Hey~
I think you'll find this really really interesting, so please read and
please comment. As I describe the context of my discussion I'm going to have
to use a little bit of legalspeak, but then I have a few lovely interesting
passages that I've typed up that really animate the issue. Sorry about the
length--I think it's worth it.
Recently, the Medical University of South Carolina began a collaboration
with local police in which pregnant (black) women are tested for cocaine
abuse. The results are then reported to the police and the women are
separated from their children and arrested, often while still in their
hospital gowns. Race, gender, and class bias pervade the program, and the
MUSC's own data clearly indicates that the program has deterred women from
seeking medically necessary prenatal care. Of the 30 (?) women that have
been arrested so far, all but one have been black.
Recently, a federal appeals court (Fourth Circuit) upheld the
constitutionality of the program in the context of the special-needs
exception to the warrant requirement of the Fourth Amendment. As I
understand it, this exception has never actually been applied in cases where
actual arrests are being made.
The Supreme Court is due to make a ruling on Ferguson v. City of
Charleston before the current session ends, and the majority of the justices
will probably upheld the reasoning made by the Fourth Circuit majority.
It is clear that the expected outcome will give a green light to local
jurisdictions around America. What's as, if not more important, however, are
the long-term legal implications of an extension of the special-needs
exception to areas of normal law enforcement. Basically, if the government
can use a "special-needs" argument to circumvent the Fourth Amendment's
warrant requirement, the Fourth Amendment basically becomes a balancing test
between public and individual interest. In other words, the Fourth Amendment
becomes a dead letter. If the government has a reason to fuck with you, then
it's legal.
Here I think it is useful to remember Justice Brandeis's 1928 ruling in
Olmstead v. United States:
"It is immaterial that the intrusion was in aid of law enforcement.
Experience should teach us to be most on our guard to protect liberty when
the Government's purposes are beneficent. Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding."
However, it seems that Justice Brandeis's (and the critics of the MUSC
program's) analysis itself has some bio-political overtones. Allow me to
direct your attention to Graham Burchell's essay in "The Foucault Effect":
(All of the emphasis is my own)
"Foucault's analysis of liberalism brings into focus the kind of rational
principles which have informed the shaping of an essential element of modern
politics which is characterized by an oscillation between a suspicious fear
and criticism of the state's impertinent interventions in detailed aspects
of our lives [i.e. the MUSC cocaine program], AND an expectation that the
government will, and/or a demand that it should, respect our [Fourth
Amendment] rights while taking responsibility for improvements in the
conditions and quality of our individual lives, for sheltering us from
insecurities and dangers, for providing the conditions and opportunities for
individual advancement, for meeting our individual health needs [the fear
that the MUSC program deters women from prenatal care], for protecting the
local community and natural environment in which we live, and so on. In
other words, our relation to political power has been shaped by what
Foucault calls the 'governmentalization' of the state. That is to say, it is
in the name of forms of existence which have been shaped by political
technologies of government that we, as individuals and groups, make claims
on OR against the state. It is in the name of our governed existence as
individual living beings, in the name of our health, of the development of
our capabilities, of our ethnicity [blacks], of our gender [women], of our
forms of insertion into social and economic life, of our age, of our
environment, of particular risks [medical] we may face and so on, that we
BOTH REVILE AND INVOKE the power of the state" (144-45).
How can we resolve this? The MUSC's program is clearly an example of a very
hideous example of bio-power, and yet criticisms of this program often seem
to affirm the very things (public health, for example) that were the initial
justification of the MUSC program! In terms of discursive practice, Jeb
Rubenfeld offers an interesting alternative in his 1989 article in Harvard
Law Review. Here, he criticizes what he calls the "personhood" defense of
privacy protections, which he attributes to Freudian notions of repressed
aspects of our identities. The personhood thesis claims that privacy from
government intrusion is meant to protect some inviolate aspect of our
humanity:
"A salient feature of these practices of invidious sexual identification
is that they are often conducted in the name of helping the group at issue.
Yet it is the very act of "helping" that creates the group at issue as the
group at issue. Thus, in Foucault's description, the decision to give
medical treatment to homosexuals, which became institutionalized medical
practice in the nineteenth century, in fact created the "disease" of
homosexuality. It generated a division between homosexuals and
heterosexuals that had never been absolute before, and at the same time
created new institutional practices through which individuals would more and
more sharply identify themselves, be identified, and be processed as
homosexuals. <=174> n173
A new and fundamental conceptual difficulty now arises for the personhood
account of privacy rights. Personhood may reproduce the very evil that it
purports to resist."
He continues...
"We must reject the personhood thesis, then, not because the concept of
"self-definition" is analytically incoherent, nor because it is too
"individualistic," but ultimately because it betrays privacy's -- if not
personhood's own -- political aspirations. By conceiving of the conduct
that it purports to protect as "essential to the individual's identity,"
personhood inadvertently reintroduces into privacy analysis the very premise
of the individious uses of state power it seeks to overcome.
Perhaps the example of abortion can best serve to drive this point home.
Personhood must defend the right to abortion on the ground that abortion is
essential to the woman's self-definition. But underlying the idea that a
woman is defining her identity by determining not to have a child is the
very premise of those institutionalized sexual roles through which the
subordination of women has for so long been maintained. Only if it were
"natural" for a woman to want to bear children -- and unnatural if she did
not -- would it make sense to insist that the decision not to have a child
at one given moment was centrally definitive of a woman's identity. Those
of us who believe that a woman has a right to abort her pregnancy must
defend the position on other grounds. The claim that an abortion is a
fundamental act of self-definition is nothing other than a corollary to the
insistence that motherhood, or at least the desire to be a mother, is the
fundamental, inescapable, natural backdrop of womanhood against which every
woman is defined.
Women should be able to abort their pregnancies so that they may avoid
being forced into an identity, not because they are defining their
identities through the decision itself. Resisting an enforced identity is
not the same as defining oneself. Therein lies the real flaw of the
personhood account of privacy -- and therein the core of the alternative
view of privacy advanced in what follows."
He continues...
"Hardwick [the Supreme Court decision upholding state sodomy laws] has
exposed deep flaws in the prevailing jurisprudence and ideology of privacy.
The constitutional ground has shifted; perhaps it is dissolving altogether.
The changing membership of the High Court raises the possibility of a
wholesale reconsideration of the privacy doctrine's propriety. Yet even
when the doctrine was first ascendant, the Court never hazarded a definitive
statement of what it was supposed to protect. At the heart of the right to
privacy, there has always been a conceptual vacuum.
The reason for this, I will try to show, is that the operative analysis
in privacy cases has invariably missed the real point. Past privacy
analysis has taken the act proscribed by the law at issue -- for example,
abortion, interracial marriage, or homosexual sex -- and asked whether there
is a "fundamental right" to perform it. n7 But the fundament of the right to
privacy is not to be found in the supposed fundamentality of what the law
proscribes. It is to be found in what the law imposes. The question, for
example, of whether the state should be permitted to compel an individual to
have a child -- with all the pervasive, far-reaching, lifelong consequences
that child-bearing [*740] ordinarily entails -- need not be the same as
the question of whether abortion or even child-bearing itself is a
"fundamental" act within some normative framework. The distinguishing
feature of the laws struck down by the privacy cases has been their profound
capacity to direct and to occupy individuals' lives through their
affirmative consequences. This affirmative power in the law, lying just
below its interdictive surface, must be privacy's focal point."
Perhaps Rubenfeld's alternative for discursive practice can be compared
to Deleuze's account of resistance, which interestly enough uses the same
example (abortion):
"But when power in this way takes life as its aim or object, then
resistance to power already puts itself on the side of life, and turns life
against power: 'life as a political object was in a sense taken at face
value and turned back against the system that was bent on controlling it.'
Contrary to a fully established discourse, there is no need to uphold
man in order to resist. What resistance extracts from this revered old man,
as Nietzsche put it, is the forces of a life that is larger, more active,
more affirmative and richer in possibilities. The superman has never meant
anything but that: it is in man himself that we must liberate life, since
man himself is a form of imprisonmant for man. Life becomes resistance to
power when power takes life as its object. Here again, the two operations
belong to the same horizon (we can see this clearly in the question of
abortion, when the most reactionary powers invoke a 'right to live.') When
power becomes bio-power resistance becomes the power of life, a vital power
that cannot be confined within species, environmentor the paths of a
particular diagram. Is not the force that comes from outside a certain idea
of Life, a certain vitalism, in which Foucault's thought culminates? Is not
life this capacity to resist force? From The Birth of the Clinic on,
Foucault admired Bichat for having invented a new vitalism by defining life
as the set of those functions which resist death. And for Foucault as much
as for Nietzsche, it is in man himself that we must look for the set of
forces and functions which resist the death of man. Spinoza said that there
was no telling what the human body might achieve, once freed from human
discipline. To which Foucault replies that there is no telling what man
might achievce 'as a living being', as the set of forces that resist"
(Foucault, 92-93).
Nice, eh? I'm still trying to decide how I would ultimately situate Foucault
in this whole mess.
~Nate
--
"Thought is no longer theoretical. As soon as it functions it
offends or reconciles, attracts or repels, breaks, dissociates,
unites, or re-unites; it cannot help but liberate and enslave.
Even before prescribing, suggesting a future, saying what must
be done, even before exhorting or merely sounding an alarm,
thought, at the level of its existence, in its very dawning, is
in itself an action--a perilous act."
-Michel Foucault
I think you'll find this really really interesting, so please read and
please comment. As I describe the context of my discussion I'm going to have
to use a little bit of legalspeak, but then I have a few lovely interesting
passages that I've typed up that really animate the issue. Sorry about the
length--I think it's worth it.
Recently, the Medical University of South Carolina began a collaboration
with local police in which pregnant (black) women are tested for cocaine
abuse. The results are then reported to the police and the women are
separated from their children and arrested, often while still in their
hospital gowns. Race, gender, and class bias pervade the program, and the
MUSC's own data clearly indicates that the program has deterred women from
seeking medically necessary prenatal care. Of the 30 (?) women that have
been arrested so far, all but one have been black.
Recently, a federal appeals court (Fourth Circuit) upheld the
constitutionality of the program in the context of the special-needs
exception to the warrant requirement of the Fourth Amendment. As I
understand it, this exception has never actually been applied in cases where
actual arrests are being made.
The Supreme Court is due to make a ruling on Ferguson v. City of
Charleston before the current session ends, and the majority of the justices
will probably upheld the reasoning made by the Fourth Circuit majority.
It is clear that the expected outcome will give a green light to local
jurisdictions around America. What's as, if not more important, however, are
the long-term legal implications of an extension of the special-needs
exception to areas of normal law enforcement. Basically, if the government
can use a "special-needs" argument to circumvent the Fourth Amendment's
warrant requirement, the Fourth Amendment basically becomes a balancing test
between public and individual interest. In other words, the Fourth Amendment
becomes a dead letter. If the government has a reason to fuck with you, then
it's legal.
Here I think it is useful to remember Justice Brandeis's 1928 ruling in
Olmstead v. United States:
"It is immaterial that the intrusion was in aid of law enforcement.
Experience should teach us to be most on our guard to protect liberty when
the Government's purposes are beneficent. Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding."
However, it seems that Justice Brandeis's (and the critics of the MUSC
program's) analysis itself has some bio-political overtones. Allow me to
direct your attention to Graham Burchell's essay in "The Foucault Effect":
(All of the emphasis is my own)
"Foucault's analysis of liberalism brings into focus the kind of rational
principles which have informed the shaping of an essential element of modern
politics which is characterized by an oscillation between a suspicious fear
and criticism of the state's impertinent interventions in detailed aspects
of our lives [i.e. the MUSC cocaine program], AND an expectation that the
government will, and/or a demand that it should, respect our [Fourth
Amendment] rights while taking responsibility for improvements in the
conditions and quality of our individual lives, for sheltering us from
insecurities and dangers, for providing the conditions and opportunities for
individual advancement, for meeting our individual health needs [the fear
that the MUSC program deters women from prenatal care], for protecting the
local community and natural environment in which we live, and so on. In
other words, our relation to political power has been shaped by what
Foucault calls the 'governmentalization' of the state. That is to say, it is
in the name of forms of existence which have been shaped by political
technologies of government that we, as individuals and groups, make claims
on OR against the state. It is in the name of our governed existence as
individual living beings, in the name of our health, of the development of
our capabilities, of our ethnicity [blacks], of our gender [women], of our
forms of insertion into social and economic life, of our age, of our
environment, of particular risks [medical] we may face and so on, that we
BOTH REVILE AND INVOKE the power of the state" (144-45).
How can we resolve this? The MUSC's program is clearly an example of a very
hideous example of bio-power, and yet criticisms of this program often seem
to affirm the very things (public health, for example) that were the initial
justification of the MUSC program! In terms of discursive practice, Jeb
Rubenfeld offers an interesting alternative in his 1989 article in Harvard
Law Review. Here, he criticizes what he calls the "personhood" defense of
privacy protections, which he attributes to Freudian notions of repressed
aspects of our identities. The personhood thesis claims that privacy from
government intrusion is meant to protect some inviolate aspect of our
humanity:
"A salient feature of these practices of invidious sexual identification
is that they are often conducted in the name of helping the group at issue.
Yet it is the very act of "helping" that creates the group at issue as the
group at issue. Thus, in Foucault's description, the decision to give
medical treatment to homosexuals, which became institutionalized medical
practice in the nineteenth century, in fact created the "disease" of
homosexuality. It generated a division between homosexuals and
heterosexuals that had never been absolute before, and at the same time
created new institutional practices through which individuals would more and
more sharply identify themselves, be identified, and be processed as
homosexuals. <=174> n173
A new and fundamental conceptual difficulty now arises for the personhood
account of privacy rights. Personhood may reproduce the very evil that it
purports to resist."
He continues...
"We must reject the personhood thesis, then, not because the concept of
"self-definition" is analytically incoherent, nor because it is too
"individualistic," but ultimately because it betrays privacy's -- if not
personhood's own -- political aspirations. By conceiving of the conduct
that it purports to protect as "essential to the individual's identity,"
personhood inadvertently reintroduces into privacy analysis the very premise
of the individious uses of state power it seeks to overcome.
Perhaps the example of abortion can best serve to drive this point home.
Personhood must defend the right to abortion on the ground that abortion is
essential to the woman's self-definition. But underlying the idea that a
woman is defining her identity by determining not to have a child is the
very premise of those institutionalized sexual roles through which the
subordination of women has for so long been maintained. Only if it were
"natural" for a woman to want to bear children -- and unnatural if she did
not -- would it make sense to insist that the decision not to have a child
at one given moment was centrally definitive of a woman's identity. Those
of us who believe that a woman has a right to abort her pregnancy must
defend the position on other grounds. The claim that an abortion is a
fundamental act of self-definition is nothing other than a corollary to the
insistence that motherhood, or at least the desire to be a mother, is the
fundamental, inescapable, natural backdrop of womanhood against which every
woman is defined.
Women should be able to abort their pregnancies so that they may avoid
being forced into an identity, not because they are defining their
identities through the decision itself. Resisting an enforced identity is
not the same as defining oneself. Therein lies the real flaw of the
personhood account of privacy -- and therein the core of the alternative
view of privacy advanced in what follows."
He continues...
"Hardwick [the Supreme Court decision upholding state sodomy laws] has
exposed deep flaws in the prevailing jurisprudence and ideology of privacy.
The constitutional ground has shifted; perhaps it is dissolving altogether.
The changing membership of the High Court raises the possibility of a
wholesale reconsideration of the privacy doctrine's propriety. Yet even
when the doctrine was first ascendant, the Court never hazarded a definitive
statement of what it was supposed to protect. At the heart of the right to
privacy, there has always been a conceptual vacuum.
The reason for this, I will try to show, is that the operative analysis
in privacy cases has invariably missed the real point. Past privacy
analysis has taken the act proscribed by the law at issue -- for example,
abortion, interracial marriage, or homosexual sex -- and asked whether there
is a "fundamental right" to perform it. n7 But the fundament of the right to
privacy is not to be found in the supposed fundamentality of what the law
proscribes. It is to be found in what the law imposes. The question, for
example, of whether the state should be permitted to compel an individual to
have a child -- with all the pervasive, far-reaching, lifelong consequences
that child-bearing [*740] ordinarily entails -- need not be the same as
the question of whether abortion or even child-bearing itself is a
"fundamental" act within some normative framework. The distinguishing
feature of the laws struck down by the privacy cases has been their profound
capacity to direct and to occupy individuals' lives through their
affirmative consequences. This affirmative power in the law, lying just
below its interdictive surface, must be privacy's focal point."
Perhaps Rubenfeld's alternative for discursive practice can be compared
to Deleuze's account of resistance, which interestly enough uses the same
example (abortion):
"But when power in this way takes life as its aim or object, then
resistance to power already puts itself on the side of life, and turns life
against power: 'life as a political object was in a sense taken at face
value and turned back against the system that was bent on controlling it.'
Contrary to a fully established discourse, there is no need to uphold
man in order to resist. What resistance extracts from this revered old man,
as Nietzsche put it, is the forces of a life that is larger, more active,
more affirmative and richer in possibilities. The superman has never meant
anything but that: it is in man himself that we must liberate life, since
man himself is a form of imprisonmant for man. Life becomes resistance to
power when power takes life as its object. Here again, the two operations
belong to the same horizon (we can see this clearly in the question of
abortion, when the most reactionary powers invoke a 'right to live.') When
power becomes bio-power resistance becomes the power of life, a vital power
that cannot be confined within species, environmentor the paths of a
particular diagram. Is not the force that comes from outside a certain idea
of Life, a certain vitalism, in which Foucault's thought culminates? Is not
life this capacity to resist force? From The Birth of the Clinic on,
Foucault admired Bichat for having invented a new vitalism by defining life
as the set of those functions which resist death. And for Foucault as much
as for Nietzsche, it is in man himself that we must look for the set of
forces and functions which resist the death of man. Spinoza said that there
was no telling what the human body might achieve, once freed from human
discipline. To which Foucault replies that there is no telling what man
might achievce 'as a living being', as the set of forces that resist"
(Foucault, 92-93).
Nice, eh? I'm still trying to decide how I would ultimately situate Foucault
in this whole mess.
~Nate
--
"Thought is no longer theoretical. As soon as it functions it
offends or reconciles, attracts or repels, breaks, dissociates,
unites, or re-unites; it cannot help but liberate and enslave.
Even before prescribing, suggesting a future, saying what must
be done, even before exhorting or merely sounding an alarm,
thought, at the level of its existence, in its very dawning, is
in itself an action--a perilous act."
-Michel Foucault