas located a constitutional right to privacy in “emanations” from explicit guarantees in the Bill of Rights.18 Substantively, however, he located the privacy right in “the sacred precincts of marital bedrooms” and in a marriage bond “intimate to the degree of being sacred”: “an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”19 Distinguishing marriage from economic and political associations, Douglas pointedly distanced the decision from discredited Lochnerism, which had employed substantive due process to shield economic contracts from government regulation.20 But the invocation of a timeless bond also muted the transformative potential of the ruling for women’s roles in and outside of marriage.
More broadly, Griswold's denunciation of the fictional police invasion affirmed the Court’s ability to check state power in an era of post-New Deal regulation and diffuse governmental intrusion. As Deborah Nelson has compellingly argued, Griswold's invocations of domesticity drew on Cold War rhetoric that fashioned the idealized home as a fortress against totalitarian invasions of the private realm, a symbol of democratic liberty.21 Indeed, in his Poe dissent, Justice Douglas had endorsed a privacy right as precisely that which distinguishes a democracy from a totalitarian state.22 At the same time, however, denunciations of communism as an infiltrating virus, the
“enemy within,” prompted unprecedented governmental intrusions into private spaces—through personality testing, electronic surveillance, and FBI interviews with federal employees about their marriages.23 The tactics of Comstockery resurfaced as the Post Office tracked recipients of “physique” magazines purportedly favored by homosexuals.24 Even as boundaries between the public and the private thus grew increasingly unstable, the Court installed a fiction of inviolate space as the central trope for conceptualizing relations between individuals and the state in intimate matters of reproduction and sexuality.
That fiction persisted even as the Court increasingly equated constitutional privacy with decisional autonomy and self-determination. In the abortion cases, for example, the Court self-consciously abandoned a rhetoric of enclosure—“The pregnant woman cannot be isolated in her privacy”25—but rhetorically reinscribed spatialized privacy by declaring that “[i]t is a promise of the Constitution that there is a realm of personal liberty that the government may not enter.”26 And in striking down a law criminalizing same-sex sodomy in Lawrence v. Texas, the Court adverted to spatial privacy as well as “autonomy of self.”27
Although Lawrence characterized autonomy and spatial privacy as distinct concerns, in many ways these discourses converge. The concept of personal autonomy derives from Enlightenment individualism, with its notion of the self-contained, rational, unified subject.28 In law, as Joel Feinberg has pointed out, “personal autonomy” is at root a political metaphor, implicitly modeling the autonomous self on the independent, self-governing state, “sovereign over its own territory.”29 Susan Williams likewise notes that “the underlying dimension in the liberal model of autonomy is space (because the self is understood in terms of boundaries).”30 Thus the privacy decisions wrestle over “domains” and “zones” and even discursively construct the protected legal right as a territorial body: “Only where state regulation imposes an undue burden on a woman’s ability to make this [abortion] decision does the power of the State reach in the heart of the liberty protected by the Due Process Clause.”31 Here, the state has hands to “reach” and liberty has a “heart”;32 decisional autonomy, imagined as territorial sovereignty, is mapped over the corporeal.
The spatialization of autonomy stems in part from the bare fact of our embodiment and the way in which self-conception may be founded, in the first instance, on visual recognition of a corporeal outline. Psychoanalyst Jacques Lacan locates the genesis of identity formation in what he terms the “mirror phase.”33 As Lacan explains, the very young child, still physically uncoordinated and helpless, nevertheless recognizes its unified form in a mirror. This vision becomes a totalizing ideal, by means of which the child can conceive of itself as a self, a unique and coherent being. Thus the capacity for what legal theorists call autonomy or personhood initially derives from “the lure of spatial identification.”34
In an analogous sense, spatial fictions rendered unwritten privacy and autonomy rights legally cognizable. The American tendency to figure rights contests as boundary disputes dates back to the Federalists’ preoccupation with protecting private property' against the feared tyranny of a democratic populous.36 Mary Ann Glendon points out that the early American fixation on property' had its roots in the “myth-making” of “story-teller” John Locke who characterized property rights, beginning with ownership of one’s body, as natural, prepolitical, and absolute—virtually sacred.36 A Lockean mythology of property' defined limits on state encroachment, and a rhetoric of boundaries, enclosures, and inviolable spaces permeated American rights discourses. “Individual autonomy was conceived of as protected by a bounded sphere—defined primarily by property'— into which the state could not enter,” Jennifer Nedclsky explains.37 By' the 1960s, the New Deal and economic regulation had dislodged the property' paradigm (and its concomitant right to contract), as evidenced by Griswold"s anxious distinguishing of Lochner. Thus the challenge for the Griswold Court was to reconceive the fundamental constitutional liberty that could check government power. Privacy' furnished the abstract concept, while the physical boundaries of the marital bedroom and invocations of a right “older than the Bill of Rights”38 subtly recollected the Lockean model of rights antecedent to government.
However, insofar as discourses of autonomy imply' a boundary between public and private, metaphorically spatializing privacy rights, they foster a fiction as fully' as did Griswold’s sacred enclosure. They figure subjectivity' as isolate, ignoring the subject’s relationality. As Nedelsky' and others have argued, a dichotomy' between autonomy and collectivity' ignores how one creates oneself through relations with others, through the social matrix in which one is embedded.39 Cultural institutions are deeply' constitutive of subjectivity, not merely' forces arrayed against it. Even Lacan’s mirror stage figures the way experience of the bounded self is necessarily mediated—initially by' the external and stable image, ultimately' by' what Lacan calls the social-symbolic order, primarily' language.40
A spatialized model of bounded autonomy' also overlooks the diffuse and invisible operations of power. As Foucault has famously argued, networks of power “produce” subjects in the most fundamental sense; they' do not exert force from without, but through their constitutive effects.41 They operate through state control of everyday' practices, through the generation and circulation of signs, through structures imposed on interpersonal relations—and through discourse.42 Such power normalizes subjects, not through fear of encroachment on a private domain, but through its production of knowledge, desire, truth, and identity.
