Sunday, December 03, 2006

The Privacy Penumbra

When one thinks about any possible spatial praxes that may be associated with jurisprudence, he or she may well think of the intractable skein of laws dealing with territorial jurisdiction. However, the United States Supreme Court's decision in Griswold v. Connecticut 381 U.S. 479 (1965) contains an important tidbit that prefigures French thinker's Henri Lefebvre's famous iteration of different types of space in The Production of Space (1974) (English translation, 1991).

Justice Douglas' opinion in Griswold is one of the most-cited, and is a staple of Consitutional Law courses in American law schools. The facts are fairly well-known: in 1879, the State of Connecticut passed a law that banned contraceptives, a law that stood unchallenged for decades. Successive opinions in Poe v. Ullman (1943 and 1961), upheld the legality of the anti-contraceptive law. Later, in 1961, Estelle Griswold (above image, right), the Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a faculty member at the Yale School of Medicine wanted to test the legality of the 1879 statute and opened a birth control clinic in New Haven, Connecticut. The two were quickly arrested, prosecuted, fined, and subsequently appealed their convictions to the Supreme Court of the United States.

In a 7-2 opinion, Justice William O. Douglas declared that the Connecticut statute violated a right to marital privacy -- a right that was not explicit in the Bill of Rights to the U.S. Constitution. Justice Douglas thus writes:
[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ...Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (emphasis added)
The above quote is not only remarkable for it audacious reading of the Constitution (a reading that has been influential on generations of legal thinkers and practitioners), but also because it hints at the idea that the idea of privacy has a spatial component to it. Thus, the concurring Justices found some truth in the fact that various Constitutional guarantees of privacy have spatial consequences

This is reminiscent of Lefebvre's famous pronouncement regarding "Representational Space." In The Production of Space, Lefebvre defines representational space as:
[S]pace as directly lived through its associated images and symbols, and hence the space of 'inhabitants' and 'users' ... who describe and aspire to do no more than describe. This is the dominated -- and hence passively experienced -- space which the imagination seeks to change and appropriate. It overlays physical space, making symbolic use of its objects (1991[1974]:39).
Here is an iteration of produced space that is "alive" and that "speaks" (42). Lefebvre even echoes some of the court's pronouncements, telling us that representational space "has an affective kernel of centre: Ego, bed, bedroom, dwelling, house; or: square, church, graveyard. It embraces the loci of passion, of action and lived situations ..." (ibid.). It seems that this language is curiously evocative of Justice Douglas' penumbras and zones of privacy.

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