Griswold v. Connecticut
381 U.S. 479 (1965), argued 29 Mar. 1965, decided 7 June 1965, by vote of 7 to 2; Douglas for the Court, Goldberg, Harlan, and White concurring, black and Stewart in dissent. Griswold is a curious but important case in American constitutional history. It concerned an “uncommonly silly law” (as Justice Potter Stewart called it) that was technically difficult to challenge on constitutional grounds, as evidenced by the divergent positions of the justices concurring with the majority position. These opinions not only made Griswold one of the most significant decisions of the 1965 term but fueled controversies both about the general character of constitutional lawmaking and about specific rights that have continued decades later.
Evolution of the Dispute
A Connecticut statue of 1879 made it a crime for any person to use any drug, article, or instrument to prevent conception. This statute had been challenged twice before, in 1943 (Tileston v. Ullman), where the Supreme Court held that the plaintiff lacked standing, and in 1961 (Poe v. Ullman), where the Court determined that the controversy was not ripe because the plaintiff had not been prosecuted (see Ripeness and Immediacy).
By 1965, however, the Court determined to resolve the constitutionality of the statute. Suit was initiated by two members of the Planned Parenthood League of Connecticut. Its executive director and medical director had been convicted of violating the statute by giving information, instruction, and medical advice to married persons regarding means of preventing conception (see Contraception). The conviction was affirmed by the Supreme Court of Errors of Connecticut.
On appeal, the United States Supreme Court reversed by a 7‐to‐2 margin. The majority determined that: (1) the appellants had standing to raise the constitutional rights of people with whom they had a professional relationship; and (2) the statute was invalid because it infringed on the constitutionally protected right to “privacy” of married persons.
Implied Rights: The New Substantive Due Process?
The majority holding in Griswold to a large extent was positioned within post‐1937 constitutional theory. It protected basic constitutional rights and applied them against the states in conventional fashion under the Fourteenth Amendment, and it mandated a stricter scrutiny for laws that interfere with “fundamental personal rights” than for those that regulate economic relations (see Due Process, Substantive). The Court's more controversial step of applying this logic to fundamental rights—here, of privacy—not expressly enumerated in the Bill of Rights likewise was hardly unprecedented. The Court previously had affirmed the unwritten rights to teach one's child a foreign language (Meyer v. Nebraska, 1923), to send one's children to private schools (Pierce v. Society of Sisters, 1925), to procreate (Skinner v. Oklahoma, 1942), to resist certain invasions of the body (Rochin v. California, 1952), and to travel abroad (Aptheker v. Secretary of State, 1964). What made Griswold a landmark case was the Court's willingness to explicitly justify at length this practice of investing such unenumerated rights with full constitutional status.
It is on this point that the justices were most divided. Indeed, four different lines of justification in defense of unenumerated fundamental rights were outlined by supporters of the majority decision. Justice William O. Douglas, writing for five members of the Court, referred to rights that are implicit in, or peripheral to, other express guarantees in the Bill of Rights. In his famous words, “specific guarantees … have penumbras, formed by emanations from those guarantees that help give them life and substance” (p. 484). Just as the Court earlier had found that First Amendment rights to freedom of speech implied a peripheral “right to freedom of association,” he reasoned, so do the First, Third, Fourth, Fifth, and Ninth Amendments imply “zones of privacy” that form the basis for the general privacy right affirmed in this case.
Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, staked out a more expansive approach to justifying the right of privacy. Although he found merit in the penumbra and emanations argument of Douglas, Goldberg argued further that “liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights.” The Fourteenth Amendment may not incorporate all of the first eight amendments, Goldberg acknowledged. However, the specific “language and history of the Ninth Amendment” provide strong support for judicial incorporation of additional rights “so rooted in the traditions and conscience of our people as to be ranked fundamental” in our constitutional legacy (p. 487).
Justices John M. Harlan and Byron White advanced positions that, by contrast, severed altogether the link between the Fourteenth Amendment and the Bill of Rights. Harlan rejected the incorporation doctrine as a historically groundless and ineffective check on judicial discretion, while reproaching the “letter or penumbra” logic of Douglas as overly restrictive of future rights development. Instead, he affirmed a commitment to due process and liberty that “stands … on its own bottom,” constrained only by the forces of history and cultural values that bind the court. By this logic, the Connecticut statute violated basic values “implicit in the concept of ordered liberty” (p. 500). Justice White rooted his argument in a similarly expansive interpretation of Fourteenth Amendment due process guarantees but focused his attention on the terms of strict scrutiny by which the Court should balance fundamental rights of individuals with compelling state interests in such cases.
The dissents by Justices Hugo Black and Potter Stewart expressed the same disdain for the Connecticut statute as had the majority. However, both denied that the state law infringed upon any fundamental constitutional right. In their view, such a right—whether rooted in the “implied rights” theories of Douglas and Goldberg or, in the “natural justice” positions of Harlan and White—lacked specific constitutional authorization and represented an arbitrary exercise of judicial power that threatened the American system of government (see Judicial Self‐Restraint). “Use of any such broad, unbounded judicial authority would make of this Court's members a day‐to‐day constitutional convention,” argued Black. This would amount to a “great unconstitutional shift of power to the courts which … will be bad for the courts and worse for the country” (p. 520).
Scholarly debate has amplified these disagreements among members of the Court. In particular, many critics of the decision have elaborated Black's charge that the majority was simply offering a new and unwarranted version of the old “substantive due process” doctrine. Why, critics asked, is it less dangerous for Supreme Court justices to impose their personal preferences on legislators and society in matters of personal rights than in matters of economic relations? If the old Lochner logic was wrong, why is this new form of “Lochnerizing” not wrong as well? Moreover, are judges any more qualified to determine one form of rights than another? And is the legitimacy of a “government of laws” no less undermined by unrestrained, arbitrary judicial policy making in one sphere than in another?
Defenders of the majority have ranged even more widely in their arguments than did the justices. Some supporters have emphasized the decision's solid groundings in past judicial practice, theoretical logic, and constitutional text. Indeed, both Douglas and Goldberg explicitly declined the invitation to follow in the substantive due process tradition. “We do not sit as a super‐legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions,” wrote Douglas. The law in question, by contrast, “operates directly on an intimate relation of husband an wife” that long has received constitutional protection (p. 482).
Other supporters of the majority instead have affirmed Justices Harlan and White's unabashed rejection of formalist illusions about textual constraints upon judicial action. They argue that legal interpretation is always discretionary, and that textual constraints on judges are far less important than cultural and political forces. Moreover, many scholars have defended the Court's zealous defense of personal rights as both within its institutional capacities and functionally necessary to maintaining liberty in our modern corporate society. Such arguments were sufficiently compelling that all nine justices, including Stewart, by 1973 had accepted the Court's role in giving the Fourteenth Amendment's Due Process Clause a substantive content that exceeds the Bill of Rights, although considerable differences remained about how and when that authority should be exercised.
Privacy Rights: Subsequent Case Law and Theoretical Disputes
Controversies over the constitutional grounding of unenumerated rights have been paralleled by controversies over the range of practices and relations that such rights protect. Indeed, the majority in Griswold was far more expansive about legal justifications for a right of privacy than about its theoretical content and reach. And while the Court recognized that commitments to privacy have deep roots in American society and its laws, that legacy has provided a vague guide for determining the substantive scope of privacy rights in modern social relations. Not surprisingly, questions regarding conceptual coherence have continued to surround the doctrine.
Critics query whether the logic of “privacy” extends to all social relations—including the sale of contraceptives to unmarried individuals (Carey v. Population Services International, 1977), relations among *homosexuals (Bowers v. Hardwick, 1986), and women's choices regarding abortion (Roe v. Wade, 1973). For example, is it really privacy that is most infringed by regulations restricting the sale and distribution of contraceptives? Do regulations of sales concern privacy more than those on solicitation, which was treated primarily as matter of free speech in Bolger v. Youngs Drug Product Corp. (1983).
Moreover, the privacy doctrine has been increasingly attacked from both ends of the political spectrum. On the one hand, the doctrine as applied to abortion since Roe has continued to provoke the outrage of conservatives over both the expansion of judicial authority and its resulting protections for allegedly immoral individual actions. Ironically, conservatives have rejected the privacy doctrine because it limits state intervention into the lives of citizens.
On the other hand, the privacy doctrine has been assailed from the political left for advancing a far too truncated and archaic liberal understanding of freedom. Critics on the left condemn the Griswold decision for limiting the privacy protection for contraception use to persons bound in conventional marriage relations. This shield for contraception use was extended a few years later to unmarried persons in Eisenstadt v. Baird (1972), but the Court's repeated denial of protection for homosexual relationships has revealed privacy limits as a challenge to traditional norms regarding sexuality (Bowers). Moreover, while the privacy logic has been useful to limit at least some unwanted state intervention in intimate sexual matters, it has also been employed to preclude a positive state role in educating citizens and providing funding essential for the exercise of rights to use birth control and receive an abortion. Some critics thus argue for the need to replace the privacy logic with a more affirmative conception of autonomy rights that is more consistent with the goals of equality and empowerment.
Legacy
The legacy of the privacy rights doctrine thus points to the perennial problem of Court efforts to deal with changing social needs, values, and interests though invocation of traditional norms long supportive of quite different relationships. The right of privacy affirmed in Griswold still stands, but clearly is jeopardized by increasingly restrictive Court rulings on protections for abortion, its most important doctrinal application.
Bibliography
- Rhonda Copelon,
Beyond the Liberal Idea of Privacy: Toward A Positive Right of Autonomy , in Judging the Constitution: Critical Essays on Judicial Lawmaking, edited by Michael W. McCann and Gerald L. Houseman (1989), pp. 287–316. - Allan Dionisopolous and Craig Ducat, eds.,
The Right to Privacy: Essays and Cases (1976). - Louis Henken, Privacy and Autonomy,
Columbia Law Review 74 (1974): 1410–1433. - Symposium on the Griswold Case and the Right of Privacy,
Michigan Law Review 64 (1965): 197–282
— Michael W. McCann
