GRISWOLD v. CONNECTICUT 381 U.S. 479 (1965)

Seen in the perspective of the development of constitutional doctrine, Griswold stands among the most influential Supreme Court decisions of the latter part of the twentieth century. A full understanding of its effect on the constitutional future requires a look at Griswold's antecedents. Even seen narrowly, Griswold was something of a culmination. The birth control movement had made two previous unsuccessful attempts to get the Court to invalidate Connecticut's law forbidding use of contraceptive devices. In Tileston v. Ullman (1943) a doctor was held to lack standing to assert his patients' constitutional claims, and in Poe v. Ullman (1961), when a doctor and his patients sued in their own rights, the Court again dismissed—this time on jurisdictional grounds that could charitably be called ingenuous. Griswold proved to be the charm; operators of a birth control clinic had been prosecuted for aiding married couples to violate the law, furnishing them advice and contraceptive devices. The Supreme Court held the law invalid, 7–2.

Griswold fanned into flames a doctrinal issue that had smoldered in the Supreme Court for nearly two centuries: the question whether the Constitution protects natural rights or fundamental interests beyond those specifically mentioned in its text. (See calder v. bull; fundamental law and the supreme court; higher law.) In the modern era, that question of constitutional interpretation had focused on Justice hugo l. black's argument that the fourteenth amendment fully incorporated the specific guarantees of the bill of rights and made them applicable to the states. Black's dissent in Adamson v. California (1947) had scorned the competing view, limiting the content of the Fourteenth Amendment due process to the fundamentals of ordered liberty. This "natural-law-due-process formula," said Black, not only allowed judges to fail to protect rights specifically covered by the Constitution but also permitted them "to roam at large in the broad expanses of policy and morals," trespassing on the legislative domain. In Adamson Justice frank murphy had also dissented; accepting the incorporation doctrine, Murphy argued that other "fundamental" rights, beyond the specific guarantees of the Bill of Rights, were also protected by due process. Griswold offered a test of the Black and Murphy views.

Justice william o. douglas, who had agreed with Black in Adamson, recognized that the Connecticut birth control law violated no specific guarantee of the Bill of Rights. A number of other guarantees, however, protected various aspects of privacy, and all of them had "penumbras, formed by emanations from those guarantees that [helped] give them life and substance." The Griswold case concerned "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." The ninth amendment recognized the existence of other rights outside those specifically mentioned in the Bill of Rights, and the right of marital privacy itself was "older than the Bill of Rights." Enforcement of Connecticut's law would involve intolerable state intrusion into the marital bedroom. The law was invalid in application to married couples, and the birth control clinic operators could not be punished for aiding its violation.

In form, this "penumbras" theory was tied to the specifics of the Bill of Rights; in fact, it embraced the Murphy contention. Justices john marshall harlan and byron r. white, concurring, candidly rested on substantive due process grounds. Justice Black, dissenting, expressed distaste for the Connecticut law but could find nothing specific in the Constitution to prevent the state from forbidding the furnishing or the use of contraceptives. He chided the majority for using natural law to "keep the Constitution in tune with the times"—a function that lay beyond the Court's power or duty.

Griswold served as an important precedent eight years later when the Court held, in roe v. wade (1973), that the new constitutional right of privacy included a woman's right to have an abortion. (See reproductive autonomy.) The Roe opinion, abandoning the shadows of Griswold's penumbras, located the right of privacy in the "liberty" protected by Fourteenth Amendment due process. Griswoldthus provided a bridge from the Murphy view in Adamson to the Court's modern revival of substantive due process. Underscoring this transition, later decisions such as eisenstadt v. baird (1972) and carey v. population services international (1977) have made plain that Griswold protected not only marital privacy but also the marital relationship—and, indeed, a freedom of intimate association extending to unmarried persons. If substantive due process is a vital part of today's constitutional protections of personal liberty, much of the credit goes to the Griswold decision and to Justice Douglas.

Kenneth L. Karst
(1986)

Bibliography

Kauper, Paul G. 1965 Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case. Michigan Law Review 64:235–258.