In 1875, the Supreme Court discussed that each branch of government, federal and state "are all of limited and defined powers." The government has no power to go beyond them; "the law authorizing it was beyond the legislative power, and was an unauthorized invasion of private right." This is almost boilerplate: there clearly is a separation between "the public" and "the private," government controlling what is "in the public interest." One justice dissented, concerned that allowing courts that declared laws unconstitutional on such broad grounds "would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism." He dissented alone.
Loan Assn. v. Topeka was one of many cases cited by the majority opinions in Griswold v. Connecticut. Its principles, both broadly respected unenumerated rights and particularly involving privacy, was in no way new. The concerns of the dissent (and the fact a clear majority disagreed with them) were not as well. One might add that the concurring opinions did a better job spelling out these principles. Justice White's opinion was particularly useful, including respecting spelling out the reasons why the state did not justify its prohibition. The majority was rather cavalier about that. As White noted:
An examination of the justification offered, however, cannot be avoided by saying that the Connecticut anti-use statute invades a protected area of privacy and association or that it demeans the marriage relationship. The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require "strict scrutiny," and "must be viewed in the light of less drastic means for achieving the same basic purpose." Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.
But, as he and Justice Goldberg noted, the interest was in no way "compelling" or narrowly tailored. Justice Harlan and Goldberg also addressed the limiting factors respecting avoiding "judicial despotism":
It will be achieved in this area, as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.
And how privacy in part grew out of protections of the home:
Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its preeminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . . Of this whole "private realm of family life," it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations.
A couple entries back, I referenced Prince v. Massachusetts (1944), which concerns regulating children labor. The ruling was handed down over twenty years before Griswold, and cited rulings from the 1920s to underline that matters of childrearing was a particularly "private realm," even if involved public behaviors such as where one sent one's children to school. The liberty was broadly honored, even if it was not one specifically cited by the Bill of Rights. But, broad rights of which free governments could not invade was a theme of the federal courts since the 1790s.
It also broadly honored the liberties of the First Amendment which protected "freedom of conscience" and "freedom of the mind." As White recognized, these rights were not all absolute. The state could protect child welfare. All the same, "the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." So, the courts have to apply such laws with special care. A few years earlier, the Court noted the same applied respecting a law relating to sterilizing prisoners.
Griswold also cites Public Utilities Comm'n v. Pollack (1952), which involved the local government providing music in streetcars, which some disliked since they felt it invaded their privacy. Justice Frankfurter even felt he could not neutrally decide the question, recusing himself. Justice Black didn't think, under the First Amendment, the federal government (involved here) could force people to listen to political propaganda. But, as with the majority, music alone was not deemed a problem. "However complete his right of privacy may be at home, it is substantially limited by the rights of others when its possessor travels on a public thoroughfare or rides in a public conveyance."
All the same, it was perfectly acceptable to consider such a "right of privacy" as a colorable "liberty" claim under the Due Process of Law. As Justice White noted in a valuable footnote in Griswold, due process went beyond mere procedural concerns. The ruling also spoke of a "right of privacy" involving the home. As noted, an earlier ruling mentioned such a privacy involving questions of child raising. Logically, this would also include whether or not to have a child (or another child) in the first place. Preventing such an "invasion of private right" was surely considered basic long before then. Again, it was not suddenly "created" in the 1960s.
Justice Douglas dissented. He felt that people in effect were forced to listen, since many could only go places like work by public transportation. They should have a right to decide what to listen to. Their privacy was at stake:
The case comes down to the meaning of "liberty" as used in the Fifth Amendment. Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom. ... If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice. That system cannot flourish if regimentation takes hold. The right of privacy, today violated, is a powerful deterrent to any one who would control men's minds.
The theme of privacy secured even in a public context was also not new. Justice Douglas' dissent noted the First and Fourth Amendment aspects of privacy. This includes choice respecting religious questions, which past decisions recognized involved some freedom to preach and hand out literature in public. As noted, educating your children was a privacy right even if it involved sending them to schools, though an early aspect of the "right to privacy" was cited by Justice Brandeis respecting home schooling. And, one can buy contraceptives and abortion services.
Again, the fact these things are somewhat public in character (as is going to church), does not destroy its "private" character. People realize this in certain respects, but sometimes selectively feign amnesia respecting others. Anyway, passing upon the citation of Prince led me again to the privacy rulings, which have plenty of useful readings for those who just cannot believe what certain "judicial activists" want to do.
But, I have my doubts if such people ever read such things. So much easier to stereotype and whine.