Griswold vs. Connecticut

[Frodo]

Amidst all the talk over the fate of Roe vs. Wade, I thought I would introduce another Supreme Court decision that is related to the sexual revolution of the 1960s and '70s:

Griswold vs. Connecticut is generally known to have established the right of married couples to use contraceptives -would you support its overturning?

And here is a link that you could use to learn more about the decision:

http://www.oyez.org/oyez/resource/case/149/abstract

[nini2287]

Griswold vs. CT did the right thing for the country but is probably unconstitutional.  I would suggested overturning the ruling and simultaneously passing an amendment dealing with the issue.

[Ebowed]

Griswold vs. CT did the right thing for the country but is probably unconstitutional. I would suggested overturning the ruling and simultaneously passing an amendment dealing with the issue.

Agreed.

[Emsworth]

Griswold v. Connecticut was undoubtedly unconstitutional. It asserted that state governments had to respect the "right to privacy," even though the Constitution does not justify the ruling.

There are two arguments in favor of the ruling; the first is that there is a right to privacy in the Bill of Rights (specifically, the Ninth Amendment), and the second is that there is a right to privacy under substantive due process. Both arguments were used by different Justices in Griswold, but both, as pointed out by Hugo Black and Potter Stewart, were incorrect.

First, we may consider the Bill of Rights. The first eight Amendments do not contain any mention of the right to privacy. Justices have looked for "penumbras" of the Fourth Amendment, but a "penumbra" is not a part of the original amendment, instead being a judicial innovation. I quote Justice Black's dissent:

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.... 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."

Thus, the only possible justification for a right to privacy under the Bill of Rights is the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Supposedly, one of these "other [rights]" is the right to privacy. The argument is very weak, as the Ninth Amendment is only a rule of construction, not a grounds for asserting new rights. But for the sake of argument, let us accept that the Ninth Amendment does indeed protect a "right to privacy."

It has long been accepted that the Bill of Rights does not, in and of itself, apply to the states. In Barron v. Baltimore, John Marshall ruled that a provision of the Constitution only applies to the federal government, unless expressly indicated otherwise. However, the Fourteenth Amendment does indeed apply the Bill of Rights to the states. In fact, that was the very intention of the Fourteenth Amendment's privileges and immunities clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

However, the entirety of the first ten amendments are not "incorporated," or applied to the states. Instead, incorporation extends only to the first eight amendments. This was, and is, the original meaning of the privileges and immunities clause:

The privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States ... These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment. (Congressman John Bingham, author of the privileges and immunities clause)

Thus, any incorporation under the privileges and immunities clause must extend only to the first eight Amendments. Even if the Ninth Amendment supposedly protects a right to privacy (a very difficult assertion to sustain), that protection does not apply at the state level, because the Ninth Amendment was never incorporated.

Hence, the only other possible justification for a "right to privacy" at the state level is the doctrine of substantive due process. However, "due process" has always been seen as a procedural protection against executive, and even judicial tyranny. The notion that a legislature can somehow deny due process is an innovation of the modern judiciary. Since the promulgation of the Magna Carta, "due process of law" has never been construed to equate to "substantive due process." Rather, the notion that there is such a thing as substantive due process was conjured up, out of thin air, by Chief Justice Taney in Dred Scott v. Sanford. There was no precedent for that decision, and such a definition of "due process" contradicts the plain and original meaning of the Framers of that amendment.

Consequently, we arrive at the conclusion that neither the Bill of Rights as incorporated by the privileges and immunities clause, nor the protection of due process, gives rise to a "right to privacy." There is no such right in the Constitution. True, there are specific protections that in some cases relate to privacy:

Such, for example, is the Fourth 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 ndly 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. (Hugo Black)

Therefore, Griswold v. Connecticut was incorrectly decided, and should be overturned. Whether it was "right for the country" is irrelevant.

[The Duke]

Emsworth quotes my favorite SC opinion.   I am pleased by this.

As someone who believes that every woman had ought to have access to birth control, funded by the government if necessary, I must say that Griswold is a bit silly in its blatant disregard for basic Constitutional Law.

[I spent the winter writing songs about getting better]

No but it really doesn't matter since no state is dumb enough to outlaw birth control today anyway. Of course since such a law would have to be passed to overturn it, it will never be overturned.

[CARLHAYDEN]

Griswold v. Connecticut was undoubtedly unconstitutional. It asserted that state governments had to respect the "right to privacy," even though the Constitution does not justify the ruling.

There are two arguments in favor of the ruling; the first is that there is a right to privacy in the Bill of Rights (specifically, the Ninth Amendment), and the second is that there is a right to privacy under substantive due process. Both arguments were used by different Justices in Griswold, but both, as pointed out by Hugo Black and Potter Stewart, were incorrect.

First, we may consider the Bill of Rights. The first eight Amendments do not contain any mention of the right to privacy. Justices have looked for "penumbras" of the Fourth Amendment, but a "penumbra" is not a part of the original amendment, instead being a judicial innovation. I quote Justice Black's dissent:

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.... 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."

Thus, the only possible justification for a right to privacy under the Bill of Rights is the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Supposedly, one of these "other [rights]" is the right to privacy. The argument is very weak, as the Ninth Amendment is only a rule of construction, not a grounds for asserting new rights. But for the sake of argument, let us accept that the Ninth Amendment does indeed protect a "right to privacy."

It has long been accepted that the Bill of Rights does not, in and of itself, apply to the states. In Barron v. Baltimore, John Marshall ruled that a provision of the Constitution only applies to the federal government, unless expressly indicated otherwise. However, the Fourteenth Amendment does indeed apply the Bill of Rights to the states. In fact, that was the very intention of the Fourteenth Amendment's privileges and immunities clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

However, the entirety of the first ten amendments are not "incorporated," or applied to the states. Instead, incorporation extends only to the first eight amendments. This was, and is, the original meaning of the privileges and immunities clause:

The privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States ... These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment. (Congressman John Bingham, author of the privileges and immunities clause)

Thus, any incorporation under the privileges and immunities clause must extend only to the first eight Amendments. Even if the Ninth Amendment supposedly protects a right to privacy (a very difficult assertion to sustain), that protection does not apply at the state level, because the Ninth Amendment was never incorporated.

Hence, the only other possible justification for a "right to privacy" at the state level is the doctrine of substantive due process. However, "due process" has always been seen as a procedural protection against executive, and even judicial tyranny. The notion that a legislature can somehow deny due process is an innovation of the modern judiciary. Since the promulgation of the Magna Carta, "due process of law" has never been construed to equate to "substantive due process." Rather, the notion that there is such a thing as substantive due process was conjured up, out of thin air, by Chief Justice Taney in Dred Scott v. Sanford. There was no precedent for that decision, and such a definition of "due process" contradicts the plain and original meaning of the Framers of that amendment.

Consequently, we arrive at the conclusion that neither the Bill of Rights as incorporated by the privileges and immunities clause, nor the protection of due process, gives rise to a "right to privacy." There is no such right in the Constitution. True, there are specific protections that in some cases relate to privacy:

Such, for example, is the Fourth 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 ndly 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. (Hugo Black)

Therefore, Griswold v. Connecticut was incorrectly decided, and should be overturned. Whether it was "right for the country" is irrelevant.

 

Once again a very fine explanation.

You have a very good grasp of constitutional law.

What I really find hysterical about the decision was weasly way the majority in the case 'found" an "emenation" of a "penumbra."

[Schmitz in 1972]

Therefore, Griswold v. Connecticut was incorrectly decided, and should be overturned. Whether it was "right for the country" is irrelevant.

That one statement applies to so many more cases besides Griswold v. Connecticut. If the Supreme Court would only agree that "right for the country" is irrelevant, the United States would be in exponentially better shape.

[CARLHAYDEN]

So, the constitution is just a blank check to 9 would be dictators?

Why bother with a President, a Congress, elections etc. when we can be rules by the whims of 9 would be dictators?

[Schmitz in 1972]

So, the constitution is just a blank check to 9 would be dictators?

Why bother with a President, a Congress, elections etc. when we can be rules by the whims of 9 would be dictators?

Welcome to the grim reality of the current state of America

[CARLHAYDEN]

So, the constitution is just a blank check to 9 would be dictators?

Why bother with a President, a Congress, elections etc. when we can be rules by the whims of 9 would be dictators?

Welcome to the grim reality of the current state of America

Which is why we need to get a majority on the Supreme Court that will follow the constitution, not their own whims.

[opebo]

Hah, you constitution worshipers are completely failing to recognize your own activism.

Of course there is a right to privacy in there - if not, what is the document worth.  (answer, not much.)

[nclib]

Griswold vs. Connecticut was undoubtedly right for the country.

As far as constitutional issues are concerned, the right to privacy is protcted by the 9th Amendment.

[Emsworth]

As far as constitutional issues are concerned, the right to privacy is protcted by the 9th Amendment.

I disagree, as indicated in my post above. The Ninth Amendment is only a rule of construction, not a substantive guarantee. In and of itself, it cannot be used as justification for the existence of rights.

But even if we assume that the Ninth Amendment protects the right to privacy, that Amendment does not apply to the states. It was never incorporated under the Fourteenth Amendment; incorporation extends only to the first eight amendments.

[A18]

I would suggest ... passing an amendment dealing with the issue.

Awful idea, and I would oppose such an amendment even more fervently than I would oppose a state law banning contraceptives. The nation should not be setting social policy for the 50 states.

[nini2287]

I would suggest ... passing an amendment dealing with the issue.

Awful idea, and I would oppose such an amendment even more fervently than I would oppose a state law banning contraceptives. The nation should not be setting social policy for the 50 states.

The amendment would need 3/4th passage of the states so therefore it would require a near consensus.