U.S. Supreme Court

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)  Decided  June 7, 1965.

MR. JUSTICE DOUGLAS delivered the opinion of the  Court.

Appellant Griswold is Executive Director of the Planned Parenthood League of  Connecticut. Appellant Buxton is a licensed physician and a professor at the  Yale Medical School who served as Medical Director  for the League at its Center  in New Haven - a center open and operating from November 1 to November 10, 1961,  when appellants were arrested. They gave information, instruction, and medical  advice  to married persons as to the means of preventing conception. They  examined the wife and prescribed the best contraceptive device or material for  her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are 53-32 and  54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for  the purpose of preventing conception shall be fined not less than fifty dollars  or imprisoned not less than sixty days nor  more than one year or be both fined  and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or  commands another to commit any offense may be prosecuted and punished as if he  were the principal offender."

The appellants were found guilty as  accessories and fined $100 each, against the claim that the accessory statute as  so applied violated the Fourteenth Amendment....

Coming to the merits, we are met with a wide range of questions that  implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some  arguments suggest that Lochner v. New York, 198 U.S. 45, should be our guide.  But we decline that invitation.  We do not sit as a super-legislature to  determine the wisdom, need, and propriety of laws that touch economic problems,  business  affairs, or social conditions. This law, however, operates directly on  an intimate relation of husband and wife and their physician's role in one  aspect of that relation.

The association of people is not mentioned in the Constitution nor in the  Bill of Rights. The right to educate a child in a school of  the parents' choice  - whether public or private or parochial - is also not mentioned. Nor is the  right to study any particular subject or any foreign language. Yet the First  Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children  as one chooses is made applicable to the States by the force of the First and  Fourteenth Amendments. By Meyer v. Nebraska,  supra, the same dignity is given  the right to study the German language in a private school. In other words, the  State may not, consistently with the spirit of the First Amendment, contract the  spectrum of available knowledge... And so we reaffirm the principle of the  Pierce and the Meyer cases.

In NAACP v. Alabama we protected the "freedom to associate and privacy in  one's associations," noting that freedom of association was a peripheral First  Amendment right. Disclosure of membership  lists of a constitutionally valid  association, we held, was invalid "as entailing the likelihood of a substantial  restraint upon the exercise by petitioner's members of their right to freedom of  association." Ibid. In other words, the First Amendment has a penumbra where  privacy is protected from governmental intrusion.  The right of "association,"  like the right of belief (Board of Education v. Barnette, 319 U.S. 624), is more  than the right to attend a meeting; it includes the right to express one's  attitudes or philosophies by membership in a group or by affiliation with it or  by other lawful means. Association in that context is a form of expression of  opinion; and while it is not expressly included in the First Amendment its  existence is  necessary in making the express guarantees fully meaningful.

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.  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 Fourth and Fifth Amendments were described... as protection against all  governmental invasions "of the sanctity of a man's home and the privacies of  life."

We have had many controversies over these penumbral rights of "privacy and  repose."  These cases bear witness that the right of privacy which presses for  recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of  privacy created by several fundamental constitutional guarantees. And it  concerns a law which, in forbidding the use of  contraceptives rather than  regulating their manufacture or sale, seeks to achieve its goals by means having  a maximum destructive impact upon that relationship. Such a law cannot stand in  light of  the familiar principle, so often applied by this Court, that a  "governmental purpose to control or prevent activities constitutionally subject  to state regulation may not be achieved by means which  sweep unnecessarily  broadly and thereby invade the area of protected freedoms." . 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.

We deal with a right of privacy older than the Bill of Rights - older than  our political parties, older than our school system. Marriage is a coming  together for better or for worse, hopefully enduring, and intimate to the degree  of being sacred. It is an association that promotes a way of life, not causes; a  harmony in living, not political faiths; a bilateral loyalty, not commercial or  social projects. Yet it is an association for as noble a purpose as any involved  in our prior decisions.

Reversed.

MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE  BRENNAN join, concurring.

I agree with the Court that Connecticut's birth-control law  unconstitutionally intrudes upon the right of marital privacy, and I join in its  opinion and judgment. Although I have not accepted the view that "due process"  as used in the Fourteenth Amendment incorporates all of the first eight  Amendments, I do agree that the concept of liberty protects those personal  rights that are  fundamental, and is not confined to the specific terms of the  Bill of Rights. My conclusion that the concept of liberty is not so restricted  and that it embraces the right of marital privacy though that right is not  mentioned explicitly in the Constitution is supported both by numerous decisions  of this Court, referred to in the Court's opinion, and by the language and  history of the Ninth Amendment. In reaching the conclusion that the right of  marital privacy is protected, as being within the protected penumbra of specific  guarantees of the Bill of Rights, the Court refers to the Ninth  Amendment, I add  these words to emphasize the relevance of that Amendment to the Court's holding.

The Court stated many years ago that the Due Process Clause protects those  liberties that are "so rooted in the traditions and conscience of our people as  to be ranked as fundamental."

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 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.

In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights, that, by  enumerating particular exceptions to the grant of power, it would disparage  those rights which were not placed in that  enumeration; and it might follow by  implication, that those rights which were not singled out, were intended to be  assigned into the hands of the General Government, and were consequently  insecure.  This is one of the most plausible arguments I have ever heard urged  against the admission of a bill of rights into this system; but, I conceive,  that it may be guarded against. I have attempted it, as  gentlemen may see by  turning to the  last clause of the fourth resolution [the Ninth  Amendment]."

Mr. Justice Story wrote of this argument against a bill  of rights and the meaning of the Ninth Amendment:

"In regard to . . . [a] suggestion, that the affirmance of certain  rights might disparage others, or might lead to argumentative implications in  favor of other powers, it might be sufficient to say that such a course of  reasoning could  never be sustained upon any solid basis . . . . But a  conclusive answer is, that such an attempt may be interdicted (as it has been)  by a positive declaration in such a bill of rights that the enumeration of  certain rights shall not be construed to deny or disparage others retained by  the people."

He further stated, referring to the Ninth Amendment:

"This clause was manifestly introduced to prevent any perverse or  ingenious misapplication of the well-known maxim, that an affirmation in  particular cases implies a negation in all others;  and, e converso, that a  negation in particular cases implies an affirmation in all  others."

These statements of Madison and Story make clear that the  Framers did not intend that the first eight amendments be construed to exhaust  the basic and fundamental rights which the Constitution guaranteed to the  people.

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, which specifically states that  "[t]he enumeration in the  Constitution, of certain rights, shall not be construed to deny or disparage  others retained by the people...."

In determining which rights are fundamental, judges are not left at large to  decide cases in light of their personal and private notions. Rather, they 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."  The inquiry is whether a right involved "is of such a character that it cannot  be denied without violating those `fundamental principles of liberty and justice  which lie at the base of all our civil and political institutions' . . . ."

Although the Constitution does not speak in so many words of the right of  privacy in marriage, I cannot believe that it offers these fundamental rights no  protection. The fact that no particular provision  of the Constitution   explicitly forbids the State from disrupting the traditional relation of the  family - a relation as old and as fundamental as our entire civilization -surely  does not show that the Government was meant to have the power to do so. Rather,  as the Ninth Amendment expressly
recognizes, there are fundamental personal  rights such as this one, which are protected from abridgment by the Government  though not specifically mentioned in the Constitution.

The logic of the dissents would sanction federal or state legislation that  seems to me even more plainly unconstitutional than the statute before us.  Surely the Government, absent a showing of a  compelling subordinating state  interest, could not decree that all husbands and wives must be sterilized after  two children have been born to them. Yet by their reasoning such an invasion of  marital privacy would not be subject to constitutional challenge because, while  it might be "silly," no provision of the Constitution specifically prevents the  Government from curtailing the marital  right to bear children and raise a  family. While it may shock some of my Brethren that the Court today holds that  the Constitution protects the right of marital privacy, in my view it is far  more  shocking to believe that the personal liberty guaranteed by the  Constitution does not include protection against such totalitarian limitation of  family size, which is at complete variance with our  constitutional concepts.  Yet, if upon a showing of a slender basis of rationality, a law outlawing  voluntary birth control by married persons is valid, then, by the same  reasoning, a law requiring compulsory birth control also would seem to be valid.  In my view, however, both types of law would unjustifiably intrude upon rights  of marital privacy which are constitutionally protected.
 

MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins,  dissenting.

I agree with my Brother STEWART'S dissenting opinion. And like him I do not  to any extent whatever base my view that this Connecticut law is constitutional  on a belief that the law is wise or that its policy is a good one. In order that  there may be no room at all to doubt why I vote as I do, I feel constrained to  add that the law is every bit as offensive to me as it is to my Brethren of the  majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it  is offensive to them, hold it unconstitutional. There is no single one of the  graphic and eloquent strictures and  criticisms fired at the policy of this  Connecticut law either by the Court's opinion or by those of my concurring  Brethren to which I cannot subscribe - except their conclusion that the evil   qualities they see in the law make it unconstitutional.

The Court talks about a constitutional "right of privacy" as though there is  some constitutional provision or provisions forbidding any law ever to be passed  which might abridge the  "privacy" of individuals. But there is not. There are,  of course, guarantees in certain specific constitutional provisions which are  designed in part to protect privacy at certain times and places with respect to  certain activities. Such, for example, is the Forth  Amendment's guarantee  against "unreasonable searches and seizures." But I think it belittles that   Amendment to talk about it as though it protects nothing but "privacy." To treat  it that way is to give it a niggardly interpretation, not the kind of liberal  reading I think any Bill of Rights  provision should be given. The average man  would very likely not have his feelings soothed any more by having his property  seized openly than by having it seized privately and by stealth. He simply  wants  his property left alone. And a person can be just as much, if not more,  irritated, annoyed and injured by an unceremonious public arrest by a policeman  as he is by a seizure in the privacy of  his office or home.

One of the most effective ways of diluting or expanding a constitutionally  guaranteed right is to substitute for the crucial word or words of a  constitutional guarantee another word or words, more or less  flexible and more  or less restricted in meaning. This fact is well illustrated by the use of the  term "right of privacy" as a comprehensive substitute for the Fourth Amendment's  guarantee against "unreasonable searches and seizures." "Privacy" is a broad,  abstract and ambiguous concept which can easily be shrunken in meaning but which  can also, on the other hand,  easily be interpreted as a constitutional ban  against many things other than searches and seizures. 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.  For these reasons I cannot agree with the Court's judgment and the reasons it  gives for holding this Connecticut law unconstitutional.

The due process argument which my Brothers HARLAN and WHITE adopt here is  based, as their opinions indicate, on the premise that this Court is vested with  power to invalidate all state laws that it considers to be arbitrary,  capricious, unreasonable, or oppressive, or on this Court's belief that a  particular state law under scrutiny has no "rational or justifying" purpose, or  is offensive to a "sense of fairness and justice." If these formulas based on  "natural justice," or others which mean
the same thing, are to prevail, they  require judges to  determine  what is or is not constitutional on the basis of  their own appraisal of what laws are unwise or unnecessary. The power to make  such decisions is of course that of a legislative body.  Surely it has to be  admitted that no provision of the Constitution specifically gives such blanket  power to courts to exercise such a supervisory veto over the wisdom and value of  legislative policies and to hold unconstitutional those laws which they believe  unwise or dangerous.

I repeat so as not to be misunderstood that this Court does have power, which  it should exercise, to hold laws unconstitutional where they are forbidden by  the Federal Constitution. My point is that there is no provision of the  Constitution which either expressly or impliedly vests power in this Court to  sit as a supervisory agency over acts of duly constituted legislative bodies and  set aside their  laws because of the Court's belief that the legislative policies  adopted are unreasonable, unwise, arbitrary, capricious or irrational. The  adoption of such a loose, flexible, uncontrolled standard for holding laws  unconstitutional, if ever it is finally achieved, will amount to a great  unconstitutional shift of power to the courts which I believe and am constrained  to say will be bad for the  courts and worse for the country. Subjecting federal  and state laws to such an unrestrained and unrestrainable judicial control as to  the wisdom of legislative enactments would, I fear, jeopardize the separation of  governmental powers that the Framers set up and at the same time threaten to  take away much of the power of States to govern themselves which the  Constitution plainly intended them to have.

I realize that many good and able men have eloquently spoken and written,  sometimes in rhapsodical strains, about the duty of this Court to keep the  Constitution in tune with the times. The idea is that  the Constitution must be  changed from time to time and that this Court is charged with a duty to make  those changes. For myself, I must with all deference reject that philosophy. The  Constitution makers knew the need for change and provided for it. Amendments  suggested by the people's elected representatives can be submitted to the people  or their selected agents for ratification. That method of change was good for  our Fathers, and being somewhat old-fashioned I must add it is good enough for  me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or  any mysterious and uncertain natural law concept as a reason for striking down  this state law. The Due Process Clause with an "arbitrary and capricious" or  "shocking to the conscience" formula was  liberally used by this Court to strike  down economic legislation in the early decades of this century, threatening,  many people thought, the tranquility and stability of the Nation. See, e. g.,   Lochner v. New York, 198 U.S. 45. That formula, based on subjective  considerations of "natural justice," is no less dangerous when used to enforce  this Court's views about personal rights than  those about economic rights. I had  thought that we had laid that formula, as a means for striking down state  legislation, to rest once and for all.

MR. JUSTICE STEWART, whom MR. JUSTICE BLACK joins,  dissenting.

Since 1879 Connecticut has had on its books a law which forbids the use of  contraceptives by anyone. I think this is an uncommonly silly law. As a  practical matter, the law is obviously unenforceable,  except in the oblique  context of the present case. As a philosophical matter, I believe the use of  contraceptives in the relationship of marriage should be left to personal and  private choice, based upon each individual's moral, ethical, and religious  beliefs. As a matter of social policy, I think professional counsel about  methods of birth control should be available to all, so that each individual's  choice can be meaningfully made. But we are not asked in this case to say  whether we think this law is unwise, or even asinine. We are asked to hold that  it violates the United States  Constitution. And that I cannot do.