Guest Essayist: Joerg Knipprath

In June, 1961, the Supreme Court declined to rule on the constitutionality of an 1879 Connecticut law that prohibited the use of contraceptive devices for the purpose of preventing pregnancy, as well as the counseling of such use. The law applied to married and unmarried couples. However, the law had apparently only been enforced once, in 1940, in a test case, where the charges were dismissed after the state supreme court upheld the law. In the more recent challenge, Poe v. Ullman, two couples and their doctor from the Yale University Medical School sought a declaratory judgment that the statute was unconstitutional. The Supreme Court noted that there had been no threat of prosecution by the state, the statute had not been enforced in the past, and contraceptives were freely sold in Connecticut drugstores, so that the case lacked the genuine dispute required by the Constitution for federal court action. Several justices dissented, one of whom, Justice John Marshall Harlan II, would pave the way for the next challenger.

The Supreme Court’s refusal to play ball in Poe caused Planned Parenthood of Connecticut to open a clinic in New Haven in November, 1961. Estelle Griswold–the clinic’s director–and Lee Buxton (the same doctor as in Poe v. Ullman) wanted another test case. In an apparently coordinated event, they were arrested eventually for distributing contraceptives to married couples, convicted, and fined $100 each.

On appeal, the Supreme Court declared the Connecticut statute unconstitutional by 7-2. The majority in Griswold v. Connecticut (1965) was composed of opinions that demonstrate an array of jurisprudential reasoning. Justice William Douglas wrote the official opinion. Douglas averred that Connecticut’s law violated the couples’ right of privacy. Since such a right is found nowhere in the Constitution, Douglas had to use a-textual principles or find some way to tie the result to that document’s text. Douglas had been a student and, subsequently, a law professor at Ivy League Schools. There, he had absorbed the legal elite’s self-evident truths, one of which was disdain for the judicial activism of Lochner v. New York (1905). The “Lochner doctrine” applied a-textual reasoning to discover in the Constitution’s due process clauses a “liberty of contract,” which was used to strike down “progressive” legislation. The Court overturned that approach emphatically during the New Deal in West Coast Hotel v. Parrish (1937).

Thus, Douglas “decline[d] that invitation” to use Lochner, claiming that the Court did not “sit as a super-legislature to determine the wisdom, need, and propriety of laws ….” Instead, he argued, the right of privacy is to be found in the “penumbras, formed by emanations” from specific Bill of Rights guarantees. This has been dubbed the “stewpot theory” of judicial review. Like the raw ingredients of a stew that, put together, produce a more wonderful concoction, combining parts of the First, Third, Fourth, and Fifth Amendment produced the right of privacy.

Three major problems arise with Douglas’s jurisprudence. First, under textual analysis, the specific command controls the general, and listing only specific aspects of a general principle implies that the general is not to be applied. Thus, if different laws prohibit the sale of cars, lettuce, phones, and couches, it is not to be implied that the sale of all goods is prohibited. A variation of this principle is that “an affirmation in particular applications implies a negation in all others.” Second, if the Framers understood the Constitution to protect a general right of privacy, they could have said as much. That would have protected not only the rights specified, but also that at issue in Griswold. Third, even if these provisions imply a general right to privacy, why would that protect using contraceptives, but not, say, smoking marijuana? The Court has repeatedly said that the mere fact that activity occurs in private does not protect it from legal control, so any answer necessarily requires reference to factors outside the Constitution’s text.

Douglas gives away the interpretive game by characterizing the right in Griswold as “older than the Bill of Rights ….Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Since it pre-dates the Bill of Rights, its status as a fundamental right cannot depend on the existence of textual snippets in those amendments. Douglas’s observation about marriage is particularly poignant. Douglas had what might be described delicately as a turbulent personal life and, at the time of Griswold, was dissolving his third marriage and about to embark on a romance with his future fourth wife.

Due to these jurisprudential weaknesses, the Court has not resorted to Douglas’s “penumbras” approach when addressing unenumerated rights since Griswold. Instead, the concurring opinions of Justices Goldberg and Harlan have proven more durable. Both defined the right as part of a person’s “liberty” protected by the due process clause of the Fourteenth Amendment against deprivation by states or localities. A parallel analysis under the Fifth Amendment’s due process clause applies if the federal government burdens such liberty. This was, clearly, the Lochner doctrine resurrected. Both justices ran into a familiar jurisprudential obstacle. Why would this liberty embrace the right to use (and acquire) contraceptives but not to contract for wages and hours or, as above, to smoke marijuana? There had to be a way to characterize one personal choice as liberty protected under the Constitution while the others might be personal liberties, but would not receive constitutional recognition.

Justice Arthur Goldberg argued that, “In determining which rights are fundamental, judges…must look to the ‘traditions and (collective) conscience of our people’ to determine whether a principle is ‘so rooted (there)…as to be ranked as fundamental.” If a right is fundamental, it is a constitutionally protected liberty, and the government can restrict it only if it meets “strict scrutiny,” that is, that the law is necessary to achieve a compelling government interest. Justice Harlan urged that the liberty component of the due process clauses protects “basic values ‘implicit in the concept of ordered liberty’” and referred to his Poe dissent for further analysis. In Poe, Harlan had hearkened back to old cases that claimed that various provisions in the Constitution protect not only enumerated rights but all those “‘which are…fundamental; which…belong to the citizens of all free governments,’…for ‘the purposes (of securing) which men enter into society,’….”

Both justices’ formulations require recourse to standards outside the Constitution’s text to define protected “liberty.” Harlan’s approach is the paradigmatic substantive due process analysis of the Lochner era that evokes the universalism of social contract theory and of natural law/natural rights. Presumably, “all free governments” and the “purposes [all] men enter into society” are not limited to the experience of Americans. Goldberg’s is more akin to the 19th century’s school of “historical jurisprudence” that looks to traditions that mark each culture, including its customs and law. Taken on their face, either approach requires judges to go beyond their competency as lawyers into the domain of political philosophy. Both justices claimed to avoid that by limiting relevant inquiry to American legal tradition and historical evolution.

The dissent was unpersuaded. Justice Hugo Black, joined by Justice Potter Stewart, declared, “I like my privacy as well as the next one,” but denied the power of judges to invalidate all state laws that they deem “arbitrary, capricious, unreasonable, or oppressive” or that offend their “sense of fairness and justice.” He correctly admonished his brethren that their reasoning and choice of precedents involved the same “subjective considerations of ‘natural justice’” as the Lochner doctrine that Douglas professed to disdain. He accused the majority that their approach amounted to imposing their personal preferences about the wisdom of particular laws and recalled Judge Learned Hand’s accusation, “[Judges] wrap up their veto in a protective veil of adjectives…to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.”

No matter how earnestly and eloquently Justices Goldberg and Harlan might urge that judges are restrained in their discretion by legal tradition, Black’s powerful dissent stripped their argument of its cloak. At best, the majority would require judges to undertake a task for which they were not trained, to be philosophers or wise policy-makers, “a bevy of Platonic Guardians,” as Judge Hand had termed them. At worst, they would see themselves as a roving constitutional convention, tasked with the duty to keep a “living Constitution” in tune with the times as they saw fit. Looking at the recent jurisprudence of Justice Anthony Kennedy concerning marriage, it is difficult to find fault with Black’s critique.

There are several additional particular points that bear mention about the Griswold opinions. The Supreme Court has settled on the Goldberg approach of looking at legal traditions to identify whether or not a fundamental right is involved. That would entail examination of the history of state laws and judicial precedents, as well as the evolution of the English common law to determine the degree to which the activity has been regulated by law or left to the decision of the individual. However, the starting point of such inquiry involves the critical step of defining the applicable right. The Griswold opinions talked much about the “right of privacy,” but a lot of privacy has been subject to legal restraints historically. In some cases, the issue has been defined as the “right to be left alone,” a characterization borrowed from a throw-away dictum by Justice Louis Brandeis in a wiretapping case. That formulation is patently ridiculous, since the entirety of law as a form of social control is to infringe on the right to be left alone and to require people to do what they do not want to do or to refrain from doing that which they wish. On the other hand, defining a right narrowly, as, for example, a right of married couples to use contraceptives means that at least some statutes exist (such as Connecticut’s) that have restricted that right.

All of the opinions in the majority repeatedly mentioned the unwelcome impact the law had on marital intimacy and the traditionally protected status of the marital relationship. In his Poe dissent, Justice Harlan declared, “It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.” If, then, the right is more properly described as that of a married couple to use contraceptives, it may well be that the Connecticut law was a rogue exception to law’s traditional hands-off approach to the family domain and would be unconstitutional under the “customs and traditions” analysis.

What about abortion, sexuality, and marriage? As Harlan emphasized in Poe, not only may a state through its laws seek to promote the moral soundness of its people, but every society in civilized times has done so. “The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication, and homosexual practices…form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Such common regulations, then, do not go against our legal traditions or violate fundamental principles of ordered liberty; indeed civilization requires them.

It is important to keep in mind how limited the Griswold holding is when read in its entirety and when compared to its later application. The right of married couples to use contraceptives and the rarity of the Connecticut law stand in stark contrast to the Court’s subsequent expansion of the right of privacy. Thus, in the abortion case, Roe v. Wade, the Court had to disregard a long history of restrictions on abortion by statutes in almost all states, as well as by the common law. Nor did the laws in Roe interfere with the conduct of marital intimacy, as such. Justice Harry Blackmun recounted the history of anti-abortion law but ignored Griswold’s “legal traditions and customs” as the test to determine whether or not the right to abort was fundamental. He merely concluded that it was.

Likewise, Justice Anthony Kennedy’s pronouncements in Lawrence v. Texas regarding homosexual sodomy and Obergefell v. Hodges regarding same-sex marriage failed to apply the Griswold framework. Instead, Kennedy pressed into service the Court’s own line of post-Griswold precedents, which had expanded the right of privacy by distorting that case’s holding. Most absurd was Kennedy’s insistence that the Court was merely defining the “liberty of all,” not imposing its own view of morality. First, holding that sexual behavior or marriage is to be left entirely to the decisions of the participants is itself a view of morality. Second, Kennedy’s notion that the Constitution apparently incorporates John Stuart Mill’s On Liberty contradicts Harlan’s exposition in Poe of the long-accepted historical authority to enact standards of morality for the community’s overall well-being.

Griswold v. Connecticut (1965) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for a very educational essay. I had not considered that the right to privacy was not specifically addressed in the Constitution.

    I too like and want my privacy protected. But as noted, how does one regulate society if everything a person does is private and therefore unregulated? The answer we are seeing is simple, it can’t. Ironically, the liberal progressives who have used the exploited the Griswold holding to redefine societal norms are equally quick to apply different arguments to restrict those who disagree.

    This essay lands squarely on America at a crossroad we have passed and may not return to, nor long survive. We are clearly a house divided with little evidence that the fissure will be mended. To quote A. Lincoln who quoted Jesus, ““Every kingdom divided against itself is laid waste, and no city or house divided against itself will stand.”




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