Griswold v. Connecticut and the Right to Privacy Built From Penumbras

Here is a sentence I will say clearly, so that no one has to guess: Connecticut's ban on contraception was a foolish law. A state that sends the police into a marital bedroom to look for evidence of family planning has lost its way, and the judges who said so deserve a hearing.

Now here is the second sentence, and it is the one the casebooks skip. A foolish law is not the same thing as an unconstitutional law. The distance between those two ideas is the whole case, and it is a distance that every voter should be able to measure.

Two questions that get confused

Americans are good at asking whether a law is wise. We are worse at asking whether it is constitutional. The two questions have different answers and different remedies.

If a law is unwise, you persuade your neighbours, vote out the legislators who passed it, and repeal it. That is self-government. It is slow, annoying and the whole point.

If a law is unconstitutional, a court may strike it down, and the people cannot undo that by voting, because a court's reading of the Constitution can only be reversed by constitutional amendment or by the Court changing its mind. That is a much larger power, and it should be used only when the text of the Constitution requires it.

Griswold is the case where the Court answered the second question using the habits of the first. Look at how it did it, because the method is more important than the result.

The statute and the clinic

In 1879 Connecticut enacted a law making it a crime to use "any drug, medicinal article or instrument for the purpose of preventing conception." The punishment was a fine of at least fifty dollars or imprisonment between sixty days and a year, or both. A companion statute made it a crime to assist, abet or counsel another to commit the offence, so a doctor who advised a patient became an accessory.

The law sat on the books for decades. It was almost never enforced against married couples. The Supreme Court had dodged earlier challenges, including Poe v. Ullman (1961), on the ground that the State was not actually prosecuting anyone, so no real controversy existed. Justice Harlan dissented in Poe, in an opinion that mattered later.

Then Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a Yale physician, opened a clinic in New Haven in November 1961 to give married people contraceptive advice. They were arrested within days, convicted as accessories and fined one hundred dollars each. Now there was a case.

The majority: penumbras and emanations

On June 7, 1965, the Court reversed, 7 to 2. Justice William O. Douglas wrote the opinion.

Look first at what Douglas did not do. He did not say that the statute violated a particular clause. He did not claim the Fourth Amendment's ban on unreasonable searches directly forbade it, though he mentioned the bedroom. Instead he surveyed several amendments and argued that each protects an area of privacy:

• the First Amendment, with its freedom of association;
• the Third, which bars the quartering of soldiers in a house in time of peace;
• the Fourth, which protects the people against unreasonable searches and seizures of their "persons, houses, papers, and effects";
• the Fifth, with its protection against self-incrimination;
• the Ninth, which says that other rights are retained by the people.

From these, he said, "penumbras" and "emanations" form, zones of privacy that the specific guarantees need in order to have life and substance. A right to privacy sits in the shadows of the Bill of Rights. Marriage, he said, is an association older than the Bill of Rights itself. And he asked a rhetorical question that was meant to end the discussion: would the Court allow police to search "the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" The idea, he said, was "repulsive to the notions of privacy surrounding the marriage relationship."

It is a great line. It is rhetoric, not reasoning. The idea that a thing is repulsive is not a constitutional rule. Plenty of repulsive things are constitutional, and plenty of constitutional things are repulsive. The question is whether the Constitution says anything about it.

The concurrences: the method already in dispute

The Justices in the majority did not all agree on how to get there, and that is telling.

Justice Arthur Goldberg, joined by Chief Justice Warren and Justice Brennan, wrote a concurrence resting on the Ninth Amendment. The Ninth reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Goldberg read it as showing that the Framers believed in fundamental rights beyond those listed.

Justice John Marshall Harlan concurred in the judgment on a different ground. He had said it in Poe: the Fourteenth Amendment's Due Process Clause protects a "liberty" that includes values deeply rooted in the nation's traditions, and the Connecticut law violated them. This is the same road Lochner travelled, though Harlan would never have used that name for it. Justice Byron White also concurred in the judgment, on due process grounds.

Count the routes. Douglas used penumbras. Goldberg used the Ninth. Harlan and White used due process. Seven Justices reached a single result by several different roads. When judges cannot agree on which part of the Constitution they are applying, a reasonable citizen is entitled to ask whether they are applying the Constitution or their own sense of what is decent.

The dissents

Justice Hugo Black, joined by Justice Potter Stewart, dissented. Black was no enemy of rights. He was a liberal Justice who wanted the Bill of Rights read literally and enforced vigorously. His dissent is a masterpiece of candour:

I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.

Black's point was that the Constitution does not contain a general right of privacy. It contains specific guarantees, and the Court's job is to apply them. If something is not in the text, you must go to the people to add it. He also warned that the Ninth and Fourteenth Amendments, used the way the majority used them, would give the Court the power to strike down any law that a majority of the Court found unreasonable, which is the kind of power the Court had claimed in the Lochner era and then abandoned.

Stewart wrote separately. He called the Connecticut law "an uncommonly silly law," and said the way to remove it was to persuade the legislature to repeal it. He could not find in the Constitution a general right of privacy, and the Court's job was to decide what the Constitution says, not what is wise. Whatever you think of the result, those are the sentences of a man holding his own preferences at arm's length. That is a judicial virtue, and it is rarer than it should be.

A bad law and an unconstitutional law

Number the argument, because it is simple.

1. The Constitution establishes a government of enumerated powers and a list of specific guarantees. A court may strike down a statute only by pointing to the power Congress or the State lacks, or to the guarantee the statute violates.
2. The Connecticut statute was a bad law. It was intrusive, almost impossible to enforce without invading homes, and unsupported by the evidence that its defenders cited.
3. A bad law may be repealed by the people who live under it. Connecticut's legislature was perfectly capable of changing it, and the fact that it had not done so in decades is a fact about Connecticut's politics, not a constitutional defect.
4. The Court did not identify a provision that the statute violated. It identified a feeling, and then it traced the feeling back to five provisions that did not say what it needed them to say.
5. Therefore, the statute may have been foolish, but the opinion that struck it down was a poor piece of constitutional law, and the doctrine it created was dangerous.

Notice what I am not claiming. I am not saying the Connecticut law was good, or that a right to buy contraceptives should be lost. Nor am I claiming that a Fourth Amendment argument could not have been made, or that the Fourteenth Amendment contains no substantive protection for liberty. Serious people argue those things. What I am saying is that Douglas did not make them. He made something else.

The strongest objection

The strongest objection is practical and fair. It goes like this. The Constitution contains many principles that no one can find stated in a single clause. The right to travel between states, the presumption of innocence and the right to marry are not spelled out. If the Court may not protect rights that are not listed, then the Ninth Amendment means nothing, and a legislature could, for instance, require everyone to eat government-approved food or forbid anyone to marry.

That is a good point, and it should be answered with a point, not a sneer. Three answers.

First, the Ninth Amendment says that the enumeration of rights shall not be construed to deny others. It protects them from being denied by implication. It does not say who enforces them or how. Many scholars, including a good number of originalists, read it as a rule of construction, a warning against reading the Bill of Rights as the only rights, and not a source of judicially enforceable rights in itself. Those who think otherwise owe an account of how the Ninth is enforced and who decides what is in it.

Second, the examples of travel and marriage prove less than the objection thinks. Many such rights have roots in specific provisions, in the Privileges and Immunities Clause or the Fourteenth Amendment's guarantee of liberty as understood at its ratification, and in long traditions of the common law. A judge who looks for those roots is doing the job. A judge who starts from the result and looks for a clause is not.

Third, the alternative to judicial rights-finding is not tyranny. It is legislatures, constitutions in fifty states, and the amendment process. States that want to protect privacy can do so by statute and by their own constitutions. The idea that without Douglas's penumbras the marital bedroom would have been unprotected is a fear, not a fact.

What followed

Griswold did not stay in the bedroom. In Eisenstadt v. Baird (1972) the Court extended the right to unmarried persons. A year later, in Roe v. Wade, Justice Blackmun relied on Griswold and its descendants to hold that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The Roe opinion placed the right in the Fourteenth Amendment's concept of liberty, the Harlan road, not Douglas's penumbras, but it was Griswold that supplied the template: find the right first, find the clause second.

That is the real legacy, and it is why a case about a law almost nobody defended has remained a battleground. When the Court overruled Roe in Dobbs v. Jackson Women's Health Organization (2022), the majority said its decision did not call into question precedents that did not concern abortion. Justice Thomas, in a concurrence, wrote that the Court should reconsider other substantive due process precedents, naming Griswold among them. Justice Kavanaugh wrote separately to say nothing in the decision called Griswold into doubt. The argument continues, and it ought to. We should hold two thoughts: the Connecticut law was silly, and the Court's way of getting rid of it was a method with no brakes.

If you want the story of what the Court did with the method next, read Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result and Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent. The earlier version of the same debate is in Lochner v. New York Divides Conservatives More Than Progressives Admit, and the question of how judges should read the Constitution is taken up in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen. For what a judge should do with an unwise law, see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not. The text of the Bill of Rights is on the Constitution page.

The case in brief

1. A bad law and an unconstitutional law are different things, and the remedy for the first is the ballot, not the bench.
2. Griswold struck down Connecticut's 1879 contraception ban, but seven Justices reached the result by several different routes, which suggests no clause did the work.
3. Black and Stewart were right that the Constitution contains specific guarantees and no free-floating privacy right, even while they thought the law was silly.
4. The strongest objection, that unlisted rights exist, is answered by looking for textual and historical roots, not by inventing penumbras.
5. The method became the template for Roe, and the argument over it has not ended.

What you can do: read the Fourth, Ninth and Fourteenth Amendments in full, then ask your state legislators what privacy protections your state's own constitution and statutes provide.