Griswold v. Connecticut
A "right" to "privacy" is invented
For decades, many lawyers and judges (and especially academics) have believed that the founding principles of this nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights is outdated, that the Constitution’s creation of a representative republic is from a time gone by, and that the Bill of Rights is not a restraint on government but rather a source of newly found, even “creatable,” rights. These people are the proponents of the Constitution as a “living document,” and their high priest was the late Supreme Court Justice William J. Brennan, Jr. “[T]he Constitution,” according to Brennan,
embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. * * * When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. (Speech by Associate Justice of the Supreme Court of the United States William J. Brennan, Jr., to the Text and Teaching Symposium, Georgetown University, October 12, 1985, Washington, D.C., reprinted in “The Great Debate: Interpreting Our Written Constitution,” published by the Federalist Society as Occasional Paper No. 2 (1986)).
In other words, the concept of a “Living Constitution,” so central to liberal jurisprudence and evident in so much Supreme Court adjudication, means no Constitution at all.
A “Living Constitution” is anti-democratic because it removes from the public forum and from those politically accountable, and thus from the electorate itself, important issues of social, economic, and other policy, and reposes those issues in federal judges, especially nine unelected philosopher kings and queens appointed for life and accountable to no one.
Among the worst examples of Supreme Court justices breathing life into their "Living Constitution," and thus perverting the principle of judicial restraint and the process of judicial review, is the utterly indefensible decision in the case of Griswold v. Connecticut where Justice William O. Douglas midwifed the birth of the ersatz "right of privacy."
Estelle T. Griswold was Executive Director of the Planned Parenthood League of Connecticut (the cutting edge of America's pro-abortion movement). Dr. C. Lee Buxton was a licensed physician, a professor at the Yale Medical School, and the league's medical director at its New Haven, Connecticut, center.
The popularly elected legislature of the state of Connecticut had enacted two statutes dealing with the subject of contraception. The popularly elected governor of the state had approved them. Connecticut’s intermediate appellate court had upheld the statutes’ constitutionality. So did the state’s highest court. In other words, the people of Connecticut and their political and legal institutions all approved of the two statutes. Democracy at work!
One section of the statute provided that “[a]ny person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifth dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.”
The other section provided that “[a]ny 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.”
According to the Supreme Court, Griswold and Buxton each “gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife [of the married couple] and prescribed the best device or material for her use. Fees were usually charged, although some couples were serviced for free.” (Emphasis in original.)
Because of this conduct, Griswold and Buxton were charged as accessories to their clients’ crime of using contraceptives. They were found guilty, and eventually their case reached the Supreme Court of the United States.
The Court’s majority opinion, written by Justice William O. Douglas is a barely three-page opinion. In it he prospected his way through the Constitution. Although what Douglas found was fool’s gold, it glittered enough to satisfy six of his colleagues. Indeed, Douglas’s majority opinion for himself and the others is an explicit repudiation of the Bill of Rights:
[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.”
The Fourth and Fifth Amendments were described in [an earlier case] as protection against all governmental invasions “of the sanctity of a man's home and the privacies of life.” We recently referred . . . to the Fourth Amendment [protecting against unreasonable searches and seizures] as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” (My emphasis.)
Next, Douglas noted that there had in the past been “many controversies over these penumbral rights of ‘privacy and repose,’ and concluded that earlier cases—not one of which had ever constitutionally enshrined a “right of privacy” relating to contraception, or anything else—“bear witness that the right of privacy which presses for recognition here is a legitimate one.” (My emphasis.)
Note that in his prospecting through the Constitution for a “right of privacy” by which the Connecticut state law could be held unconstitutional, Douglas invoked provisions of the federal Bill of Rights—which, as we know, were not supposed to apply to the conduct of states.
Applying the Bill of Rights to the conduct of states is, of course, unjustifiable even when it involves an express provision of that document, as for example the free speech guarantee of the First Amendment. It’s even worse when what is applied against the states is a provision not expressly found in the Bill of Rights but instead something mystically divined from “emanations” and “penumbras.”
Undeterred by his inventing constitutional law as he went merrily on his way, Douglas wrote:
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.” * * * 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. (My emphasis.)
Compared to Douglas's pretentious mumbo-jumbo, Justice Stewart’s dissent (joined by Justice Black) focused on actual, not invented, constitutional law. Characterizing the Connecticut statute as “an uncommonly silly law,” Stewart recognized that the Court was not being asked “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.”
Why not, since six of his colleagues apparently had no trouble doing just that?
In a direct reproach to Douglas having rutted around in virtually all of the Constitution’s amendments, Stewart replied that:
[a]s to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States. It has not even been argued that this is a law “respecting an establishment of religion, or prohibiting the free exercise thereof.” And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” No soldier has been quartered in any house [Third Amendment]. And there has been no search, and no seizure. Nobody has been compelled to be a witness against himself.
It appears from Justice Stewart’s dissent that when he finished his seemingly exasperated search through the Bill of Right for some provision—any provision—from which he could discern the emanations and penumbras that Douglas had conjured, a simple question had to be asked: “What provision of the Constitution,” Stewart wrote, “make[s] . . . this state law invalid? The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees’.” " (My emphasis.)
Well, that wasn’t good enough for Stewart: “With all deference,” he wrote, “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.”
Stewart ended his dissent by a broad statement about judicial power:
At the oral argument in this case 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. We are here to decide cases “agreeably to the Constitution and laws of the United States.” It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should truly hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
At the end of these comments, Justice Steward inserted an interesting and important footnote: “The Connecticut House of Representatives recently passed a bill . . . repealing the birth control law. The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court.” (Emphasis in original.)
Not only did the Connecticut one-house repeal demonstrate the “silliness” of the statute and its unacceptability to the people of Connecticut, the state legislative action underscored that the use of judicial power to rewrite the Constitution is at once politically arrogant, legally unnecessary, and constitutionally unjustified.
And dangerous—because Douglas’s ersatz “right to privacy” would later be employed by the Supreme Court in Roe v. Wade to justify invalidating virtually every state law affecting abortion.