1. Griswold v. Connecticut, (1965)

2. Facts: Griswold was the executive director of planned parenthood. He was convicted under a Connecticut statute that made it a crime to assist our counsel someone for the purpose of preventing conception.

3. Procedural Posture: The state appellate courts affirmed.

4. Issue: Whether the Connecticut law is a constitutional exercise of the state’s police power in view of the substantive due process of the 14th amendment.

5. Holding: No.

6. Majority Reasoning: The court distanced itself from Lochner, stating that they do not sit as a “super-legislature” to determine the wisdom and need of laws that touch economic or social conditions. However, this law operates directly on the intimate relationship between husband and wife. Although there are rights that are not specifically mentioned in the Bill of Rights, the court has held that they nevertheless are constitutionally protected. For instance the right to choice in education (Pierce v. Society of Sisters, Meyer v. Nebraska). These rights were derived from the 1st amendment right of free speech, which was held to include the freedom of thought and to teach. Without those peripheral rights, the express rights would be less secure. Thus, the 1st amendment has a “penumbra” (shadow) where “privacy is protected from governmental intrusion.” Likewise, the 3rd amendment prohibition against quartering of soldiers, and the 4th amendment prohibition of search and seizure, and the 5th amendment self-incrimination clause, all have a penumbra of privacy. The 9th amendment guarantees that the bill of rights is not to be construed as exclusive of other rights retained byt he people. This present case lies within the zone of privacy created by these guarantees.

7. Concurrence Reasoning: [Goldberg] The due process clause of the 14th amendment does not incorporate all of the Bill of Rights, but it does protect “liberty,” which is those personal rights which are fundamental, such as marital privacy. The 9th amendment itself, although it is not an independent source of rights incorporated by the 14th amendment, lends strong support. The entire fabric of the Constitution and the traditions it represents demonstrate that the marital right of privacy is of the same fundamental importance as the rights specifically enumerated. Where there is such a fundamental right being infringed, the state must show a “compelling” interest, not merely “rational relation.” The law here is an extremely bad means-ends fit because the state interest in preventing extra-marital relationships is not furthered by criminalizing contraception. [Harlan] felt that the proper analysis was whether this statute infringed on the due process clause of the 14th amendment because it violated basic values “implicit in the concept of ordered liberty” like Palko. The liberty here is so fundamental that it must be subjected to “strict scrutiny.”

8. Dissent Reasoning: [Black] felt that the word “privacy” was being substituted for “liberty”, thus he was afraid that the specific guarantees of the bill of rights were being too broadened. The government has a right to invade privacy unless prohibited by some constitutional provision. Broadening these guarantees has the danger of diluting them because the concept of “privacy” can be easily narrowed or broadened according to judicial subjectiveness. The court’s analysis here is too much like Lochner in its attempt to find a “natural law” basis for constitutional protections not found in the bill of rights.

9. Notes: 1. Although Justice Douglas disavows Lochner as a guide and instead relies on “penumbras” of the enumerated constitutional rights, Lochner’s “liberty of contract” could possible also be found in a “penumbra” of the contracts clause, thus there is not a significant distinction. 2. It is also unclear as to what the scope of the Griswold right of privacy is. It is probably narrower than a private “autonomy” of choice. In Eisenstadt v. Baird, the court took a further step in overturning a statute that prohibited the distribution of contraceptives (not just the “use”, as was the case in Griswold), even by unmarried couples (not just “married” couples as was the case in Griswold), thus broadening the scope of the right of privacy to include the right of an individual to be free from governmental regulation of birth choices. 3. Griswold does not reveal at what point a liberty becomes so fundamental as to deserve “strict scrutiny” rather than just “rational relation.”