Griswold v. Connecticut: Background

1. How is Lochner v. New York (1905) used by Justices Douglas and Black in Griswold v. Connecticut?
2. How does the majority opinion reach its result? What is a penumbra? Since the Court had applied most guarantees of the Bill of Rights to the states at the time of Griswold, presumably the penumbras of these rights would apply as well. However, incorporation of the 3rd Amendment, cited by Justice Douglas, has yet to be considered by the Court.
3. Why doesn’t Justice Douglas simply base his opinion on the word “liberty” in the Due Process Clause of the 14th Amendment? Does the word “liberty” appear in the opinion? Why or why not? How does Justice Douglas treat the Meyer v. Nebraska (1923) decision — i.e., what constitutional text does he imply it is expounding? Is he re-interpreting the meaning of this precedent?
4. What do you think of the argument based on the 9th Amendment in Justice Goldberg’s opinion? Does the logic of the dissent allow the state to limit families to one child, or to none, as Justice Goldberg suggests?

5          Why do Justices Harlan and White concur only in the judgment? How do their approaches differ from the others?

Griswold v. Connecticut

381 U.S. 479 (1965)

[Majority: Douglas, Goldberg, Warren (C.J.), Clark, and Brennan. Concurring: Goldberg, Harlan, and White. Dissenting: Black and Stewart.]

Mr. Justice Douglas delivered the opinion of the Court.

Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven — a center open and operating from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-196 of the General Statutes of Connecticut. The former provides:

Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.

Section 54-196 provides:

Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.

The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the 14th Amendment. The Appellate [courts] affirmed. . . .

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the 14th Amendment. Overtones of some arguments suggest that Lochner v. New York (1905) should be our guide. But we decline that invitation as we did in [among others] West Coast Hotel Co. v. Parrish (1937); Williamson v. Lee Optical Co. (1955). 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. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the 1st Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters (1925), the right to educate one’s children as one chooses is made applicable to the States by the force of the 1st and 14th Amendments. By Meyer v. Nebraska (1923), the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the 1st Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. City of Struthers (1943)) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff (1952)) — indeed the freedom of the entire university community. Sweezy v. New Hampshire (1957). Without those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

In NAACP v. Alabama (1958) we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral 1st Amendment right. . . . In other words, the 1st Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button (1963). . . .

[W]hile [the freedom to associate] is not expressly included in the 1st Amendment its existence is necessary in making the express guarantees fully meaningful.

The foregoing cases suggest that specific 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 1st Amendment is one, as we have seen. The 3rd 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 4th Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The 5th 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.”

The 4th and 5th Amendments were described in Boyd v. United States (1886), as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred in Mapp v. Ohio (1961), to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”

We have had many controversies over these penumbral rights of “privacy and repose.” See Skinner v. Oklahoma (1942). These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is 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. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Reversed.

Mr. Justice Goldberg, whom The Chief Justice and Mr. Justice Brennan join, concurring.

I agree with the Court that Connecticut’s birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that “due process” as used in the 14th Amendment includes all of the first eight Amendments, I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution[1] is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment. . . . I add these words to emphasize the relevance of that Amendment to the Court’s holding. . . .

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement. . . .

The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” . . . It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected. . . .

While this Court has had little occasion to interpret the 9th Amendment,[2] “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison (1803). In interpreting the Constitution, “real effect should be given to all the words it uses.” The 9th Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the 9th Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the 9th Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people” (emphasis added). . . .

I do not mean to imply that the 9th Amendment is applied against the States by the 14th. Nor do I mean to state that the 9th Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the 9th Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. . . .

While the 9th Amendment — and indeed the entire Bill of Rights — originally concerned restrictions upon federal power, the subsequently enacted 14th Amendment prohibits the States as well from abridging fundamental personal liberties. . . . In sum, the 9th Amendment simply lends strong support to the view that the “liberty” protected by the 5th and 14th Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. . . .

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so. Rather, as the 9th Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution. . . .

The logic of the dissents would sanction federal or state legislation that seems to me even more plainly unconstitutional than the statute before us. Surely the Government, absent a showing of a compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them. Yet by their reasoning such an invasion of marital privacy would not be subject to constitutional challenge because, while it might be “silly,” no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family. . . . [I]f upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude upon rights of marital privacy which are constitutionally protected.

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. . . .

The State, at most, argues that there is some rational relation between this statute and what is admittedly a legitimate subject of state concern — the discouraging of extra-marital relations. It says that preventing the use of birth-control devices by married persons helps prevent the indulgence by some in such extra-marital relations. The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception. But, in any event, it is clear that the state interest in safeguarding marital fidelity can be served by a more discriminately tailored statute, which does not, like the present one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples. . . .

In sum, I believe that the right of privacy in the marital relation is fundamental and basic — a personal right “retained by the people” within the meaning of the 9th Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the 14th Amendment from infringement by the States. I agree with the Court that petitioners’ convictions must therefore be reversed.

Mr. Justice Harlan, concurring in the judgment.

I fully agree with the judgment of reversal, but find myself unable to join the Court’s opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers Black and Stewart in dissent, namely: the Due Process Clause of the 14th Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.

In other words, what I find implicit in the Court’s opinion is that the “incorporation” doctrine may be used to restrict the reach of 14th Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the “incorporation” approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. . . .

[T]he proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the 14th Amendment because the enactment violates basic values “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937). For reasons stated at length in my dissenting opinion in Poe v. Ullman (1961), I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the 14th Amendment stands, in my opinion, on its own bottom. . . .

Mr. Justice White, concurring in the judgment.

In my view this Connecticut law as applied to married couples deprives them of “liberty” without due process of law, as that concept is used in the 14th Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut’s aiding and abetting statute. . . .

There is no serious contention that Connecticut thinks the use of artificial or external methods of contraception immoral or unwise in itself, or that the anti-use statute is founded upon any policy of promoting population expansion. Rather, the statute is said to serve the State’s policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal. . . .

I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State’s ban on illicit sexual relationships. . . .

At most the broad ban is of marginal utility to the declared objective. A statute limiting its prohibition on use to persons engaging in the prohibited relationship would serve the end posited by Connecticut in the same way, and with the same effectiveness, or ineffectiveness, as the broad anti-use statute under attack in this case. I find nothing in this record justifying the sweeping scope of this statute. . . .

Mr. Justice Black, with whom Mr. Justice Stewart joins, dissenting.

I agree with my Brother Stewart’s dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. . . .

The Court talks about a constitutional “right of privacy” as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the “privacy” of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the 4th Amendment’s guarantee against “unreasonable searches and seizures.” But I think it belittles that Amendment to talk about it as though it protects nothing but “privacy.” . . .

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the 4th Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. . . .[3] I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. . . .

This brings me to the arguments made by my Brothers Harlan, White and Goldberg. . . . I discuss the due process and 9th Amendment arguments together because on analysis they turn out to be the same thing — merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act . . . it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court’s belief that a particular state law under scrutiny has no “rational or justifying” purpose, or is offensive to a “sense of fairness and justice.” If these formulas based on “natural justice” . . . are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. . . . I do not believe that we are granted . . . the power to make laws . . . a power which was specifically denied to federal courts by the convention that framed the Constitution.

Of the cases on which my Brothers White and Goldberg rely so heavily, undoubtedly the reasoning of two of them supports their result here . . . Meyer v. Nebraska (1923) [and] Pierce v. Society of Sisters (1925). Meyer held unconstitutional, as an “arbitrary” and unreasonable interference with the right of a teacher to carry on his occupation and of parents to hire him, a state law forbidding the teaching of modern foreign languages to young children in the schools.[4] And in Pierce, relying principally on Meyer, Mr. Justice McReynolds said that a state law requiring that all children attend public schools interfered unconstitutionally with the property rights of private school corporations because it was an “arbitrary, unreasonable, and unlawful interference” which threatened “destruction of their business and property.” Without expressing an opinion as to whether either of those cases reached a correct result in light of our later decisions applying the 1st Amendment to the States through the 14th, I merely point out that the reasoning stated in Meyer and Pierce was the same natural law due process philosophy which many later opinions repudiated, and which I cannot accept. . . .

My Brother Goldberg has adopted the recent discovery[5] that the 9th Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates “fundamental principles of liberty and justice,” or is contrary to the “traditions and [collective] conscience of our people.” . . . [O]ne would certainly have to look far beyond the language of the 9th Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking. . . . [F]or a period of a century and a half no serious suggestion was ever made that the 9th Amendment . . . could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. . . .

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. . . . I had thought that we had laid that [Lochner v. New York (1905)] formula, as a means for striking down state legislation, to rest once and for all in cases like West Coast Hotel Co. v. Parrish (1937). . . .

The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or any other formula like it to invalidate legislation offensive to their “personal preferences,” made the statement, with which I fully agree, that:

For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.

So far as I am concerned, Connecticut’s law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written, and I would therefore affirm.

Mr. Justice Stewart, whom Mr. Justice Black joins, dissenting.

Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. . . . But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do. . . .

What provision of the Constitution . . . make[s] this state law invalid? The Court says it is the right of privacy “created by several fundamental constitutional guarantees.” With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.

At the oral argument in this case we were told that the Connecticut law does not “conform to current community standards.” But it is not the function of this Court to decide cases on the basis of community standards. . . . If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true 9th and 10th Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.

* * *

For articles on the 9th Amendment and less textually explicit rights under the 14th Amendment, see 56 Drake L. Rev. No. 4 (2008).

Griswold v. Connecticut: Notes

1. Robert Bork was a Professor at Yale Law School and subsequently a federal circuit judge and unsuccessful nominee to the United States Supreme Court. He wrote an article criticizing Griswold in 1971, two years before the Court — relying on Griswold’s reasoning — decided Roe v. Wade (1973):

In Griswold a husband and wife assert that they wish to have sexual relations without fear of unwanted children. The law impairs their sexual gratifications. The State [asserts] that the majority finds the use of contraceptives immoral. Knowledge that it takes place and that the State makes no effort to inhibit it causes the majority anguish, impairs [the majority’s] gratifications. . . .

[The case is not covered] specifically or by obvious implication in the Constitution. Unless we can distinguish forms of gratification, the only course for a principled Court is to let the majority have its way in both cases. . . . There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s. . . . There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ. . . .

It follows, of course, that broad areas of constitutional law ought to be reformulated.

Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 9–11 (1971).

2. A Note on Method. At this point it is apparent that legislation impinging on fundamental rights will receive strict scrutiny. Mere economic legislation typically receives low level rational basis review. The problem, of course, is to identify which rights are fundamental and which are not. What methods are available for identifying fundamental rights? The Court often uses various justifications. It appeals to the textual basis of rights in the Bill of Rights, to precedent, to reasoned judgment, to analogy from prior cases, to the penumbras of the Bill of Rights, to inherent liberties of Americans, to ethical aspirations, and to history and tradition.

Two types of justification are essentially different. Appeals to history and tradition may — and appeals to social consensus clearly do — look at what values the majority has traditionally accepted or has now come to accept. An inherent rights or natural rights approach looks to basic human rights, whether the majority accepts them or not. There are paradoxes connected to each approach.

3. The Supreme Court confronted another contraceptive case before addressing the even more volatile issue of abortion. In Eisenstadt v. Baird (1972), the defendant Baird had distributed contraceptive foam after a birth control lecture. The party who received the contraceptive was unmarried. Baird was convicted under a Massachusetts statute barring the distribution of contraceptives. The Court based its decision on equal protection analysis and found the statute lacked rationality. (Here, commentators suggest, we see a new type of rational basis analysis emerging, one far different from low level rational basis. We will later explore this sort of “rational basis with bite” as a separate level of scrutiny.)

^[1]. This Court . . . has never held that the Bill of Rights or the 14th Amendment protects only those rights that the Constitution specifically mentions by name. . . .

 

^[2]. This Amendment has been referred to as The Forgotten Ninth Amendment, in a book with that title by Bennett B. Patterson (1955). As far as I am aware, until today this Court has referred to the 9th Amendment only [5 times].

 

^[3]. The phrase “right to privacy” appears first to have gained currency from an article written by Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urged that States should give some form of tort relief to persons whose private affairs were exploited by others. The Right to Privacy, 4 Harv. L. Rev. 193. . . . Observing that “the right of privacy . . . presses for recognition here,” today this Court, which I did not understand to have power to sit as a court of common law, now appears to be exalting a phrase which Warren and Brandeis used in discussing grounds for tort relief, to the level of a constitutional rule. . . .

 

^[4]. In Meyer, in the very same sentence quoted in part by my Brethren in which he asserted that the Due Process Clause gave an abstract and inviolable right “to marry, establish a home and bring up children,” Mr. Justice McReynolds asserted also that the Due Process Clause prevented States from interfering with “the right of the individual to contract.”

 

^[5]. See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that the Ninth Amendment be used to protect unspecified “natural and inalienable rights.” P. 4. The Introduction by Roscoe Pound states that “there is a marked revival of natural law ideas throughout the world. Interest in the Ninth Amendment is a symptom of that revival.”