Perhaps the construction of such a genetic panopticon is wise.

Those are Justice Antonin Scalia’s words, taken from Monday’s eye-opening dissent in Maryland v. King. The Court, by a vote of five to four, upheld a Maryland law that authorizes the collection of DNA from individuals arrested for “serious” offenses.  In his dissent, Justice Scalia (joined by Justices Ginsburg, Sotomayor, and Kagan) took strong exception to the majority’s approval of a suspicionless search without any justifying motive.

But what of the word “panopticon”?  Pano what?  Well, let us start with how to say the word – pan•op•ti•con.  All right, that helps. Now, what of its etymology?

Pan comes from the Greek, referring to “all.”  And optic also comes from the Greek (optikos), referring to the faculty of sight. Put them together and you have: seeing all or viewing everything. And now for the Oxford English Dictionary definition: “a combined telescope and microscope.”  Under such a lens, the government (Justice Scalia warns us) could view all traces of our genetic tracks.

Jeremy Bentham, via Wikimedia Commons

There is yet more to the word study to which Justice Scalia (ever the master of words) invites our attention.  There is the historical use of the word (which should not be confused with historical intent!).  Back in 1791, Jeremy Bentham published a work entitled A Plan of Management for a Panopticon Penitentiary House.  The basic idea of this Argus-inspired plan was to design a prison by which a guard could watch all inmates at all times with limited reciprocal vision by the prisoners.  If that were the case, then the number of watchmen could be reduced. Better still, the guard’s work shift could also be reduced because, here again, the inmates might not always know if they were or were not being watched.  Efficient?  Sure. Pure Bentham! But as fate had it, for economic, bureaucratic and political reasons his panopticon prison never materialized in his lifetime.

All was not lost, however.  For in 1978 the French philosopher Michel Foucault revived interest in the panopticon idea with the latter’s publication of Discipline and Punish: The Birth of the Prison. That in turn prompted a set of commentaries on the panoptic principle.  See David Lyon, Theorizing Surveillance: the Panopticon and Beyond (2006). And then last year, long after Foucault’s “death” (a deconstructionist kind of pun), Anne Brunon-Ernst edited a collection of essays titled Beyond Foucault: New Perspectives on Bentham’s Panopticon. (If you think reading Supreme Court opinions is demanding, try reading these perplexing postmodernists.)

One more thing to add to our conceptual treasure trove: It is reported that Sony will soon release a video game built around a sci-fi motif of “a cel-shaded world of robotic dragons, futuristic London, and branded humans with identification numbers.” The name of the game? – Panopticon.  (Though the game is not “choate,” I would never use either that phrase or that the term in Justice Scalia’s presence.)

Call it “trademark” Scalia, as Joan Biskupic  has, or “crackling language,” as  Erin McClam has, but it all comes down to how you see things.  And that is precisely the point Justice Scalia wants us to perceive when we consider how the government views our genetic identities.

Posted in Maryland v. King, Analysis, Merits Cases

Recommended Citation: Ron Collins, “Panopticon”? – Keep your eyes on the word!, SCOTUSblog (Jun. 5, 2013, 11:26 AM), http://www.scotusblog.com/2013/06/panopticon-keep-your-eyes-on-the-word/