Griswold v. Connecticut - Condommania

t Douglas1965. First major modern-era case which used a substantive-due-process-like approach to protect a fundamental right; invalidated a statute that prohibited the use of contraceptives.

t Facts. The statute at issue was a Connecticut law which forbade the use of contraceptives(and made this use a criminal offense); the statute also forbade the aiding or counseling of others in their use. The Ds were the director of the local Planned ParenthoodAssociation and its medical director; they were charged with aiding and abetting the violation of the statute. Before the decision, Planned Parenthood operated buses to shuttle women to NY, where they could legally visit birth control clinics. What was really at stake was whether the organization could provide birth control information within the state’s boundaries. Ds were convicted of counseling married persons in the use of contraceptives. No users, married or single, were charged in the case.

t Relevance to Lochner.

n Griswoldmight have been conceptualized in Lochnerterms: the sale of contraceptivesinvolved willing buyers, willing sellers, and a meddlesome interference by the state.

n That argument was a sure loser in 1905: one of the most important exceptions to Lochner’s libertarianism was the protection of “public morals.” [but realize that in litigation in 1939, Planned Parenthood’s citations to Lochner-like cases persuaded lower CT court to strike down statutes as unconstitutional, before 1940 decision of CT SCt upheld statute as legitimate regulation of public morals.]

n In 1965, Lochneritself was long dead. But Bruce Ackermanemphasizes the unresolved question of how much of the old order had been slain. “How sweeping was the New Dealtransformation?

i. Should it be interpreted as completely obliterating the Founding affirmations of private ordering previously expressed in the rhetoric of freedom of contract? Or

ii. Should the courts continue to re-present the Founding concern for personal liberty by marking off for special protection areas of life that seem far removed from the New Dealers’ demand to regulate ‘free’ markets for the general welfare?”

t Majority strikes statute. SCt, by a 7-2 vote, struck down the statute.

n Douglasbegan by rejecting the invitation to follow Lochner; majority opinion declined to make explicit use of the substantive due process doctrine. Instead, he turned to the text, specifically the guarantees of the bill of rights. He held that these “have penumbras, formed by emanations from those guarantees that help given them life and substance.” (942). The SCt then concluded that the right of married persons to use contraceptivesfell within this penumbra. For him, the text, once again, points beyond itself to a larger principle. That principle, however, is in the text. [Douglas, no more than Peckham, adopts any “notion of a living constitution.”].

n The text led Douglasto a structural and purposive analysis from which, through inductive reasoning, he arrived at the right to privacy. Argument on 942 can be summarized thus.

i. Purpose of the guarantees of the first, third, fourth, and fifth amendments is to protect the privacy of the home.

ii. This law could not be enforced without violating that privacy.

iii. Therefore, the law is unconstitutional.

n Examples. Thus the SCt claimed that 1^st Amendment, by its explicit protection of the freedoms of speech and of the press, has “emanations” which create a “penumbra”; it is this penumbra which protects, for instance, the freedom of association, a freedom not explicitly mentioned in the USC. Similarly, the 4^th Amendment’s ban on unreasonable searches has a penumbra which protects privacy interests, as do the 3^rd, 5^th, and 9^th Amendments. Collectively, these Amendments establish a zone in which “privacy is protected from governmental instrusion.”

n Why the statute was invalid. Douglas’ majority opinion did not specify exactly how the Connecticut ban on contraceptivesviolated this penumbra of privacy. But a good part of the rationale seemed to have to do with the privacy implications of proof in prosecutions. Thus the SCt asked: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Douglass concluded that “[t]he very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

n Critique. Douglas’ argument is vulnerable. As Black’s dissent insists, none of these specific provisions protects a general right to privacy. The penumbras argument works only if ,as with freedom of association, the liberty in question is indispensible to the exercise of an enumerated liberty.

i. For example of a penumbra argument that works, consider NAACP v. Alabama, which Douglascites at 942. This case involved an attempt by Attorney General of Alabama to force NAACP to disclose names of its members. SCt held that the NAACP did not need to disclose names, because such compelled disclosure could restrain the organization’s constitutionally protected freedoms of speech and association. SCt noted that NAACP had shown that “on past occasions, revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. NAACP v. Alabamareally was a case in which an unenumerated right -- here, the right to keep one’s membership secret – was necessary to the exercise of an enumerated right. Indeed, it was clear that the real reason Alabama wanted the list was that, by disclosing the names, it could stifle unwelcome dissent.

ii. No such argument seems available in Griswold. Douglasacknowledged at the end of his opinion that marriage “promotes a way of life, not causes; a harmony in living, not political faiths.” This would seem to take it outside the protection of the first amendment. Douglas is left with the claim that the marriage relationship is specifically protected in its privacy because it is “an association for as noble a purpose as any involved in our prior decisions.” The issue, as he has formulated it, is not, however, whether the privacy right is for a noble purpose, but whether it is necessary to the exercise of an enumerated right and therefore qualifies as an implied right.

iii. The concern about police searches at the end is pure makeweight. As noted above, the police did not need to search any bedrooms in order to prove their case. What was at issue here was ability of Planned Parenthoodto operate a birth control clinic near the center of town in New Haven.

t Concurrences. There were three separate concurring opinions. None of the concurrences focus on the problem of reconciling the 14^th Amendmentwith the New Dealto the extent that Douglasdoes. All agreed with the Douglas opinion’s basic conclusion that the Connecticut statute violated the 14^th Amendmentinterest in liberty, but each reached this conclusion by different means.

n Goldberg’s concurrence, which relies on the 9^th Amendment, and Harlan’s concurrence, which looks to the due process clause, both envision a living, evolving constitution, and read these provisions as giving effect to values that are rooted in the traditions of our people.

n Goldberg’s Ninth AmendmentView. Goldberg believed that the 14^th Amendment’s Due ProcessClauseprotected all “fundamental” rights, whether or not these were explicitly listed in the Bill of Rights. He contended that the 9^th Amendment (which provides that “[t]he enumeration in the USC, of certain rights, shall not be construed to deny or disparage others retained by the people”) supported this view, because it “shows a belief of the USC’s authors that fundamental rights exist that are not expressly enumerated in the first eight Amendments.” Just as the 9^th Amendment showed that certain rights not enumerated in the Bill of Rightswere protected as against the federal government, so the 14^th Amendmentshould be found to protect against state action fundamental rights, including some not enumerated in the Bill of Rights. Goldberg found the right of “marital privacy” to be among such fundamental rights, and argued that the statute unconstitutionally violated that right, because it was not necessary for the fulfilling of a “compelling” state objective.

n Harlan’s “ordered liberty” approach. Harlan’s concurrence was essentially in accord with Goldberg’s. Harlan argued that the 14^th AmendmentDue ProcessClausedoes not merely incorporate the specific Bill of Rightsguarantees, but instead “stands . . . on its own bottom,” to protect those basic values “implicit in the concept of ordered liberty.” He then relied on his prior dissent in Poe v. Ullman(1961), which had contended that the same Connecticut statute violated the due process interest in marital privacy.

i. Harlanquoted the test of Palko, which asked whether the right in question is “implicit in the concept of ordered liberty” and thus appears to look more to political philosophy, a la Calder v. Bull, than to tradition.

ii. But the rest of his opinion is tradition-based, and his Poe dissent is the classic defense of that approach.

iii. AK: Do Harlan’s references to tradition and settled norms help alleviate concerns about judicial subjectivity? What makes the right in question here fundamental? Why should the SCt be the bulwark against departures from a well-established status quo?

iv. No protection outside of marriage: Harlan’s Griswold/Poe opinions stopped carefully short of finding a general right to privacy for sexual relations. He explicitly rejected the idea that adultery, homosexuality, fornication and incest were protected by the same right to privacy. He distinguished these from the marital relations situation by nothing that the state allows (even encourages) the marital relation, and should therefore not be permitted to use the criminal law to regulate the intimate details of that relation. By contrast, the state completely forbids the other types of sexual relations, so that it may permissibly regulate the details of those forbidden relations as well.

n White’s means-end test. White’s concurrence focused on the means-end relationship. He would apparently have upheld the statute had it been “reasonably necessary for the effectuation of a legitimate and substantial state interest.” But the Connecticut statute, which supposedly served the state’s policy against promiscuity and illicit sex, was drawn too broadly: there was no need to ban the use of birth control by married couples in order to achieve this objective. Thus Whitewould presumably have upheld the ban as applied to the use of birth control by unmarried couples.

t Dissent. Both of the dissenters think that footnote four of Carolene Products exhausts the protection from governmental intrusion that USC affords. For Black, this is just Lochnerall over again. Is it?

n Black. Reiterated his familiar argument that only those rights explicitly protected by a specific Bill of Rights(or other constitutional) provision were protected by the 14^th Amendment; he felt that “no right of privacy,” in the broad and general way the majority used that term, was protected by any specific provision.

n Stewart. Similarly failed to find a right of privacy in any specific guarantee, and also rejected the Goldberg 9^th Amendment rationale (claiming that it limited only the powers of federal government).

Date: 2015-01-02; view: 658