Landmark Cases: Funny Words & the Right to Privacy

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.

-- Justice Douglas (dissenting in 1952)

I have discussed Griswold v. Connecticut and the right to privacy a range of times over the years so feel inclined to restrain myself somewhat this week in spelling out the details of the case.  [I will also add that the Landmark Cases episode here provided something new even to a person familiar with the case by finding some video of various people involved.]

A basic concern is that some "right to privacy" did not really simply arise out of whole cloth in 1965 though this case did firmly expressed a freestanding right to privacy with staying power. Consider, e.g., the opinion a few years before protecting privacy in Mapp v. Ohio -- "security of one's privacy against arbitrary intrusion by the police" was addressed there.  And, Griswold did cite such cases as addressing not just some narrow right of search and seizure, but a wider right of privacy over private life.

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 core argument -- which had limited staying power -- by the majority opinion here was that various enumerated rights had "penumbras" and "emanations" (ill advised doubling down on obscure jargon, even though "penumbra" was used at times in opinions)  that were necessary to fully secure them.  A sort of "necessary and proper" concept for rights. A few justices said basically the same thing in another case handed down about this time and did so without the funny sounding words.  Admittedly, some "right to receive" is closer to the text than a right to privacy.

Justice Douglas -- and this is further clarified in his separate opinion in Doe v. Bolton -- was trying to avoid the bugaboo of "substantive due process."* That is, some open-ended power to judge that a law is arbitrary and capricious. This is different, he argued, because the right is but one step beyond the text itself.  It is not an open-ended argument that "liberty" was being violated by some sort of bad law.  Douglas in other cases, including his dissent in Poe v. Ullman (Harlan's dissent was later in effect accepted as the de facto argument of the Court), also argued that privacy is itself necessary for liberty. Three justices, citing the Ninth Amendment, also accepted that something fundamental for liberty was protected as well as express textual limits.  

I think that a full accounting of the opinion would suggest that some combination of methodology is involved here. Do think there is something to the "penumbra" approach and the Fourth Amendment (the home, Justice Harlan aptly noting "family life" itself involved) has particular relevance here.  The commentary on the episode included an argument that personal identity and "sexual expression" ultimately was how it was understood.  This has a certain First Amendment flavor as well as equal protection since dissenting views are honored.  And, just to note it, Justice White's separate opinion noted how the law was unequally applied -- the poor in practice were denied birth control advice and resources while more well off individuals received health care here via private doctors.  And, the state was okay with that.

But, the penumbra approach lacks something, and again it was not really how the Supreme Court in later cases viewed things. Basically, certain things, particularly personal decisions of a certain type, are understood to be individual liberties.  There were cases to cite here, particularly decisions involving marriage and child-rearing.  Ultimately, the idea of some range of unenumerated rights which in some fashion will be protected by the courts (not out of nowhere -- again, rights involving marital sexual relations were historically accepted and the haphazard limitation here was a fairly easy call) was both widely accepted and having existence back to basically the beginning.

Some broad appeal to natural justice might back in the day been more of a property rights affair but a range of "private rights" [cited in The Federalist]  was repeatedly deemed as a given in some fashion.  Marriage again would be an easy call here though more tricky would be just what that would entail. One of the birth control cases not ultimately used, for example, involved a young couple who saw birth control as a means to craft an equal footing between the spouses.  Justice Douglas' original draft rested more on marriage as a sort of protected right to association. Sex and birth control would be important parts of this right here.

There is some concern with limits here but even the two dissenters made that something of an art more than a science. Justice Stewart, e.g., couldn't find a right to privacy among the amendments.** But, in another case, he found a right to travel somehow.  As Justice Harlan noted in his own concurrence, Justice Black's approach in various cases was far from minimalist.  And, does not the Ninth Amendment and open-ended "liberty" (or "privilege or immunity") language suggest a further reach? See, e.g., the various articles Douglas cited in a later dissent.

Justice Douglas was correct to say that privacy is a necessary aspect of various amendments and liberty in our system as a whole.  "Privacy" -- as he recognized in that early dissent that we began with -- is not just seclusion.  First citing various amendments where it arises, he ends:

The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. 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.

And, various amendments were involved here. The appeal to "public morals" here invaded private morals, so much that the Catholic Church (at least if so-called "abortifacients" weren't involved)  pretty much accepted the right to choose to use contraceptives as a matter of private conscience. Use does raise the privacy of the home. Marriage is a "privilege" or "liberty" with long acceptance, including choices of this nature.  The real effect was on public clinics, which raised equal protection concerns.  There was a First Amendment aspect there too, including giving advice, which Justice Douglas touched upon in Poe v. Ullman.  And, some right to take care of one's health can be seen here too.

Lots of issues.  Ultimately, and no I was not that brief, what is at issue here is some general understanding of the limits of governmental power. A collection of things can be used to apply that case by case. Like here.

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[I can't help myself -- added some footnotes.] 

* There can be some confusion here because certain enumerated rights (e.g., freedom of speech) "incorporated" into the Due Process Clause without concern by many of the critics here are substantive in nature.

** A few further remarks on Stewart. First, he added one of his quotables by calling this an "uncommonly silly law," as it is particularly regarding its use (limits on sale over the years more familiar). I'm not a big fan of these "see, I'm sane on policy, but sorry, I'm a judge" remarks that come off at times as patting oneself on the back. Still, there is a value to getting a personal aside and dissents/concurrences are for that sort of thing.

But, mere personal sentiment is not why the right to privacy, particularly in the marital context, is protected. If desired, people can not use birth control and have really large families or threaten their well being in the case of one or more of the women here with health problems. As to no claim of vagueness, Justice White in particular touches upon the arbitrary application, which tends to be the nature of these open-ended morals laws which realistically is only going to be selectivity enforced.

I already have touched upon why his argument none of the express rights are involved here is at least somewhat overblown. True that laws in general overlap with religious belief, e.g., but the personal morality involved in a contraceptives ban is still of a different caliber than some general law involving murder or any number of mundane things.  He ignores that the majority in effect incorporated the Ninth Amendment so his somersaults comment is taking past Goldberg's concurrence in particular.

The "current community standards" remark needs to be seen in context. It is true that on some level that can be an open-ended grant of judicial power. But, putting aside that something like this is going to leak into common law judging, there is something to that comment especially when applying public morals laws. The Constitution is applied to current understanding and its open-ended terms do reflect the times to some degree.

Finally, Justice Stewart -- and we will see this next week -- does recognize that privacy is protected in various ways by enumerated rights. He argues there is no "general right to privacy" particularly to be enforced by judicial opinions as compared (e.g., in the area of tort law, even outweighing freedom of expression in the balance at times) state legislation etc. He would in that respect agree with Douglas that privacy is important, but disagree on the means.

The concerns of the dissents are duly noted -- seriously -- but do think there is more there than they note. As is often the case, I also think a somewhat different opinion could have been crafted (Justice White's concurrence  touches various bases there), particularly based on how the law was applied.  Douglas' opinion was a tad thin, like a good draft needing more.

[A caller raised the sexual equality option, noting RBG also said it would make a good one for Roe v. Wade.  The earlier reference to the liberal minded marriage couple has shades of that, having an equality/privacy mixture.  It is anachronistic to think that would have worked well in the mid-1960s, though even as early as Roe the opinion had concerns focused on the women specifically, but there is definitely something there. 

The law banned items used "for the purpose of preventing conception," which left open a loophole for condoms for health reasons. This benefited women some, but gave men special benefits and power, including the decision to use the one item allowed.  This is an equal protection violation and since pregnancy itself has health concerns, the concern for health is selective as well. It adds to the overall problem here.]

Finally, there were First Amendment aspects (barely touched upon in oral argument but a whole section of Douglas' dissent in Poe v. Ullman) that warranted a bit more attention. Handing out of contraceptives is speech with action, but a major aspect of this involved birth control information with associational aspects too (this was touched upon and the right to intimate association was raised in later cases).