Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy by John W. Johnson is one of the better examples of various "landmark cases" books. It goes somewhat off the rails after discussing the case, the summary of privacy cases after Roe a bit weak. Nonetheless, it provides a good account of the case overall, including a brief history of privacy rights from the colonial days to the 1960s. Cases and events can provide a good way to address broad principles and themes, this book being a timely example. I read and noted it already; the times show the need to continuously re-examine such things, lessons slipping away.
Unlike some, I think the majority opinion is overall a useful approach, ironically given the author, a more conservative one than the open-ended "liberty" stance later used. Some like to ridicule talk of "penumbras" and "emanations"* like childish people laughing at funny sounding words. The principle was in fact repeatedly cited, "penumbra" itself used over twenty times in past opinions. Brennan (with support from Goldberg and Harlan) but shortly before noted the overall theme:
The book notes the long concern of privacy, including Justice Story in his Commentaries speaking of "liberty of private sentiment" and the threat of "cold and formal severity" if private correspondence was not protected. The proper role of the state (public v. private) was an essential theme, including privacy of family life and religious belief. The preface speaks of a "judicially constructed right," but I do not accept that. I think the right was always there, if not fully recognized. As is normal in common law jurisdictions, at some point, a slew of cases show a theme, which is set forth as doctrine. Such was the case here.
Special note should be given to Justice White's concurrence. His opinion, like Harlan's just his own, recognized a substantive due process liberty interest in the privacy of family life. As he noted, precedent so recognized, warranting heightened scrutiny here. Any alleged state interest here to a law that burdened the use of contraceptives (if never directly enforced against actual use, White noted that the law in practice unequally burdened the right by blocking distribution and advice in ways mostly felt by the less well off; the dissents in Poe v. Ullman also fleshed out the dangers of the law, a point the majority opinion here barely did except with a passing comment about invading bedrooms) is of "marginal utility to the declared objective." I find that is the best approach to answer the "premises" provided to block same sex marriage, ones "whose validity has not been demonstrated and whose intrinsic validity is not very evident."
White notes the various uses of contraceptives -- family planning, health or protecting of "life itself" (pregnancy more lethal at that time; some also noted the abortion ban, unlike the law against birth control, had a life exception -- thus, a different sort of "life" also was at stake). The effort for legalization was in large part one driven by doctors. It was seen as a matter of public health. This is now controversial according to some people. "Pregnancy is not a disease." Here too the absurdity increasing the chance of abortion is left open as funding of contraceptives is threatened. The Church for years blocked legalization for non-Catholics. Now, such members of the hierarchy wishes to do so indirectly.
It is true that the ruling could have been more detailed, including in comparison to the dissents in Poe v. Ullman. Connecticut courts over the years focused on the argument that the law should be interpreted to have a health exception or at least one for physicians. By the time the rulings tied to Poe and Griswold were involved, they were tired and largely just cited precedent. The privacy argument was not really addressed (see, e.g., a case referenced by Justice White, Trubek v. Ullman, which directly raised the privacy of family life argument and the court below noted it didn't add anything to past rulings focused on doctors and health). It was only a back-up argument for those behind the Griswold case and the confused oral argument never really got around to it.**
Some cases did flesh things out though Roe v. Wade was tellingly lacking in this regard, though the concurring opinions in it and a companion case did provide helpful context. Griswold was an easy case, involving marital privacy and clear intimate activity (including medical treatment and private advice) that most accepted as protected. But, the principles logically led to harder cases, if ones reasonably decided. Things were still in flux post-Roe, as noted in a somewhat obscure ruling involving providing certain information to obtain prescription drug, one that also providing a helpful summary:
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* The much maligned principle:
** Listening at Oyez.com, Poe v. Ullman was even worse, a very labored performance with the end of the audio garbled. Also, imagine a justice now -- like Harlan -- politely taking back a planned question (on free speech implications of a law that covered "counseling" and other things) to allow the advocate a chance to address other issues. Emerson very well might have been better off answering the question -- it might have helped Justice Black find something wrong with the law.
Unlike some, I think the majority opinion is overall a useful approach, ironically given the author, a more conservative one than the open-ended "liberty" stance later used. Some like to ridicule talk of "penumbras" and "emanations"* like childish people laughing at funny sounding words. The principle was in fact repeatedly cited, "penumbra" itself used over twenty times in past opinions. Brennan (with support from Goldberg and Harlan) but shortly before noted the overall theme:
It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.The ruling cited the First, Third, Fourth, Fifth and Ninth Amendments in particular as having aspects of privacy. I have spoke of in the past of the Ninth Amendment, but suffice to say, as Justice Goldberg noted in his separate opinion, there are liberties beyond the four corners of the text and the spirit of the text is one way to find them. The Supreme Court never had much occasion to deal with Third Amendment, but the opinion notes how the First and Fourth raised privacy interests. Shortly after, another ruling (citing an earlier opinion) noted the right against self-incrimination is in place partially on account of "our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life.' " Years later, the Supreme Court said the Second Amendment is particularly important in the home as well. In Bowers v. Hardwick, Justice Powell also suggested criminalization of private acts raised Eighth Amendment concerns.
The book notes the long concern of privacy, including Justice Story in his Commentaries speaking of "liberty of private sentiment" and the threat of "cold and formal severity" if private correspondence was not protected. The proper role of the state (public v. private) was an essential theme, including privacy of family life and religious belief. The preface speaks of a "judicially constructed right," but I do not accept that. I think the right was always there, if not fully recognized. As is normal in common law jurisdictions, at some point, a slew of cases show a theme, which is set forth as doctrine. Such was the case here.
Special note should be given to Justice White's concurrence. His opinion, like Harlan's just his own, recognized a substantive due process liberty interest in the privacy of family life. As he noted, precedent so recognized, warranting heightened scrutiny here. Any alleged state interest here to a law that burdened the use of contraceptives (if never directly enforced against actual use, White noted that the law in practice unequally burdened the right by blocking distribution and advice in ways mostly felt by the less well off; the dissents in Poe v. Ullman also fleshed out the dangers of the law, a point the majority opinion here barely did except with a passing comment about invading bedrooms) is of "marginal utility to the declared objective." I find that is the best approach to answer the "premises" provided to block same sex marriage, ones "whose validity has not been demonstrated and whose intrinsic validity is not very evident."
White notes the various uses of contraceptives -- family planning, health or protecting of "life itself" (pregnancy more lethal at that time; some also noted the abortion ban, unlike the law against birth control, had a life exception -- thus, a different sort of "life" also was at stake). The effort for legalization was in large part one driven by doctors. It was seen as a matter of public health. This is now controversial according to some people. "Pregnancy is not a disease." Here too the absurdity increasing the chance of abortion is left open as funding of contraceptives is threatened. The Church for years blocked legalization for non-Catholics. Now, such members of the hierarchy wishes to do so indirectly.
It is true that the ruling could have been more detailed, including in comparison to the dissents in Poe v. Ullman. Connecticut courts over the years focused on the argument that the law should be interpreted to have a health exception or at least one for physicians. By the time the rulings tied to Poe and Griswold were involved, they were tired and largely just cited precedent. The privacy argument was not really addressed (see, e.g., a case referenced by Justice White, Trubek v. Ullman, which directly raised the privacy of family life argument and the court below noted it didn't add anything to past rulings focused on doctors and health). It was only a back-up argument for those behind the Griswold case and the confused oral argument never really got around to it.**
Some cases did flesh things out though Roe v. Wade was tellingly lacking in this regard, though the concurring opinions in it and a companion case did provide helpful context. Griswold was an easy case, involving marital privacy and clear intimate activity (including medical treatment and private advice) that most accepted as protected. But, the principles logically led to harder cases, if ones reasonably decided. Things were still in flux post-Roe, as noted in a somewhat obscure ruling involving providing certain information to obtain prescription drug, one that also providing a helpful summary:
The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.Planned Parenthood v. Casey and Lawrence v. Texas [focusing on intimate association, well discussed in this law review article cited by Justice Blackmun's earlier Bowers dissent] also later provided helpful summaries of basic themes, if relying on "liberty" instead of "privacy" as such. Those wanting more discussion can always do keyword searches on this blog, since I believe the right to privacy is basic. As Prof. Allen noted:
We should care because privacy is important. I urge that we think of it as a “foundational” good like freedom and equality. Privacy is not a purely optional good like cookies and sports cars. Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions. I agree with moral, legal and political theorists who have argued that privacy is a right.A lot of stuff to ponder. John Johnson helps us along in this book.
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* The much maligned principle:
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.This provides a limiting principle -- "specific guarantees" or textual limits provide the launching point, thus reference to "the home" (Fourth Amendment) or associations (with First Amendment content). The Court (two justices not even joining in there, Warren not overly enthused about it even when he did) did not hold to this theme, Roe v. Wade speaking of general "liberty."
** Listening at Oyez.com, Poe v. Ullman was even worse, a very labored performance with the end of the audio garbled. Also, imagine a justice now -- like Harlan -- politely taking back a planned question (on free speech implications of a law that covered "counseling" and other things) to allow the advocate a chance to address other issues. Emerson very well might have been better off answering the question -- it might have helped Justice Black find something wrong with the law.