Supreme Court Decision of Historical Import #2
Looks like we had some rather positive feedback on our first attempt at this, and since I had some time, I figured I’d get this week’s edition out now.
This week’s case is Griswold v. Connecticut, the decision which effectively established the right to privacy as a constitutionally protected right. It’s also an illuminating case because it offers concurring and dissenting opinions that outline basic tenants of the dominant strains of jurisprudence in the US today.
Dr. Griswold was the executive director of the Planned Parenthood League of Connecticut. In 1961, he was arrested and convicted for violating state law that made it a crime to use or prescribe “any drug, medicinal article or instrument for the purpose of preventing conception.” Given that this case was heard in the 1960s, it’s probably important to note that Dr. Griswold provided contraception to a married couple - but, that is really the totality of the facts.
The first issue that the Court addressed was whether Dr. Griswold had standing to challenge the law on behalf of patients. The Court found that he did, based on a right to association and the unique relationship between a doctor and patient.
The Court then analyzed a string of cases regarding various rights before coming to this conclusion:
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. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). 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 famous “penumbras and emanations” language which has been the bane of so many law students, lawyers, and lawmakers over the years. But the majority decision, delivered by Justice Douglas is rather short and to the point, striking down the law based on a very simple question and answer:
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.
Justice Goldberg issued an important concurring opinion (the final decision was 7-2, and we will discuss the dissenting opinion as well). Justice Goldberg focused on the Ninth Amendment, and specifically the idea that the enumerated rights stated in the Bill of Rights are not our only fundamental rights:
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, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. 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.” The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him, and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights [Footnote 3] 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.
This would have been a much easier reading of the constitution, and would not have created as much of a nightmare as the “penumbras and emanations” language has for years. It is, also the most interesting opinion of the three issued in this case. It relies heavily on the Ninth Amendment - and to be honest, probably best matches my own notions of how the constitution should be used to protect fundamental rights.
The Ninth 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 Ninth 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 Ninth Amendment…
While the justices were careful to limit this to martial privacy, I tend to believe this general principle is the correct reading of the Ninth Amendment when it applies to all fundamental rights (what constitutes a fundamental right is a question for another day). Unfortunately, Justice Goldberg was not willing to go that far:
Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth 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.
I have to admit, it is hard to square the circle of those two sentences. I suppose the way one does that is by taking the position that fundamental rights don’t come from the constitution but come from nature/god/innate human dignity. However one reads it, it is hard to escape the idea that a reading of the Ninth Amendment that recognizes unenumerated fundamental rights protected by the constitution and identifiable by the courts would be the most logical one. It is also one that has a basis in the traditions of common law as old British courts would often apply the concept of right reason.
And that takes us to the dissenting opinion of Justice Stewart, who applies a strict constructionist view to find no right to privacy in the constitution. Justice Stewart found the Ninth Amendment analysis complete off base:
The Court also quotes the Ninth Amendment, and my Brother GOLDBERG’s concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which this Court held “states but a truism that all is retained which has not been surrendered,” United States v. Darby, 312 U. S. 100, 312 U. S. 124, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.
What provision of the Constitution, then, does make 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.
This is a basic tenant of strict constructionism. Because there is no expressly stated right to privacy, it is not protected by the constitution. I do wonder, again, how one squares the circle of how one determines which rights are retained by the people or the states without weighing in on issues like this. This is also the flaw of Justice Black’s dissent, where he spends much of his time criticizing Justice Goldberg’s concurring opinion. Some who take this position would argue that it should be the legislature who decides, or the people in states with referendum voting. But I’d argue that allowing constitutional rights to be subject to the whims of the majority is incredibly dangerous.