Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)

Mon, 3 Mar 2003 20:36:54 -0800

BB quoted some of the opinion, here is some of the dissent.  Well,
actually quite a lot of it.


"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 Fourth [p*509] 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 have expressed the view many times that First
Amendment freedoms, for example, have suffered from a failure of the
courts to stick to the simple language of the First Amendment in
construing it, instead of invoking multitudes of words substituted for
those the Framers used. See, e.g., New York Times Co. v. Sullivan, 376
U.S. 254 , 293 (concurring opinion); cases collected in City of El Paso
v. Simmons, 379 U.S. 497, 517, n. 1 (dissenting opinion); Black, The
Bill of Rights, 35 N.Y.U.L.Rev. 865. For these reasons, I get nowhere in
this case by talk about a constitutional "right of privacy" as an
emanation from [p*510] one or more constitutional provisions. [n1] 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." [n3] If these formulas based on "natural justice," or others
which mean the same thing, [n4] are to prevail, they require judges to
determine [p*512] 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
readily admit that no legislative body, state or national, should pass
laws that can justly be given any [p*513] of the invidious labels
invoked as constitutional excuses to strike down state laws. But perhaps
it is not too much to say that no legislative body ever does pass laws
without believing that they will accomplish a sane, rational, wise and
justifiable purpose. While I completely subscribe to the holding of
Marbury v. Madison, 1 Cranch 137 , and subsequent cases, that our Court
has constitutional power to strike down statutes, state or federal, that
violate commands of the Federal Constitution, I do not believe that we
are granted power by the Due Process Clause or any other constitutional
provision or provisions to measure constitutionality by our belief that
legislation is arbitrary, capricious or unreasonable, or accomplishes no
justifiable purpose, or is offensive to our own notions of "civilized
standards of conduct." [n5] Such an appraisal of the wisdom of
legislation is an attribute of the power to make laws, not of the power
to interpret them. The use by federal courts of such a formula or
doctrine or whatnot to veto federal or state laws simply takes away from
Congress and States the power to make laws based on their own judgment
of fairness and wisdom, and transfers that power to this Court for
ultimate determination -- a power which was specifically denied to
federal courts by the convention that framed the Constitution. [n6]

. Brothers WHITE and GOLDBERG now apparently would start from this
requirement that laws be narrowly drafted so as not to curtail free
speech and assembly, and extend it limitlessly to require States to
justify any law restricting "liberty" as my Brethren define "liberty."
This would mean at the [p*518] very least, I suppose, that every state
criminal statute -- since it must inevitably curtail "liberty" to some
extent -- would be suspect, and would have to be Justified to this
Court. [n11]

My Brother GOLDBERG has adopted the recent discovery [n12] that the
Ninth Amendment as well as the Due Process Clause can be used by this
Court as authority to strike down all state legislation which this Court
thinks [p*519] violates "fundamental principles of liberty and justice,"
or is contrary to the "traditions and [collective] conscience of our
people." He also states, without proof satisfactory to me, that, in
making decisions on this basis, judges will not consider "their personal
and private notions." One may ask how they can avoid considering them.
Our Court certainly has no machinery with which to take a Gallup Poll.
[n13] And the scientific miracles of this age have not yet produced a
gadget which the Court can use to determine what traditions are rooted
in the "[collective] conscience of our people." Moreover, one would
certainly have to look far beyond the language of the Ninth Amendment
[n14] to find that the Framers vested in this Court any such awesome
veto powers over lawmaking, either by the States or by the Congress. Nor
does anything in the history of the Amendment offer any support for such
a shocking doctrine. The whole history of the adoption of the
Constitution and Bill of Rights points the other way, and the very
material quoted by my Brother GOLDBERG shows that the Ninth Amendment
was intended to protect against the idea that, "by enumerating
particular exceptions to the grant of power" to the Federal Government,
"those rights which were not singled out were intended to be assigned
into the hands of the General Government [the United States], and were
consequently [p*520] insecure." [n15] That Amendment was passed not to
broaden the powers of this Court or any other department of "the General
Government," but, as every student of history knows, to assure the
people that the Constitution in all its provisions was intended to limit
the Federal Government to the powers granted expressly or by necessary
implication. If any broad, unlimited power to hold laws unconstitutional
because they offend what this Court conceives to be the "[collective]
conscience of our people" is vested in this Court by the Ninth
Amendment, the Fourteenth Amendment, or any other provision of the
Constitution, it was not given by the Framers, but rather has been
bestowed on the Court by the Court. This fact is perhaps responsible for
the peculiar phenomenon that, for a period of a century and a half, no
serious suggestion was ever made that the Ninth Amendment, enacted to
protect state powers against federal invasion, could be used as a weapon
of federal power to prevent state legislatures from passing laws they
consider appropriate to govern local affairs. Use of any such broad,
unbounded judicial authority would make of this Court's members a
day-to-day constitutional convention.
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 [p*521] 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. [n16] [p*522]

In 1798, when this Court was asked to hold another Connecticut law
unconstitutional, Justice Iredell said: 
[I]t has been the policy of all the American states which have
individually framed their state constitutions since the revolution, and
of the people of the United States when they framed the Federal
Constitution, to define with precision the objects of the legislative
power, and to restrain its exercise within marked and settled
boundaries. If any act of Congress, or of the Legislature of a state,
violates those constitutional provisions, it is unquestionably void,
though I admit that, as the authority to declare it void is of a
delicate and awful nature, the Court will never resort to that authority
but in a clear and urgent case. If, on the other hand, the Legislature
of the Union, or the Legislature of any member of the Union, shall pass
a law within the [p*525] general scope of their constitutional power,
the Court cannot pronounce it to be void, merely because it is, in their
judgment, contrary to the principles of natural justice. The ideas of
natural justice are regulated by no fixed standard: the ablest and the
purest men have differed upon the subject, and all that the Court could
properly say in such an event would be that the Legislature (possessed
of an equal right of opinion) had passed an act which, in the opinion of
the judges, was inconsistent with the abstract principles of natural

Since Marbury v. Madison, 1 Cranch 137 , was decided, the practice has
been firmly established, for better or worse, that courts can strike
down legislative enactments which violate the Constitution. This
process, of course, involves interpretation, and since words can have
many meanings, interpretation obviously may result in contraction or
extension of the original purpose of a constitutional provision, thereby
affecting policy. 

But to pass upon the constitutionality of statutes by looking to the
particular standards enumerated in the Bill of Rights and other parts of
the Constitution is one thing; to invalidate statutes because of
application of "natural law" deemed to be above and undefined by the
Constitution is another.

In the one instance, courts, proceeding within clearly marked
constitutional boundaries, seek to execute policies written into the
Constitution; in the other, they roam at will in the limitless [p*526]
area of their own beliefs as to reasonableness, and actually select
policies, a responsibility which the Constitution entrusts to the
legislative representatives of the people.

The late Judge Learned Hand, after emphasizing his view that judges
should not use the due process formula suggested in the concurring
opinions today or any other formula like it to invalidate legislation
offensive to their "personal preferences," [n22] made the statement,
with which I fully agree, that: 

For myself, it would be most irksome to be ruled by a bevy of Platonic
Guardians, even if I [p*527] knew how to choose them, which I assuredly
do not. [n23] 

The phrase "right to privacy" appears first to have gained currency from
an article written by Messrs. Warren and (later Mr. Justice) Brandeis in
1890 which urged that States should give some form of tort relief to
persons whose private affairs were exploited by others. The Right to
Privacy, 4 Harv.L.Rev.193. Largely as a result of this article, some
States have passed statutes creating such a cause of action, and, in
others, state courts have done the same thing by exercising their powers
as courts of common law. See generally, 41 Am.Jur. 926-927. Thus, the
Supreme Court of Georgia, in granting a cause of action for damages to a
man whose picture had been used in a newspaper advertisement without his
consent, said that "A right of privacy in matters purely private is . .
. derived from natural law," and that

The conclusion reached by us seems to be . . . thoroughly in accord with
natural justice, with the principles of the law of every civilized
nation, and especially with the elastic principles of the common law. .
. .
Pavesich v. New England Life Ins. Co., 122 Ga.190, 194, 218, 50 S.E. 68,
70, 80. Observing that "the right of privacy . . . presses for
recognition here," today this Court, which I did not understand to have
power to sit as a court of common law, now appears to be exalting a
phrase which Warren and Brandeis used in discussing grounds for tort
relief, to the level of a constitutional rule which prevents state
legislatures from passing any law deemed by this Court to interfere with

5. See Hand, The Bill of Rights (1958) 70: .

[J]udges are seldom content merely to annul the particular solution
before them; they do not, indeed they may not, say that, taking all
things into consideration, the legislators' solution is too strong for
the judicial stomach. On the contrary, they wrap up their veto in a
protective veil of adjectives such as "arbitrary," "artificial,"
"normal," "reasonable," "inherent," "fundamental," or "essential," whose
office usually, though quite innocently, is to disguise what they are
doing and impute to it a derivation far more impressive than their
personal preferences, which are all that, in fact, lie behind the

6. This Court held in Marbury v. Madison, 1 Cranch 137 , that this Court
has power to invalidate laws on the ground that they exceed the
constitutional power of Congress or violate some specific prohibition of
the Constitution. See also Fletcher v. Peck, 6 Cranch 87. But the
Constitutional Convention did, on at least two occasions, reject
proposals which would have given the federal judiciary a part in
recommending laws or in vetoing as bad or unwise the legislation passed
by the Congress.

16. Justice Holmes, in one of his last dissents, written in reply to Mr.
Justice McReynolds' opinion for the Court in Baldwin v. Missouri, 281
U.S. 586, solemnly warned against a due process formula apparently
approved by my concurring Brethren today. He said: 

I have not yet adequately expressed the more than anxiety that I feel at
the ever increasing scope given to the Fourteenth Amendment in cutting
down what I believe to be the constitutional rights of the States. As
the decisions now stand, I see hardly any limit but the sky to the
invalidating of those rights if they happen to strike a majority of this
Court as for any reason undesirable. I cannot believe that the Amendment
was intended to give us carte blanche to embody our economic or moral
beliefs in its prohibitions. Yet I can think of no narrower reason that
seems to me to justify the present and the earlier decisions to which I
have referred. Of course, the words "due process of law," if taken in
their literal meaning, have no application to this case, and while it is
too late to deny that they have been given a much more extended and
artificial signification, still we ought to remember the great caution
shown by the Constitution in limiting the power of the States, and
should be slow to construe the clause in the Fourteenth Amendment as
committing to the Court, with no guide but the Court's own discretion,
the validity of whatever laws the States may pass.

19. Justice Holmes, dissenting in Tyson, said: 

I think the proper course is to recognize that a state legislature can
do whatever it sees fit to do unless it is restrained by some express
prohibition in the Constitution of the United States or of the State,
and that Courts should be careful not to extend such prohibitions beyond
their obvious meaning by reading into them conceptions of public policy
that the particular Court may happen to entertain.

The Court does not say how far the new constitutional right of privacy
announced today extends. See, e.g., Mueller, Legal Regulation of Sexual
Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however,
that, even after today, a State can constitutionally still punish at
least some offenses which are not committed in public.