Supreme Court
of the United States
Estelle T.
GRISWOLD et al. Appellants,
v.
STATE OF
CONNECTICUT.
No. 496.
Argued March
29, 1965.
Decided June
7, 1965.
Defendants were convicted of violating the Connecticut birth control law. The
Circuit Court in the Sixth Circuit, Connecticut, rendered judgments, and the
defendants appealed. The Appellate Division of the Circuit Court affirmed, and
defendants appealed. The Connecticut Supreme Court of Errors,
151 Conn. 544, 200 A.2d 479, affirmed, and the defendants appealed. The
Supreme Court, Mr. Justice Douglas, held that the Connecticut law forbidding use
of contraceptives unconstitutionally intrudes upon the right of marital privacy.
Reversed.
Mr.
Justice Black and Mr. Justice Stewart dissented.
West
Headnotes
[1]
KeyCite Notes
92
Constitutional Law
92II
Construction, Operation, and Enforcement of Constitutional Provisions
92k41
Persons Entitled to Raise Constitutional Questions
92k42.1
Particular Statutes or Actions Attacked
92k42.1(3)
k. Crime and Punishment.
Most Cited Cases
(Formerly
92k42)
Planned Parenthood League's executive director and medical director who had been
convicted as accessories for giving information, instruction, and medical advice
to married persons as to means of preventing conception had standing to question
constitutionally of Connecticut law forbidding use of contraceptives.
C.G.S.A. §§ 53-32,
54-196;
U.S.C.A.Const. art. 3, § 1 et seq.
[2]
KeyCite Notes
92
Constitutional Law
92III
Distribution of Governmental Powers and Functions
92III(B)
Judicial Powers and Functions
92k70
Encroachment on Legislature
92k70.3
Inquiry Into Motive, Policy, Wisdom, or Justice of Legislation
92k70.3(4)
k. Wisdom.
Most Cited Cases
(Formerly
92k70(3))
The
Supreme Court does not sit as a super-legislature to determine the wisdom, need,
and propriety of laws that touch economic problems, business affairs, or social
conditions.
[3]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k90
Freedom of Speech and of the Press
92k90(1)
k. In General.
Most Cited Cases
(Formerly
92k90)
The
state may not, consistently with the spirit of the First Amendment, contract the
spectrum of available knowledge.
U.S.C.A.Const. Amend. 1.
[4]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k90
Freedom of Speech and of the Press
92k90(2)
k. "Press", "Speech" and "Freedom" Defined.
Most Cited Cases
(Formerly
92k90)
The
right of freedom of speech and press includes not only right to utter or to
print, but right to distribute, right to receive, right to read and freedom of
inquiry, freedom of thought, and freedom to teach.
U.S.C.A.Const. Amend. 1.
[5]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k82
Constitutional Guaranties in General
92k82(6)
Particular Rights, Limitations, and Applications
92k82(7)
k. Privacy in General.
Most Cited Cases
(Formerly
92k82)
The
First Amendment has a penumbra where privacy is protected from governmental
intrusion.
U.S.C.A.Const. Amend. 1.
[6]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k91
k. Right of Assembly and Petition.
Most Cited Cases
The
right of assembly extends to all irrespective of their race or ideology.
U.S.C.A.Const. Amend. 1.
[7]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k91
k. Right of Assembly and Petition.
Most Cited Cases
The
right of "association," like the right of "belief," is more than the right to
attend a meeting; it includes the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by other
lawful means; association in that context is a form of expression of opinion;
and while it is not expressly included in the First Amendment its existence is
necessary in making express guarantees fully meaningful.
U.S.C.A.Const. Amend. 1.
[8]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k82
Constitutional Guaranties in General
92k82(6)
Particular Rights, Limitations, and Applications
92k82(7)
k. Privacy in General.
Most Cited Cases
(Formerly
92k82)
Specific guarantees in the Bill of Rights have penumbras; one of these penumbras
is privacy.
U.S.C.A.Const. Amends. 1,
3,
4,
5,
9,
14.
[9]
KeyCite Notes
92
Constitutional Law
92V
Personal, Civil and Political Rights
92k82
Constitutional Guaranties in General
92k82(4)
k. Vagueness and Overbreadth in Restriction.
Most Cited Cases
(Formerly
92k82)
A
governmental purpose to control or prevent activities constitutionally subject
to state regulation may not be achieved by means which sweep unnecessarily
broadly and thereby invade area of protected freedom.
[10]
KeyCite Notes
4
Abortion and Birth Control
4k1.20
Constitutional and Statutory Provisions
4k1.30
k. Validity of Statute.
Most Cited Cases
(Formerly
4k1)
92
Constitutional Law
92XII
Due Process of Law
92k274
Deprivation of Personal Rights in General
92k274(5)
k. Privacy; Marriage, Family, and Sexual Matters.
Most Cited Cases
(Formerly
92k274(2), 92k274)
Connecticut law forbidding use of contraceptives unconstitutionally intrudes
upon the right of marital privacy.
C.G.S.A. § 53-32;
U.S.C.A.Const. Amends. 1,
3,
4,
5,
9,
14.
**1679
*479
Thomas I. Emerson, New Haven, Conn., for appellants.
Joseph
B. Clark, New Haven, Conn., for appellee.
*480
Mr. Justice DOUGLAS delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of
Connecticut. Appellant Buxton is a licensed physician and a professor at the
Yale Medical School who served as Medical Director for the League at its Center
in New Haven--a center open and operating from November 1 to November 10, 1961,
when appellants were arrested.
They
gave information, instruction, and medical advice to married persons as to the
means of preventing conception. They examined the wife and prescribed the best
contraceptive device or material for her use. Fees were usually charged,
although some couples were serviced free.
The
statutes whose constitutionality is involved in this appeal are
ss 53-- 32
and
54--196 of the General
Statutes
of Connecticut (1958 rev.). The former provides:
'Any
person who uses any drug, medicinal article or instrument for the purpose of
preventing conception shall be fined not less than fifty dollars or imprisoned
not less than sixty days nor more than one year or be both fined and
imprisoned.'
Section 54--196
provides:
'Any
person who assists, abets, counsels, causes, hires or commands another to commit
any offense may be prosecuted and punished as if he were the principal
offender.'
The
appellants were found guilty as accessories and fined $100 each, against the
claim that the accessory statute as so applied violated the Fourteenth
Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme
Court of Errors affirmed that judgment.
151 Conn. 544, 200 A.2d
479.
We noted probable jurisdiction.
379 U.S. 926, 85 S.Ct. 328,
13 L.Ed.2d 339.
*481
[1]
We
think that appellants have standing to raise the constitutional rights of the
married people with whom they had a professional relationship.
Tileston v. Ullman, 318
U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603,
is different, for there the plaintiff seeking to represent others asked for a
declaratory judgment. In that situation we thought that the requirements of
standing should be strict, lest the standards of 'case or controversy' in
Article III of the Constitution become blurred. Here those doubts
**1680
are removed by reason of a criminal conviction for serving married couples in
violation of an aiding-and-abetting statute. Certainly the accessory should have
standing to assert that the offense which he is charged with assisting is not,
or cannot constitutionally be a crime.
This
case is more akin to
Truax v. Raich, 239 U.S.
33, 36 S.Ct. 7, 60 L.Ed.
131,
where an employee was permitted to assert the rights of his employer; to
Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070,
where the owners of private schools were entitled to assert the rights of
potential pupils and their parents; and to
Barrows v. Jackson, 346
U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586,
where a white defendant, party to a racially restrictive covenant, who was being
sued for damages by the covenantors because she had conveyed her property to
Negroes, was allowed to raise the issue that enforcement of the covenant
violated the rights of prospective Negro purchasers to equal protection,
although no Negro was a party to the suit. And see
Meyer v. State of Nebraska,
262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042;
Adler v. Board of
Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517;
NAACP v. State of Alabama,
357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488;
NAACP v. Button, 371 U.S.
415, 83 S.Ct. 328, 9 L.Ed.2d 405.
The rights of husband and wife, pressed here, are likely to be diluted or
adversely affected unless those rights are considered in a suit involving those
who have this kind of confidential relation to them.
[2]
Coming
to the merits, we are met with a wide range of questions that implicate the Due
Process Clause of the Fourteenth Amendment. Overtones of some arguments
*482
suggest that
Lochner v. State of New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937,
should be our guide. But we decline that invitation as we did in
West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 57 S.Ct. 578, 81
L.Ed. 703;
Olsen v. State of Nebraska,
313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305;
Lincoln Federal Labor Union
v. Northwestern Co., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212;
Williamson v. Lee Optical
Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563;
Giboney v. Empire Storage
Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.
We do not sit as a super-legislature to determine the wisdom, need, and
propriety of laws that touch economic problems, business affairs, or social
conditions. This law, however, operates directly on an intimate relation of
husband and wife and their physician's role in one aspect of that relation.
[3]
[4]
The
association of people is not mentioned in the Constitution nor in the Bill of
Rights. The right to educate a child in a school of the parents' choice--whether
public or private or parochial--is also not mentioned. Nor is the right to study
any particular subject or any foreign language. Yet the First Amendment has been
construed to include certain of those rights.
By
Pierce v. Society of Sisters, supra, the right to educate one's children as one
chooses is made applicable to the States by the force of the First and
Fourteenth Amendments. By Meyer v. State of Nebraska, supra, the same dignity is
given the right to study the German language in a private school. In other
words, the State may not, consistently with the spirit of the First Amendment,
contract the spectrum of available knowledge. The right of freedom of speech and
press includes not only the right to utter or to print, but the right to
distribute, the right to receive, the right to read (Martin
v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313)
and freedom of inquiry, freedom of thought, and freedom to teach (see
Wieman v. Updegraff, 344
U.S. 183, 195, 73 S.Ct. 215, 220, 97 L.Ed. 216)--indeed
the freedom of the entire university community.
Sweezy v. State of New
Hampshire, 354 U.S. 234, 249--250, 261--263, 77 S.Ct. 1203, 1211, 1217--1218, 1
L.Ed.2d 1311;
**1681
Barenblatt v. United
States, 360 U.S. 109, 112, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115;
Baggett v. Bullitt, 377
U.S. 360, 369, 84 S.Ct. 1316, 1321, 12 L.Ed.2d 377.
Without
*483
those peripheral rights the specific rights would be less secure. And so we
reaffirm the principle of the Pierce and the Meyer cases.
[5]
In
NAACP v. State of Alabama,
357 U.S. 449, 462, 78 S.Ct. 1163, 1172,
we protected the 'freedom to associate and privacy in one's associations,'
noting that freedom of association was a peripheral First Amendment right.
Disclosure of membership lists of a constitutionally valid association, we held,
was invalid 'as entailing the likelihood of a substantial restraint upon the
exercise by petitioner's members of their right to freedom of association.'
Ibid. In other words, the First Amendment has a penumbra where privacy is
protected from governmental intrusion. In like context, we have protected forms
of 'association' that are not political in the customary sense but pertain to
the social, legal, and economic benefit of the members.
NAACP v. Button, 371 U.S.
415, 430--431, 83 S.Ct. 328, 336--337.
In
Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796,
we held it not permissible to bar a lawyer from practice, because he had once
been a member of the Communist Party. The man's 'association with that Party'
was not shown to be 'anything more than a political faith in a political party'
(id.,
at 244, 77 S.Ct. at 759)
and was not action of a kind proving bad moral character.
Id., at 245--246, 77 S.Ct.
at 759--760.
[6]
[7]
Those
cases involved more than the 'right of assembly'--a right that extends to all
irrespective of their race or idealogy.
De Jonge v. State of
Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.
The right of 'association,' like the right of belief (West
Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178),
is more than the right to attend a meeting; it includes the right to express
one's attitudes or philosophies by membership in a group or by affiliation with
it or by other lawful means. Association in that context is a form of expression
of opinion; and while it is not expressly included in the First Amendment its
existence is necessary in making the express guarantees fully meaningful.
*484
[8]
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. See
Poe v. Ullman, 367 U.S.
497, 516-- 522, 81 S.Ct. 1752, 6 L.Ed.2d 989
(dissenting opinion). Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one, as we have
seen. The Third Amendment in its prohibition against the quartering of soldiers
'in any house' in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth Amendment
provides: 'The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.'
The
Fourth and Fifth Amendments were described in
Boyd v. United States, 116
U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746,
as protection against all governmental invasions 'of the sanctity of a man's
home and the privacies of life.'
[FN*]
**1682
We
recently referred
*485
in
Mapp v. Ohio, 367 U.S. 643,
656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081,
to the Fourth Amendment as creating a 'right to privacy, no less important than
any other right carefully and particularly reserved to the people.' See Beaney,
The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right
to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).
FN*
The Court said in full about this right of privacy:
'The
principles laid down in this opinion (by Lord Camden in Entick v. Carrington, 19
How.St.Tr. 1029) affect the very essence of constitutional liberty and security.
They reach further than the concrete form of the case then before the court,
with its adventitious circumstances; they apply to all invasions on the part of
the government and its employes of the sanctity of a man's home and the
privacies of life. It is not the breaking of his doors, and the rummaging of his
drawers, that constitutes the essence of the offense; but it is the invasion of
his indefeasible right of personal security, personal liberty and private
property, where that right has never been forfeited by his conviction of some
public offense,--it is the invasion of this sacred right which underlies and
constitutes the essence of Lord Camden's judgment. Breaking into a house and
opening boxes and drawers are circumstances of aggravation; but any forcible and
compulsory extortion of a man's own testimony, or of his private papers to be
used as evidence to convict him of crime, or to forfeit his goods, is within the
condemnation of that judgment. In this regard the fourth and fifth amendments
run almost into each other.'
116 U.S., at 630, 6 S.Ct.,
at 532.
We
have had many controversies over these penumbral rights of 'privacy and repose.'
See, e.g.,
Breard v. City of
Alexandria, 341 U.S. 622, 626, 644, 71 S.Ct. 920, 923, 933, 95 L.Ed. 1233;
Public Utilities Comm. v.
Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068;
Monroe v. Pape, 365 U.S.
167, 81 S.Ct. 473, 5 L.Ed.2d 492;
Lanza v. State of New York,
370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384;
Frank v. State of Maryland,
359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877;
Skinner v. State of
Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655.
These cases bear witness that the right of privacy which presses for recognition
here is a legitimate one.
[9]
[10]
The
present case, then, concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees. And it concerns a law
which, in forbidding the use of contraceptives rather than regulating their
manufacture or sale, seeks to achieve its goals by means having a maximum
destructive impact upon that relationship. Such a law cannot stand in light of
the familiar principle, so often applied by this Court, that a 'governmental
purpose to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.'
NAACP v. Alabama, 377 U.S.
288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325.
Would we allow the police to search the sacred precincts of marital bedrooms for
telltale signs of the use of contraceptives? The
*486
very idea is repulsive to the notions of privacy surrounding the marriage
relationship.
We
deal with a right of privacy older than the Bill of Rights--older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in our
prior decisions.
Reversed.
Mr.
Justice GOLDBERG, whom THE CHIEF JUSTICE and Mr. Justice BRENNAN join,
concurring.
I
agree with the Court that Connecticut's birth-control law unconstitutionally
intrudes upon the right of marital privacy, and I join in its opinion and
judgment. Although I have not accepted the view that 'due process' as used in
the Fourteenth Amendment includes all of the first eight Amendments (see my
concurring opinion in
**1683
Pointer v. Texas, 380 U.S.
400, 410, 85 S.Ct. 1065, 1071, 13 L.Ed.2d 923,
and the dissenting opinion of Mr. Justice Brennan in
Cohen v. Hurley, 366 U.S.
117, 154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156),
I do agree that the concept of liberty protects those personal rights that are
fundamental, and is not confined to the specific terms of the Bill of Rights. My
conclusion that the concept of liberty is not so restricted and that it embraces
the right of marital privacy though that right is not mentioned explicitly in
the Constitution
[FN1]
is supported both by numerous*487
decisions of this Court, referred to in the Court's opinion, and by the language
and history of the Ninth Amendment. In reaching the conclusion that the right of
marital privacy is protected, as being within the protected penumbra of specific
guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante,
at 1681. I add these words to emphasize the relevance of that Amendment to the
Court's holding.
FN1.
My Brother STEWART dissents on the ground that he 'can find no * * * general
right of privacy in the Bill of Rights, in any other part of the Constitution,
or in any case ever before decided by this Court.' Post, at 1706. He would
require a more explicit guarantee than the one which the Court derives from
several constitutional amendments. This Court, however, has never held that the
Bill of Rights or the Fourteenth Amendment protects only those rights that the
Constitution specifically mentions by name. See, e.g.,
Bolling v. Sharpe, 347 U.S.
497, 74 S.Ct. 693, 98 L.Ed. 884;
Aptheker v. Secretary of
State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992;
Kent v. Dulles, 357 U.S.
116, 78 S.Ct. 1113, 2 L.Ed.2d
1204;
Carrington v. Rash, 380
U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675;
Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796;
NAACP v. Alabama, 360 U.S.
240, 79 S.Ct. 1001, 3 L.Ed.2d 1205;
Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070;
Meyer v. State of Nebraska,
262 U.S. 390, 43 S.Ct. 625.
To the contrary, this Court, for example, in Bolling v. Sharpe, supra, while
recognizing that the Fifth Amendment does not contain the 'explicit safeguard'
of an equal protection clause,
id., 347 U.S. at 499, 74
S.Ct. at 694,
nevertheless derived an equal protection principle from that Amendment's Due
Process Clause. And in Schware v. Board of Bar Examiners, supra, the Court held
that the Fourteenth Amendment protects from arbitrary state action the right to
pursue an occupation, such as the practice of law.
The
Court stated many years ago that the Due Process Clause protects those liberties
that are 'so rooted in the traditions and conscience of our people as to be
ranked as fundamental.'
Snyder v. Com. of
Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674.
In
Gitlow v. People of State
of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138,
the Court said:
'For
present purposes we may and do assume that freedom of speech and of the
press--which are protected by the First Amendment from abridgment by Congress--
are among the fundamental personal rights and 'liberties' protected by the due
process clause of the Fourteenth Amendment from impairment by the States.'
(Emphasis added.)
*488
And, in
Meyer v. State of Nebraska,
262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042,
the Court, referring to the Fourteenth Amendment, stated:
'While
this court has not attempted to define with exactness the liberty thus
guaranteed, the term has received much consideration and some of the included
things have been definitely stated. Without doubt, it denotes not merely freedom
from bodily restraint but also (for example,) the right * * * to marry,
establish a home and bring up children * * *.'
This
Court, in a series of decisions, has held that the Fourteenth Amendment absorbs
and applies to the States those specifics of the first eight amendments which
express fundamental personal
**1684
rights.
[FN2]
The language and history of the Ninth Amendment reveal that the Framers of the
Constitution believed that there are additional fundamental rights, protected
from governmental infringement, which exist alongside those fundamental rights
specifically mentioned in the first eight constitutional amendments.
FN2.
See, e.g.,
Chicago, B. & Q.R. Co. v.
City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979;
Gitlow v. New York, supra;
Cantwell v. State of
Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213;
Wolf v. People of State of
Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782;
Robinson v. State of
California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758;
Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799;
Malloy v. Hogan, 378 U.S.
1, 84 S.Ct. 1489, 12 L.Ed.2d 653;
Pointer v. Texas, supra;
Griffin v. California, 380
U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.
The
Ninth Amendment reads, 'The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.' The
Amendment is almost entirely the work of James Madison. It was introduced in
Congress by him and passed the House and Senate with little or no debate and
virtually no change in language. It was proffered to quiet expressed fears that
a bill of specifically enumerated rights
[FN3]
could not be sufficiently broad to cover all essential
*489
rights and that the specific mention of certain rights would be interpreted as a
denial that others were protected.
[FN4]
FN3.
Madison himself had previously pointed out the dangers of inaccuracy resulting
from the fact that 'no language is so copious as to supply words and phrases for
every complex idea.' The Federalist, No. 37 (Cooke ed. 1961), at 236.
FN4.
Alexander Hamilton was opposed to a bill of rights on the ground that it was
unnecessary because the Federal Government was a government of delegated powers
and it was not granted the power to intrude upon fundamental personal rights.
The Federalist, No. 84 (Cooke ed. 1961), at 578--579. He also argued,
'I go
further, and affirm that bills of rights, in the sense and in the extent in
which they are contended for, are not only unnecessary in the proposed
constitution, but would even be dangerous. They would contain various exceptions
to powers which are not granted; and on this very account, would afford a
colourable pretext to claim more than were granted. For why declare that things
shall not be done which there is no power to do? Why for instance, should it be
said, that the liberty of the press shall not be restrained, when no power is
given by which restrictions may be imposed? I will not contend that such a
provision would confer a regulating power; but it is evident that it would
furnish, to men disposed
to usurp, a
plausible pretence for claiming that power.' Id., at 579. The Ninth Amendment
and the Tenth Amendment, which provides, 'The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people,' were apparently also designed in
part to meet the above-quoted argument of Hamilton.
In
presenting the proposed Amendment, Madison said:
'It
has been objected also against a bill of rights, that, by enumerating particular
exceptions to the grant of power, it would disparage those rights which were not
placed in that enumeration; and it might follow by implication, that those
rights which were not singled out, were intended to be assigned into the hands
of the General Government, and were consequently insecure. This is one of the
most plausible arguments I have ever heard urged against the admission of a bill
of rights into this system; but, I conceive, that it may be guarded against. I
have attempted it, as gentlemen may see by turning to the
*490
last clause of the fourth resolution (the Ninth Amendment).' I Annals of
Congress 439 (Gales and Seaton ed. 1834).
**1685
Mr. Justice Story wrote of this argument against a bill of rights and the
meaning of the Ninth Amendment:
'In
regard to * * * (a) suggestion, that the affirmance of certain rights might
disparage others, or might lead to argumentative implications in favor of other
powers, it might be sufficient to say that such a course of reasoning could
never be sustained upon any solid basis * * *. But a conclusive answer is, that
such an attempt may be interdicted (as it has been) by a positive declaration in
such a bill of rights that the enumeration of certain rights shall not be
construed to deny or disparage others retained by the people.' II Story,
Commentaries on the Constitution of the United States 626--627 (5th
ed. 1891).
He
further stated, referring to the Ninth Amendment:
'This
clause was manifestly introduced to prevent any perverse or ingenious
misapplication of the wellknown maxim, that an affirmation in particular cases
implies a negation in all others; and, e converso, that a negation in particular
cases implies an affirmation in all others.' Id., at 651.
These
statements of Madison and Story make clear that the Framers did not intend that
the first eight amendments be construed to exhaust the basic and fundamental
rights which the Constitution guaranteed to the people.
[FN5]
FN5.
The Tenth Amendment similarly made clear that the States and the people retained
all those powers not expressly delegated to the Federal
Government.
While
this Court has had little occasion to interpret the Ninth Amendment,
[FN6]
'(i)t cannot be presumed that any
*491
clause in the constitution is intended to be without effect.'
Marbury v. Madison, 1
Cranch 137, 174, 2 L.Ed. 60.
In interpreting the Constitution, 'real effect should be given to all the words
it uses.'
Myers v. United States, 272
U.S. 52, 151, 47 S.Ct. 21, 37, 71 L.Ed. 160.
The Ninth Amendment to the Constitution may be regarded by some as a recent
discovery and may be forgotten by others, but since 1791 it has been a basic
part of the Constitution which we are sworn to uphold. To hold that a right so
basic and fundamental and so deeprooted in our society as the right of privacy
in marriage may be infringed because that right is not guaranteed in so many
words by the first eight amendments to the Constitution is to ignore the Ninth
Amendment and to give it no effect whatsoever. Moreover, a judicial construction
that this fundamental right is not protected by the Constitution because
**1686
it
is not mentioned in explicit terms by one of the first eight amendments or
elsewhere in the Constitution would violate the Ninth Amendment, which
specifically states that
*492
'(t)he enumeration in the Constitution, of certain rights shall not be construed
to deny or disparage others retained by the people.' (Emphasis added.)
FN6.
This Amendment has been referred to as 'The Forgotten Ninth Amendment,' in a
book with that title by Bennett B. Patterson (1955). Other commentary on the
Ninth Amendment includes Redlich, Are There 'Certain Rights * * * Retained by
the People'? 37 N.Y.U.L.Rev. 787 (1962), and Kelsey, The Ninth Amendment of the
Federal Constitution, 11 Ind.L.J. 309 (1936). As far as I am aware, until today
this Court has referred to the Ninth Amendment only in
United Public Workers v.
Mitchell, 330 U.S. 75, 94--95, 67 S.Ct. 556, 566--567, 91 L.Ed. 754;
Tennessee Electric Power
Co. v. TVA, 306 U.S. 118, 143--144, 59 S.Ct. 366, 372, 83 L.Ed. 543;
and
Ashwander v. TVA, 297 U.S.
288, 330--331, 56 S.Ct. 466, 475, 80 L.Ed. 688.
See also
Calder v. Bull, 3 Dall.
386, 388, 1 L.Ed. 648;
Loan Ass'n v. City of
Topeka, 20 Wall. 655, 662--663, 22 L.Ed. 455.
In
United Public Workers v.
Mitchell, supra, 330 U.S. at 94--95, 67 S.Ct. at 567,
the Court stated: 'We accept appellant's contention that the nature of political
rights reserved to the people by the Ninth and Tenth Amendments (is) involved.
The right claimed as inviolate may be stated as the right of a citizen to act as
a party official or worker to further his own political views. Thus we have a
measure of interference by the Hatch Act and the Rules with what otherwise would
be the freedom of the civil
servant under
the First, Ninth and Tenth Amendments. And, if we look upon due process as a
guarantee of freedom in those fields, there is a corresponding impairment of
that right under the Fifth Amendment.'
A
dissenting opinion suggests that my interpretation of the Ninth Amendment
somehow 'broaden(s) the powers of this Court.' Post, at 1701. With all due
respect, I believe that it misses the import of what I am saying. I do not take
the position of my Brother Black in his dissent in
Adamson v. People of State
of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903,
that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and
I do not mean to imply that the Ninth Amendment is applied against the States by
the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an
independent source of rights protected from infringement by either the States or
the Federal Government. Rather, the Ninth Amendment shows a belief of the
Constitution's authors that fundamental rights exist that are not expressly
enumerated in the first eight amendments and an intent that the list of rights
included there not be deemed exhaustive. As any student of this Court's opinions
knows, this Court has held, often unanimously, that the Fifth and Fourteenth
Amendments protect certain fundamental personal liberties from abridgment by the
Federal Government or the States. See, e.g.,
Bolling v.
Sharpe, 347 U.S. 497, 74
S.Ct. 693;
Aptheker v. Secretary of
State, 378 U.S. 500, 84 S.Ct. 1659;
Kent v. Dulles, 357 U.S.
116, 78 S.Ct. 1113;
Cantwell v. State of
Connecticut, 310 U.S. 296, 60 S.Ct. 900;
NAACP v. State of Alabama,
357 U.S. 449, 78 S.Ct. 1163;
Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792;
New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.
The Ninth Amendment simply shows the intent of the Constitution's authors that
other fundamental personal rights should not be denied such protection or
disparaged in any other way simply because they are not specifically listed in
the first eight constitutional amendments. I do not see how this broadens the
authority
*493
of the Court; rather it serves to support what this Court has been doing in
protecting fundamental rights.
Nor
am I
turning somersaults with history in arguing that the Ninth Amendment is relevant
in a case dealing with a State's infringement of a fundamental right. While the
Ninth Amendment--and indeed the entire Bill of Rights--originally concerned
restrictions upon federal power, the subsequently enacted Fourteenth Amendment
prohibits the States as well from abridging fundamental personal liberties. And,
the Ninth Amendment, in indicating that not all such liberties are specifically
mentioned in the first eight amendments, is surely relevant in showing the
existence of other fundamental personal rights, now protected from state, as
well as federal, infringement. In sum, the Ninth Amendment simply lends strong
support to the view that the 'liberty' protected by the Fifth And Fourteenth
Amendments from infringement by the Federal Government or the States is not
restricted to rights specifically mentioned in the first eight amendments. Cf.
United Public Workers v.
Mitchell, 330 U.S. 75, 94--95, 67 S.Ct. 556, 566, 567, 91 L.Ed. 754.
In
determining which rights are fundamental, judges are not left at large to decide
cases in light of their personal and private notions. Rather, they must look to
the 'traditions and (collective) conscience of our people' to determine whether
a principle is 'so rooted (there) * * * as to be ranked as fundamental.'
Snyder v. Com. of
Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332.
The inquiry is whether a right involved 'is of such a character that it cannot
be denied without violating those 'fundamental principles of liberty and justice
**1687
which lie at the base of all our civil and political institutions' * * *.'
Powell v. State of Alabama,
287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158.
'Liberty' also 'gains content from the emanations of * * * specific
(constitutional) guarantees' and 'from experience with the requirements of a
free society.'
*494
Poe v. Ullman, 367 U.S.
497, 517, 81 S.Ct. 1752, 1763, 6 L.Ed.2d 989
(dissenting opinion of Mr. Justice Douglas).
[FN7]
FN7.
In light of the tests enunciated in these cases it cannot be said that a judge's
responsibility to determine whether a right is basic and fundamental in this
sense vests him with unrestricted personal discretion. In fact, a hesitancy to
allow too broad a discretion was a substantial reason leading me to conclude in
Pointer v. Texas, supra,
380 U.S. at 413--414, 85 S.Ct. at 1073,
that those rights absorbed by the Fourteenth Amendment and applied to the States
because they are fundamental apply with equal force and to the same extent
against both federal and state governments. In Pointer I said that the contrary
view would require 'this Court to make the extremely subjective and excessively
discretionary determination as to whether a practice, forbidden the Federal
Government by a fundamental constitutional guarantee, is, as viewed in the
factual circumstances surrounding each individual case, sufficiently repugnant
to the notion of due process as to be forbidden the States.'
Id., at 413, 85 S.Ct. at
1073.
I
agree fully with the Court that, applying these tests, the right of privacy is a
fundamental personal right, emanating 'from the totality of the constitutional
scheme under which we live.' Id., at 521,
81 S.Ct. at 1765.
Mr. Justice Brandeis, dissenting in
Olmstead v. United States,
277
U.S. 438, 478, 48 S.Ct.
564, 572, 72 L.Ed. 944,
comprehensively summarized the principles underlying the Constitution's
guarantees of privacy:
'The
protection guaranteed by the (Fourth and Fifth) amendments is much broader in
scope. The makers of our Constitution undertook to secure conditions favorable
to the pursuit of happiness. They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They knew that only a part of the
pain, pleasure and satisfactions of life are to be found in material things.
They sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the government, the
right to be let alone--the most comprehensive of rights and the right most
valued by civilized men.'
*495
The Connecticut statutes here involved deal with a particularly important and
sensitive area of privacy--that of the marital relation and the marital home.
This Court recognized in Meyer v. Nebraska, supra, that the right 'to marry,
establish a home and bring up children' was an essential part of the liberty
guaranteed by the Fourteenth Amendment.
262 U.S., at 399, 43 S.Ct.
at 626.
In
Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571,
the Court held unconstitutional an Oregon Act which forbade parents from sending
their children to private schools because such an act 'unreasonably interferes
with the liberty of parents and guardians to direct the upbringing and education
of children under their control.'
268 U.S., at 534--535, 45
S.Ct. at 573.
As this Court said in
Prince v. Massachusetts,
321 U.S. 158, at 166, 64 S.Ct. 438, at 442, 88 L.Ed. 645,
the Meyer and Pierce decisions 'have respected the private realm of family life
which the state cannot enter.'
I
agree with Mr. Justice Harlan's statement in his dissenting opinion in
Poe v. Ullman, 367 U.S.
497, 551--552, 81 S.Ct. 1752, 1781:
'Certainly the safeguarding of the home does not follow merely from the sanctity
of property rights. The home derives its pre-eminence 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
**1688
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.'
The
entire fabric of the Constitution and the purposes that clearly underlie its
specific guarantees demonstrate that the rights to marital privacy and to marry
and raise a family are of similar order and magnitude as the fundamental rights
specifically protected.
Although the Constitution does not speak in so many words of the right of
privacy in marriage, I cannot believe that it offers these fundamental rights no
protection. The fact that no particular provision of the Constitution
*496
explicitly forbids the State from disrupting the traditional relation of the
family--a relation as old and as fundamental as our entire civilization--surely
does not show that the Government was meant to have the power to do so. Rather,
as the Ninth Amendment expressly recognizes, there are fundamental personal
rights such as this one, which are protected from abridgment by the Government
though not specifically mentioned in the Constitution.
My
Brother STEWART, while characterizing the Connecticut birth control law as 'an
uncommonly silly law,' post, at 1705, would nevertheless let it stand on the
ground that it is not for the courts to "substitute their social and economic
beliefs for the judgment of legislative bodies, who are elected to pass laws."
Post, at 1705. Elsewhere, I have stated that '(w)hile I quite agree with Mr.
Justice Brandeis that * * * 'a * * * State may * * * serve as a laboratory; and
try novel social and economic experiments,'
New State Ice Co. v.
Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747
(dissenting opinion), I do not believe that this includes the power to
experiment with the fundamental liberties of citizens * * *.'
[FN8]
The vice of the dissenters' views is that it would permit such experimentation
by the States in the area of the fundamental personal rights of its citizens. I
cannot agree that the Constitution grants such power either to the States or to
the Federal Government.
FN8.
Pointer v. Texas, supra,
380 U.S. at 413, 85 S.Ct. at 1073.
See also the discussion of my Brother Douglas,
Poe v. Ullman, supra, 367
U.S. at 517--518, 81 S.Ct. at 1763
(dissenting opinion).
The
logic of the dissents would sanction federal or state legislation that seems to
me even more plainly unconstitutional than the statute before us. Surely the
Government, absent a showing of a compelling subordinating state interest, could
not decree that all husbands and wives must be sterilized after two children
have been born
*497
to them. Yet by their reasoning such an invasion of marital privacy would not be
subject to constitutional challenge because, while it might be 'silly,' no
provision of the Constitution specifically prevents the Government from
curtailing the marital right to bear children and raise a family. While it may
shock some of my Brethren that the Court today holds that the Constitution
protects the right of marital privacy, in my view it is far more shocking to
believe that the personal liberty guaranteed by the Constitution does not
include protection against such totalitarian limitation of family size, which is
at complete variance with our constitutional concepts. Yet, if upon a showing of
a slender basis of rationality, a law outlawing voluntary birth control by
married persons is valid, then, by the same reasoning, a law requiring
compulsory birth control also would seem to be valid. In my view, however, both
types of law would unjustifiably intrude upon rights of marital privacy which
are constitutionally protected.
In a
long series of cases this Court has held that where fundamental personal
liberties are involved, they may not be
**1689
abridged by the States simply on a showing that a regulatory statute has some
rational relationship to the effectuation of a proper state purpose. 'Where
there is a significant encroachment upon personal liberty, the State may prevail
only upon showing a subordinating interest which is compelling,'
Bates v. City of Little
Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480.
The law must be shown 'necessary, and not merely rationally related to, the
accomplishment of a permissible state policy.'
McLaughlin v. State of
Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222.
See
Schneider v. State of New
Jersey, Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155.
Although the Connecticut birth-control law obviously encroaches upon a
fundamental personal liberty, the State does not show that the law serves any
'subordinating (state) interest which is compelling' or that it is 'necessary *
* *
*498
to
the accomplishment of a permissible state policy.' The State, at most, argues
that there is some rational relation between this statute and what is admittedly
a legitimate subject of state concern--the discouraging of extra-marital
relations. It says that preventing the use of birth-control devices by married
persons helps prevent the indulgence by some in such extra-marital relations.
The rationality of this justification is dubious, particularly in light of the
admitted widespread availability to all persons in the State of Connecticut,
unmarried as well as married, of birth-control devices for the prevention of
disease, as distinguished from the prevention of conception, see
Tileston v. Ullman, 129
Conn. 84, 26 A.2d 582.
But, in any event, it is clear that the state interest in safeguarding marital
fidelity can be served by a more discriminately tailored statute, which does
not, like the present one, sweep unnecessarily broadly, reaching far beyond the
evil sought to be dealt with and intruding upon the privacy of all married
couples. See
Aptheker v. Secretary of
State, 378 U.S. 500, 514, 84 S.Ct. 1659, 1667;
NAACP v.
State of Alabama, 377 U.S.
288, 307--308, 84 S.Ct. 1302, 1313, 1314, 12 L.Ed.2d 325;
McLaughlin v. State of
Florida, supra, 379 U.S. at 196, 85 S.Ct. at 290.
Here, as elsewhere, '(p)recision of regulation must be the touchstone in an area
so closely touching our most precious freedoms.'
NAACP v. Button, 371 U.S.
415, 438, 83 S.Ct. 328, 340.
The State of Connecticut does have statutes, the constitutionality of which is
beyond doubt, which prohibit adultery and fornication. See Conn.Gen.Stat. ss
53-- 218, 53--219 et seq. These statutes demonstrate that means for achieving
the same basic purpose of protecting marital fidelity are available to
Connecticut without the need to 'invade the area of protected freedoms.' NAACP
v.
State of Alabama, supra,
377 U.S. at 307, 84 S.Ct. at 1314.
See
McLaughlin v. State of
Florida, supra, 379 U.S. at 196, 85 S.Ct. at 290.
Finally, it should be said of the Court's holding today that it in no way
interferes with a State's proper regulation
*499
of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his
dissenting opinion in
Poe v. Ullman, supra, 367
U.S. at 553, 81 S.Ct. at 1782.
'Adultery, homosexuality and the like are sexual intimacies which the State
forbids * * * but the intimacy of husband and wife is necessarily an essential
and accepted feature of the institution of marriage, an institution which the
State not only must allow, but which always and in every age it has fostered and
protected. It is one thing when the State exerts its power either to forbid
extra-marital sexuality * * * or to say who may marry, but it is quite another
when, having acknowledged a marriage and the intimacies inherent in it, it
undertakes to regulate by means of the criminal law the details of that
intimacy.'
**1690
In
sum, I believe that the right of privacy in the marital relation is fundamental
and basic--a personal right 'retained by the people' within the meaning of the
Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental
right, which is protected by the Fourteenth Amendment from infringement by the
States. I agree with the Court that petitioners' convictions must therefore be
reversed.
Mr.
Justice HARLAN, concurring in the judgment.
I
fully agree with the judgment of reversal, but find myself unable to join the
Court's opinion. The reason is that it seems to me to evince an approach to this
case very much like that taken by my Brothers BLACK and STEWART in dissent,
namely: the Due Process Clause of the Fourteenth Amendment does not touch this
Connecticut statute unless the enactment is found to violate some right assured
by the letter or penumbra of the Bill of Rights.
*500
In
other words, what I find implicit in the Court's opinion is that the
'incorporation' doctrine may be used to restrict the reach of Fourteenth
Amendment Due Process. For me this is just as unacceptable constitutional
doctrine as is the use of the 'incorporation' approach to impose upon the States
all the requirements of the Bill of Rights as found in the provisions of the
first eight amendments and in the decisions of this Court interpreting them.
See, e.g., my concurring opinions in
Pointer v. State of Texas,
380
U.S. 400, 408, 85 S.Ct.
1065, 1070, 13 L.Ed.2d 923,
and
Griffin v. California, 380
U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106,
and my dissenting opinion in
Poe v. Ullman, 367 U.S.
497, 522, at pp. 539--545,
81 S.Ct. 1752, 1774, 1778.
In my
view, the proper constitutional inquiry in this case is whether this Connecticut
statute infringes the Due Process Clause of the Fourteenth Amendment because the
enactment violates basic values 'implicit in the concept of ordered liberty,'
Palko v. State of
Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.
For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I
believe that it does. While the relevant inquiry may be aided by resort to one
or more of the provisions of the Bill of Rights, it is not dependent on them or
any of their radiations. The Due Process Clause of the Fourteenth Amendment
stands, in my opinion, on its own bottom.
A
further observation seems in order respecting the justification of my Brothers
BLACK and STEWART for their 'incorporation' approach to this case. Their
approach does not rest on historical reasons, which are of course wholly lacking
(see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The
Original Understanding, 2 Stan.L.Rev. 5 (1949)), but on the thesis that by
limiting the content of the Due Process Clause of the Fourteenth Amendment to
the protection of rights which can be found elsewhere in the Constitution, in
this instance in the Bill of Rights, judges will thus be confined to
'interpretation' of specific constitutional
*501
provisions, and will thereby be restrained from introducing their own notions of
constitutional right and wrong into the 'vague contours of the Due Process
Clause.'
Rochin v. People of State
of California, 342 U.S. 165, 170, 72 S.Ct. 205, 208, 96 L.Ed. 183.
While
I could not more heartily agree that judicial 'self restraint' is an
indispensable ingredient of sound constitutional adjudication, I do submit that
the formula suggested for achieving it is more hollow than real. 'Specific'
provisions of the Constitution, no less than 'due process,' lend themselves as
readily to 'personal' interpretations by judges whose constitutional outlook is
simply to keep the Constitution in supposed 'tune with the times' (post, p.
1702). Need one go further than to recall last Term's reapportionment cases,
**1691
Wesberry v. Sanders, 376
U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481,
and
Reynolds v. Sims, 377 U.S.
533, 84 S.Ct. 1362, 12 L.Ed.2d 506,
where a majority of the Court 'interpreted' 'by the People' (Art. I, s 2) and
'equal protection' (Amdt. 14) to command 'one person, one vote,' an
interpretation that was made in the face of irrefutable and still unanswered
history to the contrary? See my dissenting opinions in those cases,
376 U.S., at 20, 84 S.Ct.
at 536;
377 U.S., at 589, 84 S.Ct.
at 1395.
Judicial self-restraint will not, I suggest, be brought about in the 'due
process' area by the historically unfounded incorporation formula long advanced
by my Brother BLACK, and now in part espoused by my Brother STEWART. 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. See
Adamson v. People of State
of California, 332 U.S. 46, 59, 67 S.Ct. 1672, 91 L.Ed. 1903
(Mr. Justice Frankfurter, concurring). Adherence to these principles will not,
of course, obviate all constitutional differences of opinion among judges, nor
should it. Their continued recognition
*502
will, however, go farther toward keeping most judges from roaming at large in
the constitutional field than will the interpolation into the Constitution of an
artificial and largely illusory restriction on the content of the Due Process
Clause.
[FN*]
FN*
Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host
of of cases in which the Court has recognized fundamental rights in the
Fourteenth Amendment without specific reliance upon the Bill of Rights. Post, p.
1696, n. 4.
Mr.
Justice WHITE, concurring in the judgment.
In my
view this Connecticut law as applied to married couples deprives them of
'liberty' without due process of law, as that concept is used in the Fourteenth
Amendment. I therefore concur in the judgment of the Court reversing these
convictions under Connecticut's aiding and abetting statute.
It
would be unduly repetitious, and belaboring the obvious, to expound on the
impact of this statute on the liberty guaranteed by the Fourteenth Amendment
against arbitrary or capricious denials or on the nature of this liberty.
Suffice it to say that this is not the first time this Court has had occasion to
articulate that the liberty entitled to protection under the Fourteenth
Amendment includes the right 'to marry, establish a home and bring up children,'
Meyer v. State of Nebraska,
262 U.S. 390, 399, 43 S.Ct. 625, 626,
67 L.Ed.2d 1042 and 'the liberty * * * to direct the upbringing and education of
children,'
Pierce v. Society of
Sisters, 268 U.S. 510, 534-- 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070,
and that these are among 'the basic civil rights of man.'
Skinner v. State of
Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655.
These decisions affirm that there is a 'realm of family life which the state
cannot enter' without substantial justification.
Prince v. Com. of
Massachusetts, 321 U.S. 158, 166, 64 S.Ct.
438, 442, 88 L.Ed. 645.
Surely the right invoked in this case, to be free of regulation of the
intimacies of
*503
the marriage relationship, 'come(s) to this Court with a momentum for respect
lacking when appeal is made to liberties which derive merely from shifting
economic arrangements.'
Kovacs v. Cooper, 336 U.S.
77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513
(opinion of Frankfurter, J.).
The
Connecticut anti-contraceptive statute deals rather substantially with
**1692
this relationship. For it forbids all married persons the right to use
birth-control devices, regardless of whether their use is dictated by
considerations of family planning,
Trubek v. Ullman, 147 Conn.
633, 165 A.2d 158,
health, or indeed even of life itself.
Buxton v. Ullman, 147 Conn.
48, 156 A.2d 508.
The anti-use statute, together with the general aiding and abetting statute,
prohibits doctors from affording advice to married persons on proper and
effective methods of birth control.
Tileston v. Ullman, 129
Conn. 84, 26 A.2d 582.
And the clear effect of these statutes, as enforced, is to deny disadvantaged
citizens of Connecticut, those without either adequate knowledge or resources to
obtain private counseling, access to medical assistance and up-to-date
information in respect to proper methods of birth control.
State v. Nelson, 126 Conn.
412, 11 A.2d 856;
State v. Griswold, 151
Conn. 544, 200 A.2d 479.
In my view, a statute with these effects bears a substantial burden of
justification when attacked under the Fourteenth Amendment.
Yick Wo v. Hopkins, 118
U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220;
Skinner v. State of
Oklahoma, 316 U.S. 535, 62 S.Ct. 1110;
Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796;
McLaughlin v. Florida, 379
U.S. 184, 192, 85 S.Ct. 283, 288.
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 demands the marriage relationship. The nature of the
right invaded is pertinent, to be sure, for statutes regulating sensitive areas
of liberty do, under
*504
the cases of this Court, require 'strict scrutiny,'
Skinner v. State of
Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110,
and 'must be viewed in the light of less drastic means for achieving the same
basic purpose.'
Shelton v. Tucker, 364 U.S.
479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.
'Where there is a significant encroachment upon personal liberty, the State may
prevail only upon showing a subordinating interest which is compelling.'
Bates v. City of Little
Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417.
See also
McLaughlin v. State of
Florida, 379 U.S. 184, 85 S.Ct. 283.
But such statutes, if reasonably necessary for the effectuation of a legitimate
and substantial state interest, and not arbitrary or capricious in application,
are not invalid under the Due Process Clause.
Zemel v. Rusk, 381 U.S. 1,
85 S.Ct. 1271.
[FN*]
FN*
Dissenting opinions assert that the liberty guaranteed by the Due Process Clause
is limited to a guarantee against unduly vague statutes and against procedural
unfairness at trial. Under this view the Court is without authority to ascertain
whether a challenged statute, or its application, has a permissible purpose and
whether the manner of regulation bears a rational or justifying relationship to
this purpose. A long line of cases makes very clear that this has not been the
view of this Court.
Dent v. State of West
Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623;
Jacobson v. Com. of
Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643;
Douglas v. Noble, 261 U.S.
165, 43 S.Ct. 303, 67 L.Ed. 590;
Meyer v. State of Nebraska,
262 U.S. 390, 43 S.Ct. 625;
Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571;
Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752;
Aptheker v. Secretary of
State, 378 U.S. 500, 84 S.Ct. 1659;
Zemel v. Rusk, 381 U.S. 1,
85 S.Ct. 1271.
The
traditional due process test was well articulated, and applied, in Schware v.
Board of Bar Examiners, supra, a case which placed no reliance on the specific
guarantees of the Bill of Rights.
'A State
cannot exclude a person from the practice of law or from any other occupation in
a manner or for reasons that contravene the Due Process or Equal
Protection Clause of the Fourteenth Amendment.
Dent v. State of West
Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623.
Cf.
Slochower v. Board of
Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692;
Wieman v. Updegraff, 344
U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216.
And see Ex parte
Secombe, 19 How. 9, 13, 15
L.Ed. 565.
A State can require high standards of qualification, such as good moral
character or proficiency in its law, before it admits an applicant to the bar,
but any qualification must have a rational connection with the applicant's
fitness or capacity to practice law.
Douglas v. Noble, 261 U.S.
165, 43 S.Ct. 303, 67 L.Ed. 590;
Cummings v. State of
Missouri, 4 Wall. 277, 319--320, 18 L.Ed. 356.
Cf.
Nebbia v. People of State
of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940.
Obviously an applicant could not be excluded merely because he was a Republican
or a Negro or a member of a particular church. Even in applying permissible
standards, officers of a State cannot exclude an applicant when there is no
basis for their finding that he fails to meet these standards, or when their
action is invidiously discriminatory.'
353 U.S., at 238--239, 77
S.Ct. at 756.
Cf.
Martin v. Walton, 368 U.S.
25, 26, 82 S.Ct. 1, 2, 7 L.Ed.2d 5
(Douglas, J., dissenting).
**1693
*505
As
I read the opinions of the Connecticut courts and the argument of Connecticut in
this Court, the State claims but one justification for its anti-use statute. Cf.
Allied Stores of Ohio v.
Bowers, 358 U.S. 522, 530, 79 S.Ct. 437, 442, 3 L.Ed.2d 480;
Martin v. Walton, 368 U.S.
25, 28, 82 S.Ct. 1, 3, 7 L.Ed.2d 5
(Douglas, J., dissenting). There is no serious contention that Connecticut
thinks the use of artificial or external methods of contraception immoral or
unwise in itself, or that the anti-use statute is founded upon any policy of
promoting population expansion. Rather, the statute is said to serve the State's
policy against all forms of promiscuous or illicit sexual relationships, be they
premarital or extramarital, concededly a permissible and legitimate legislative
goal.
Without taking issue with the premise that the fear of conception operates as a
deterrent to such relationships in addition to the criminal proscriptions
Connecticut has against such conduct, I wholly fail to see how the ban on the
use of contraceptives by married couples in any way reinforces the State's ban
on illicit sexual relationships. See
Schware v. Board of Bar
Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756.
Connecticut does not bar the importation or possession of contraceptive devices;
they are not considered contraband material under state law,
State v. Certain
Contraceptive Materials, 126 Conn. 428, 11 A.2d 863,
and their availability in that State is not seriously disputed. The only way
Connecticut seeks to limit or control the availability of such devices is
through its general aiding and abetting statute whose operation in this context
has
*506
been quite obviously ineffective and whose most serious use has been against
birth-control clinics rendering advice to married, rather than unmarried,
persons. Cf.
Yick Wo v. Hopkins, 118
U.S. 356, 6 S.Ct. 1064.
Indeed, after over 80 years of the State's proscription of use, the legality of
the sale of such devices to prevent disease has never been expressly passed
upon, although it appears that sales have long occurred and have only
infrequently been challenged. This 'undeviating policy * * * throughout all the
long years * * * bespeaks more than prosecutorial paralysis.'
Poe v. Ullman, 367 U.S.
497, 502, 81 S.Ct. 1752, 1755.
Moreover, it would appear that the sale of contraceptives to prevent disease is
plainly legal under Connecticut law.
In
these circumstances one is rather hard pressed to explain how the ban on use by
married persons in any way prevents use of such devices by persons engaging in
illicit sexual relations and thereby contributes to the State's policy against
such relationships. Neither the state courts nor the State before the bar of
this Court has tendered such an explanation. It is purely fanciful to believe
that the broad proscription on use facilitates discovery of use by persons
engaging in a prohibited relationship or for some other reason makes such use
more unlikely and thus can be supported by any sort of administrative
consideration. Perhaps the theory is that the flat ban on use prevents married
people from possessing contraceptives and without the ready availability of such
devices for use in the marital relationship, there
**1694
will be no or less temptation to use them in extramarital ones. This reasoning
rests on the premise that married people will comply with the ban in regard to
their marital relationship, notwithstanding total nonenforcement in this context
and apparent nonenforcibility, but will not comply with criminal statutes
prohibiting extramarital affairs and the anti-use statute in respect to illicit
sexual relationships, a premise whose validity has not been
*507
demonstrated and whose intrinsic validity is not very evident. At most the broad
ban is of marginal utility to the declared objective. A statute limiting its
prohibition on use to persons engaging in the prohibited relationship would
serve the end posited by Connecticut in the same way, and with the same
effectiveness, or ineffectiveness, as the broad anti-use statute under attack in
this case. I find nothing in this record justifying the sweeping scope of this
statute, with its telling effect on the freedoms of married persons, and
therefore conclude that it deprives such persons of liberty without due process
of law.
Mr.
Justice BLACK, with whom Mr. Justice STEWART joins, dissenting.
I
agree with my Brother STEWART'S dissenting opinion. And like him I do not to any
extent whatever base my view that this Connecticut law is constitutional on a
belief that the law is wise or that its policy is a good one. In order that
there may be no room at all to doubt why I vote as I do, I feel constrained to
add that the law is every bit as offensive to me as it is my Brethren of the
majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it
is offensive to them, hold it unconstitutional. There is no single one of the
graphic and eloquent strictures and criticisms fired at the policy of this
Connecticut law either by the Court's opinion or by those of my concurring
Brethren to which I cannot subscribe--except their conclusion that the evil
qualities they see in the law make it unconstitutional.
Had
the doctor defendant here, or even the nondoctor defendant, been convicted for
doing nothing more than expressing opinions to persons coming to the clinic that
certain contraceptive devices, medicines or practices would do them good and
would be desirable, or for telling people how devices could be used, I can think
of no reasons at this time why their expressions of views would not be
*508
protected by the First and Fourteenth Amendments, which guarantee freedom of
speech. Cf.
Brotherhood of Railroad
Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12
L.Ed.2d 89;
NAACP v.
Button, 371 U.S. 415, 83
S.Ct. 328, 9 L.Ed.2d 405.
But speech is one thing; conduct and physical activities are quite another. See,
e.g.,
Cox v. State of Louisiana,
379 U.S. 536, 554--555,
85 S.Ct. 453, 464, 13
L.Ed.2d 471;
Cox v. State of Louisiana,
379 U.S. 559, 563--564, 85 S.Ct. 476, 480, 13 L.Ed.2d 487;
id., 575--584
(concurring opinion);
Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834;
cf.
Reynolds v. United States,
98 U.S. 145, 163--164, 25 L.Ed. 244.
The two defendants here were active participants in an organization which gave
physical examinations to women, advised them what kind of contraceptive devices
or medicines would most likely be satisfactory for them, and then supplied the
devices themselves, all for a graduated scale of fees, based on the family
income. Thus these defendants admittedly engaged with others in a planned course
of conduct to help people violate the Connecticut law. Merely because some
speech was used in carrying on the conduct--just as in ordinary life some speech
accompanies most kinds of conduct--we are not in my view justified in holding
that the First Amendment forbids the State to punish their conduct. Strongly as
I desire to protect all First Amendment freedoms, I am unable to stretch the
Amendment
**1695
so
as to afford protection to the conduct of these defendants in violating the
Connecticut law. What would be the constitutional fate of the law if hereafter
applied to punish nothing but speech is, as I have said, quite another matter.
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
*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, 84 S.Ct. 710, 733, 11 L.Ed.2d 686
(concurring opinion); cases collected in
City of El Paso v. Simmons,
379 U.S. 497, 517, n. 1, 85 S.Ct. 577, 588, 13 L.Ed.2d 446
(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 or
privacy' as an emanation from
*510
one or more constitutional provisions.
[FN1]
I like
**1696
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.
FN1.
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,
69 L.R.A. 101.
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
'privacy.'
This
brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for
invalidating the Connecticut law. Brothers HARLAN
[FN2]
and WHITE would invalidate it by reliance on the Due Process Clause of the
Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN,
relies also on the Ninth Amendment. I have no doubt that the Connecticut law
could be applied in such a way as to abridge freedom of
*511
speech and press and therefore violate the First and Fourteenth Amendments. My
disagreement with the Court's opinion holding that there is such a violation
here is a narrow one, relating to the application of the First Amendment to the
facts and circumstances of this particular case. But my disagreement with
Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that if properly
construed neither the Due Process Clause nor the Ninth Amendment, nor both
together, could under any circumstances be a proper basis for invalidating the
Connecticut law. I discuss the due process and Ninth Amendment arguments
together because on analysis they turn out to be the same thing--merely using
different words to claim for this Court and the federal judiciary power to
invalidate any legislative act which the judges find irrational, unreasonable or
offensive.
FN2.
Brother Harlan's views are spelled out at greater length in his dissenting
opinion in
Poe v. Ullman, 367 U.S.
497, 539--555, 81 S.Ct. 1752, 1774, 1783, 6 L.Ed.2d 989.
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 consider to be arbitrary, capricious,
unreasonable, or oppressive, or 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.'
[FN3]
If these formulas based on 'natural justice,' or others which mean the same
thing,
[FN4]
are to prevail, they require
**1697
judges to determine
*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
*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, 2 L.Ed. 60,
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.'
[FN5]
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
**1698
denied to federal courts by the convention that framed the Constitution.
[FN6]
FN3.
Indeed, Brother WHITE appears to have gone beyond past pronouncements of the
natural law due process theory, which at least said that the Court should
exercise this unlimited power to declare acts unconstitutional with 'restraint.'
He now says that, instead of being presumed constitutional, see
Adkins v. Children's
Hospital, 261 U.S. 525, 544, 43 S.Ct. 394, 396, 67 L.Ed. 785,
the statute here 'bears a substantial burden of justification when attacked
under the Fourteenth Amendment.'
FN4.
A collection of the catchwords and catch phrases invoked by judges who would
strike down under the Fourteenth Amendment laws which offend their notions of
natural justice would fill many pages. Thus it has been said that this Court can
forbid state action which 'shocks the conscience,'
Rochin v. People of
California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183,
sufficiently to 'shock itself into the protective arms of the Constitution,'
Irvine v. People of State
of California, 347 U.S. 128, 138, 74 S.Ct. 381, 386, 98 L.Ed. 561
(concurring opinion). It has
been urged
that States may not run counter to the 'decencies of civilized conduct,'
Rochin, supra, 342 U.S. at
173, 72 S.Ct. at 210,
or 'some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental,'
Snyder v. Com. of
Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674,
or to 'those canons of decency and fairness which express the notions of justice
of English-speaking peoples,'
Malinski v. People of State
of New York, 324 U.S. 401, 417, 65 S.Ct. 781, 789, 89 L.Ed. 1029
(concurring opinion), or to 'the community's sense of fair play and decency,'
Rochin, supra, 342 U.S. at
173, 72 S.Ct. at 210.
It has been said that we must decide whether a state law is 'fair, reasonable
and appropriate,' or is rather 'an unreasonable, unnecessary, and arbitrary
interference with the right of the individual to his personal liberty, or to
enter into * * * contracts,'
Lochner v. State of New
York, 198 U.S. 45, 56, 25 S.Ct. 539, 543, 49 L.Ed. 937.
States, under this philosophy, cannot act in conflict with 'deeply rooted
feelings of the community,'
Haley v. State of Ohio, 332
U.S. 596, 604, 68 S.Ct. 302, 306, 92 L.Ed. 224
(separate opinion), or with 'fundamental notions of fairness and justice,'
id., 607, 68 S.Ct. 307.
See also, e.g.
Wolf v. People of State of
Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782
('rights * * * basic to our free society');
Hebert v. State of
Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270
('fundamental principles of liberty and justice');
Adkins v. Children's
Hospital, 261 U.S. 525, 561, 43 S.Ct. 394, 402, 67 L.Ed. 785
('arbitrary restraint of * * * liberties');
Betts v. Brady, 316 U.S.
455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595
('denial of fundamental fairness, shocking to the universal sense of justice');
Poe v. Ullman, 367 U.S.
497, 539, 81 S.Ct. 1752,
(dissenting opinion) ('intolerable and unjustfiable'). Perhaps the clearest,
frankest and briefest explanation of how this due process approach works is the
statement in another case handed down today that this Court is to invoke the Due
Process Clause to strike down state procedures or laws which it can 'not
tolerate.'
Linkletter v. Walker, 381
U.S. 618, at 631, 85 S.Ct. 1731, at 1739.
FN5.
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 decision.' See also
Rochin v. People of
California, 342 U.S. 165, 174, 72 S.Ct. 205, 210
(concurring opinion). But see
Linkletter v. Walker,
supra, n. 4, 381 U.S. 631, 85 S.Ct., at 1739.
FN6.
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, 3 L.Ed. 162.
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. Edmund Randolph
of Virginia proposed that the President
'* * * and a
convenient number of the National Judiciary, ought to compose a council of
revision with authority to examine every act of the National Legislature before
it shall operate, & every act of a particular Legislature before a Negative
thereon shall be final; and that the dissent of the said Council shall amount to
a rejection, unless the Act of the National Legislature be again passed, or that
of a particular Legislature
be again
negatived by (original wording illegible) of the members of each branch.' 1 The
Records of the Federal Convention of 1787 (Farrand ed.1911) 21.
In support of
a plan of this kind James Wilson of Pennsylvania argued that:
'* * * It had
been said that the Judges, as expositors of the Laws would have an opportunity
of defending their constitutional rights. There was weight in this observation;
but this power of the Judges did not go far enough. Laws may be unjust, may be
unwise, may be dangerous, may be destructive; and yet not be so unconstitutional
as to justify the Judges in refusing to give them effect. Let them have a share
in the Revisionary power, and they will have an opportunity of taking notice of
these characters of a law, and of counteracting, by the weight of their opinions
the improper views of the Legislature.' 2 id., at 73.
Nathaniel
Gorham of Massachusetts 'did not see the advantage of employing the Judges in
this way. As Judges they are not to be presumed to possess any peculiar
knowledge of the mere policy of public measures.' Ibid.
Elbridge
Gerry of Massachusetts likewise opposed the proposal for a council of revision:
'* * * He
relied for his part on the Representatives of the people as the guardians of
their Rights & interests. It (the proposal) was making the
Expositors of
the Laws, the Legislators which ought never to be done.' Id., at 75.
And at
another point:
'Mr. Gerry
doubts whether the Judiciary ought to form a part of it (the proposed council of
revision), as they will have a sufficient check agst. encroachments on their own
department by their exposition of the laws, which involved a power of deciding
on their Constitutionality * * *. It was quite foreign from the nature of ye.
office to make them judges of the policy of public measures.' 1 Id., at 97--98.
Madison
supported the proposal on the ground that 'a Check (on the legislature) is
necessary.'
Id., at 108.
John Dickinson of Delaware opposed it on the ground that 'the Judges must
interpret the Laws they ought not to be legislators.' Ibid. The proposal for a
council of revision was defeated.
The following
proposal was also advanced:
'To assist
the President in conducting the Public affairs there shall be a Council of State
composed of the following officers--1. The Chief Justice of the Supreme Court,
who shall from time to time recommend such alterations of and additions to the
laws of the U.S. as may in his opinion be necessary to the due administration of
Justice, and such as may promote
useful
learning and inculcate sound morality throughout the Union * * *.' 2 id., at
342. This proposal too was rejected.
*514
Of
the cases on which my Brothers WHITE and GOLDBERG rely so heavily, undoubtedly
the reasoning of two of them supports their result here--as would that of a
number of others which they do not bother to name, e.g.,
*515
Lochner v. State of New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937;
Coppage v. State of Kansas,
236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441;
Jay Burns Baking Co. v.
Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813,
and
Adkins v. Children's
Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785.
The two they do cite and quote from,
Meyer v. State of Nebraska,
262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042,
and
Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070,
were both decided in opinions
**1699
by
Mr. Justice McReynolds which elaborated the same natural law due process
philosophy found in Lochner v. New York, supra, one of the cases on which he
relied in Meyer, along with such other long-discredited decisions as, e.g.,
Adams v. Tanner, 244 U.S.
590, 37 S.Ct. 662, 61 L.Ed. 1336,
and Adkins v. Children's Hospital, supra. Meyer held unconstitutional, as an
'arbitrary' and unreasonable interference with the right of a teacher to carry
on his occupation and of parents to hire him, a
*516
state law forbidding the teaching of modern foreign languages to young children
in the schools.
[FN7]
And in Pierce, relying principally on Meyer, Mr. Justice McReynolds said that a
state law requiring that all children attend public schools interfered
unconstitutionally with the property rights of private school corporations
because it was an 'arbitrary, unreasonable, and unlawful interference' which
threatened 'destruction of their business and property.'
268 U.S., at 536, 45 S.Ct.
at 574.
Without expressing an opinion as to whether either of those cases reached a
correct result in light of our later decisions applying the First Amendment to
the States through the Fourteenth,
[FN8]
I merely point out that the reasoning stated in Meyer and Pierce was the same
natural law due process philosophy which many later opinions repudiated, and
which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases, such
as
NAACP v. Button, 371 U.S.
415, 83 S.Ct. 328, 9 L.Ed.2d 405;
Shelton v. Tucker, 364 U.S.
479, 81 S.Ct. 247, 5 L.Ed.2d 231,
and
Schneider v. State of New
Jersey, 308 U.S. 147, 60 S.Ct. 146,
which held that States in regulating conduct could not, consistently with the
First Amendment as applied to them by the Fourteenth, pass unnecessarily broad
laws which might indirectly infringe on First Amendment freedoms.
[FN9]
See
*517
Brotherhood of Railroad
Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 7--8, 84 S.Ct.
1113, 1117, 12 L.Ed.2d 89.
[FN10]
Brothers WHITE and GOLDBERG
**1700
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 and law restricting 'liberty' as my Brethren define
'liberty.' This would mean at the
*518
very least, I suppose, that every state cri minal statute--since it must
inevitably curtail 'liberty' to some extent--would be suspect, and would have to
be justified to this Court.
[FN11]
FN7.
In Meyer, in the very same sentence quoted in part by my Brethren in which he
asserted that the Due Process Clause gave an abstract and inviolable right 'to
marry, establish a home and bring up children,' Mr. Justice McReynolds asserted
also that the Due Process Clause prevented States from interfering with 'the
right of the individual to contract.'
262 U.S., at 399, 43 S.Ct.,
at 626.
FN8.
Compare
Poe v. Ullman, 367 U.S., at
543--544, 81 S.Ct. at 1776, 1777, 6 L.Ed.2d 989
(Harlan, J., dissenting).
FN9.
The Court has also said that in view of the Fourteenth Amendment's major purpose
of eliminating state-enforced racial
discrimination, this Court will scrutinize carefully any law embodying a racial
classification to make sure that it does not deny equal protection of the laws.
See
McLaughlin v. State of
Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222.
FN10.
None of the other cases decided in the past 25 years which Brothers WHITE and
GOLDBERG cite can justly be read as holding that judges have power to use a
natural law due process formula to strike down all state laws which they think
are unwise, dangerous, or irrational.
Prince v. Com. of
Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645,
upheld a state law forbidding minors from selling publications on the streets.
Kent v. Dulles, 357 U.S.
116, 78 S.Ct. 1113, 2 L.Ed.2d 1204,
recognized the power of Congress to restrict travel outside the country so long
as it accorded persons the procedural safeguards of due process and did not
violate any other specific constitutional provision.
Schware v. Board of Bar
Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796,
held simply that a State could not, consistently with due process, refuse a
lawyer a license to practice law on the basis of a finding that he was morally
unfit when there was no evidence in the record,
353 U.S., at 246--247, 77
S.Ct. at 760,
to support such a finding. Compare Thompson v. City of Louisville,
362 U.S. 199,
80 S.Ct. 624, 4 L.Ed.2d 654, in which the Court relied in part on Schware. See
also
Konigsberg v. State Bar,
353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810.
And
Bolling v. Sharpe, 347 U.S.
497, 74 S.Ct. 693, 98 L.Ed. 884,
merely recognized what had been the understanding from the beginning of the
country, an understanding shared by many of the draftsmen of the Fourteenth
Amendment, that the whole Bill of Rights, including the Due Process Clause of
the Fifth Amendment, was a guarantee that all persons would receive equal
treatment under the law. Compare
Chambers v. State of
Florida, 309 U.S. 227, 240--241, 60 S.Ct. 472, 478--479, 84 L.Ed. 716.
With one exception, the other modern cases relied on by my Brethren were decided
either solely under the Equal Protection Clause of the Fourteenth Amendment or
under the First Amendment, made applicable to the States by the Fourteenth, some
of the latter group involving the right of association which this Court has held
to be a part of the rights of speech, press and assembly guaranteed by the First
Amendment. As for
Aptheker v. Secretary of
State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992
I am compelled to say that if that decision was written or intended to bring
about the abrupt and drastic reversal in the course of constitutional
adjudication which is now attributed to it, the change was certainly made in a
very quiet and unprovocative manner, without
any attempt
to justify it.
FN11.
Compare
Adkins v. Children's
Hospital, 261 U.S. 525, 568, 43 S.Ct. 394, 405
(Holmes, J., dissenting):
'The earlier
decisions upon the same words (the Due Process Clause) in the Fourteenth
Amendment began within our memory and went no farther than an unpretentious
assertion of the liberty to follow the ordinary callings. Later that innocuous
generality was expanded into the dogma, Liberty of Contract. Contract is not
specially mentioned in the text that we have to construe. It is merely an
example of doing what you want to do, embodied in the word liberty. But pretty
much all law consists in forbidding men to do some things that they want to do,
and contract is no more exempt from law than other acts.'
My
Brother GOLDBERG has adopted the recent discovery
[FN12]
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
*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.
[FN13]
And
**1701
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
[FN14]
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
*520
insecure.'
[FN15]
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.
FN12.
See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that
the Ninth Amendment be used to protect unspecified 'natural and inalienable
rights.' P. 4. The Introduction by Roscoe Pound states that 'there is a marked
revival of natural law ideas throughout the world. Interest in the Ninth
Amendment is a symptom of that revival.' P. iii.
In Redlich,
Are There 'Certain Rights * * * Retained by the People'?, 37
N.Y.U.L.Rev.
787, Professor Redlich, in advocating reliance on the Ninth and Tenth Amendments
to invalidate the Connecticut law before us, frankly states:
'But for one
who feels that the marriage relationship should be beyond the reach of a state
law forbidding the use of contraceptives, the birth control case poses a
troublesome and challenging problem of constitutional interpretation. He may
find himself saying, 'The law is unconstitutional-- but why?' There are two
possible paths to travel in finding the answer. One is to revert to a frankly
flexible due process concept even on matters that do not involve specific
constitutional prohibitions. The other is to attempt to evolve a new
constitutional framework within which to meet this and similar problems which
are likely to arise.' Id., at 798.
FN13.
Of course one cannot be oblivious to the fact that Mr. Gallup has already
published the results of a poll which he says show that 46% of the people in
this country believe schools should teach about birth control. Washington Post,
May 21, 1965, p. 2, col. 1. I can hardly believe, however, that Brother Goldberg
would view 46% of the persons polled as so overwhelming a proportion that this
Court may now rely on it to declare that the Connecticut law infringes
'fundamental' rights, and overrule the
long-standing
view of the people of Connecticut expressed through their elected
representatives.
FN14.
U.S.Const. Amend. IX,
provides:
'The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.'
FN15.
1 Annals of Congress 439. See also II Story, Commentaries on the
Constitution of the United
States (5th ed. 1891):
'This clause was manifestly introduced to prevent any perverse or ingenious
misapplication of the well-known maxim, that an affirmation in particular cases
implies a negation in all others; and, e converso, that a negation in particular
cases implies an affirmation in all others. The maxim, rightly understood, is
perfectly sound and safe; but it has often been strangely forced from its
natural meaning into the support of the most dangerous political heresies.' Id.,
at 651 (footnote omitted).
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
*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
**1702
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.
[FN16]
FN16.
Justice Holmes in one of his last dissents, written in reply to Mr. Justice
McReynolds' opinion for the Court in
Baldwin v. State of
Missouri, 281 U.S. 586, 50 S.Ct. 436, 439, 74 L.Ed. 1056,
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 and 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 was 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.'
281 U.S., at 595.
See 2 Holmes-Pollock Lettes (Howe ed. 1941) 267--268.
*522
I
realize that many good and able men have eloquently spoken and written,
sometimes in rhapsodical strains, about the duty of this Court to keep the
Constitution in tune with the times. The idea is that the Constitution must be
changed from time to time and that this Court is charged with a duty to make
those changes. For myself, I must with all deference reject that philosophy. The
Constitution makers knew the need for change and provided for it. Amendments
suggested by the people's elected representatives can be submitted to the people
or their selected agents for ratification. That method of change was good for
our Fathers, and being somewhat oldfashioned I must add it is good enough for
me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or
any mysterious and uncertain natural law concept as a reason for striking down
this state law. The Due Process Clause with an 'arbitrary and capricious' or
'shocking to the conscience' formula was liberally used by this Court to strike
down economic legislation in the early decades of this century, threatening,
many people thought, the tranquility and stability of the Nation. See, e.g.,
Lochner v. State of New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937.
That formula, based on subjective considerations of 'natural justice,' is no
less dangerous when used to enforce this Court's views about personal rights
than those about economic rights. I had thought that we had laid that formula,
as a means for striking down state legislation, to rest once and for all in
cases like
West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703;
Olsen v. State of Nebraska
ex rel. Western Reference & Bond
Assn., 313 U.S. 236, 61
S.Ct. 862, 85 L.Ed. 1305,
and many other
*523
opinions.
[FN17]
See also
**1703
Lochner v. New York, 198
U.S. 45, 74, 25 S.Ct. 539, 551
(Holmes, J., dissenting).
FN17.
E.g., in
Day-Brite Lighting, Inc. v.
State of Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469,
this Court held that 'Our recent decisions make plain that we do not sit as a
super-legislature to weigh the wisdom of legislation nor to decide whether the
policy which it expresses offends the public welfare.'
Compare
Gardner v. Com. of
Massachusetts, 305 U.S. 559,
59 S.Ct. 90,
83 L.Ed. 353, which the Court today apparently overrules, which held that a
challenge under the Federal Constitution to a state law forbidding the sale or
furnishing of contraceptives did not raise a substantial federal question.
In
Ferguson v. Skrupa, 372
U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93,
this Court two years ago said in an opinion joined by all the Justices but one
[FN18]
that
FN18.
Brother HARLAN, who has consistently stated his belief in the
power of
courts to strike down laws which they consider arbitrary or unreasonable, see
e.g.,
Poe v. Ullman, 367 U.S.
497, 539--555, 81 S.Ct. 1752, 1774, 1783
(dissenting opinion), did not join the Court's opinion in Ferguson v. Skrupa.
'The
doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases--that
due process authorizes courts to hold laws unconstitutional when they believe
the legislature has acted unwisely--has long since been discarded. We have
returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws.'
And
only six weeks ago, without even bothering to hear argument, this Court
overruled
Tyson & Brother v. Banton,
273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718,
which had held state laws regulating ticket brokers to be a denial of due
process of law.
[FN19]
*524
Gold v. DiCarlo, 380 U.S.
520, 85 S.Ct. 1332.
I find April's holding hard to square with what my concurring Brethren urge
today. They would reinstate the Lochner, Coppage, Adkins, Burns line of cases,
cases from which this Court recoiled after the 1930's, and which had been I
thought totally discredited until now. Apparently my Brethren have less quarrel
with state economic regulations than former Justices of their persuasion had.
But any limitation upon their using the natural law due process philosophy to
strike down any state law, dealing with any activity whatever, will obviously be
only self-imposed.
[FN20]
FN19.
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.'
273 U.S., at 446, 47 S.Ct.
at 433.
FN20.
Compare
Nicchia v. People of State
of New York, 254 U.S. 228, 231, 41 S.Ct. 103, 104, 65 L.Ed. 235,
upholding a New York dog-licensing statute on the ground that it did not
'deprive dog owners of liberty without due process of law.' And as I said
concurring in
Rochin v. People of State
of California, 342 U.S. 165, 175, 72 S.Ct. 205, 211, 96 L.Ed. 183,
'I believe that faithful adherence to the specific guarantees in the Bill of
Rights insures a more permanent protection of individual
liberty than
that which can be afforded by the nebulous standards' urged by my concurring
Brethren today.
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
**1704
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
*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 justice.'
Calder v. Bull, 3 Dall.
386, 399, 1 L.Ed. 648
(emphasis in original).
I
would adhere to that constitutional philosophy in passing on this Connecticut
law today. I am not persuaded to deviate from the view which I stated in 1947 in
Adamson v. People of State
of California, 332 U.S. 46, 90---92,
67 S.Ct. 1672, 1696, 91
L.Ed. 1903
(dissenting opinion):
'Since
Marbury v. Madison, 1
Cranch 137, 2 L.Ed. 60,
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
*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.'
Federal Power Commission v.
Natural Gas Pipeline Co., 315 U.S. 575, 599, 601, n. 4, 62 S.Ct. 736, 749, 750,
86 L.Ed. 1037.'
[FN21]
(Footnotes omitted.)
FN21.
Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799,
and similar cases applying specific Bill of Rights provisions to the States do
not in my view stand for the proposition that this Court can rely on its own
concept of 'ordered liberty' or 'shocking the conscience' or natural law to
decide what laws it will permit state legislatures to enact. Gideon in applying
to state prosecutions the Sixth Amendment's guarantee of right to counsel
followed
Palko v. State of
Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288,
which had held that specific provisions of the Bill of Rights, rather than the
Bill of Rights as a whole, would be selectively applied to the States. While
expressing my own belief (not shared by MR. JUSTICE STEWART) that all the
provisions of the Bill of Rights were made applicable to the States by the
Fourteenth Amendment, in my dissent in
Adamson v. People of State
of California, 332 U.S. 46, 89, 67 S.Ct. 1672, 1695, 91 L.Ed. 1903,
I said: 'If the choice must be between
the selective
process of the Palko decision applying some of the Bill of Rights to the States,
or the Twining rule applying none of them, I would choose the Palko selective
process.'
Gideon and
similar cases merely followed the Palko rule, which in Adamson I agreed to
follow if necessary to make Bill of Rights safeguards applicable to the States.
See also
Pointer v. State of Texas,
380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923;
Malloy v. Hogan, 378 U.S.
1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
The
late Judge Learned Hand, after emphasizing his view that judges should not
**1705
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,'
[FN22]
made the statement, with which I fully agree, that:
FN22.
Hand, The Bill of Rights (1958) 70. See note 5, supra. See generally
id., at 35--45.
'For
myself it would be most irksome to be ruled by a bevy of Platonic Guardians,
even if I
*527
knew how to choose them, which I assuredly do not.'
[FN23]
FN23.
Id., at 73. While Judge Hand condemned as unjustified the invalidation of state
laws under the natural law due process formula, see
id., at 35--45,
he also expressed the view that this Court in a number of cases had gone too far
in holding legislation to be in violation of specific guarantees of the Bill of
Rights. Although I agree with his criticism of use of the due process formula, I
do not agree with all the views he expressed about construing the specific
guarantees of the Bill of Rights.
So far
as I am concerned, Connecticut's law as applied here is not forbidden by any
provision of the Federal Constitution as that Constitution was written, and I
would therefore affirm.
Mr.
Justice STEWART, whom Mr. Justice BLACK joins, dissenting.
Since
1879 Connecticut has had on its books a law which forbids the use of
contraceptives by anyone. I think this is an uncommonly silly law. As a
practical matter, the law is obviously unenforceable, except in the oblique
context of the present case. As a philosophical matter, I believe the use of
contraceptives in the relationship of marriage should be left to personal and
private choice, based upon each individual's moral, ethical, and religious
beliefs. As a matter of social policy, I think professional counsel about
methods of birth control should be available to all, so that each individual's
choice can be meaningfully made. But we are not asked in this case to say
whether we think this law is unwise, or even asinine. We are asked to hold that
it violates the United States Constitution. And that I cannot do.
In the
course of its opinion the Court refers to no less than six Amendments to the
Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the
Fourteenth.
*528
But the Court does not say which of these Amendments, if any, it thinks is
infringed by this Connecticut law.
We are
told that the Due Process Clause of the Fourteenth Amendment is not, as such,
the 'guide' in this case. With that much I agree. There is no claim that this
law, duly enacted by the Connecticut Legislature, is unconstitutionally vague.
There is no claim that the appellants were denied any of the elements of
procedural due process at their trial, so as to make their convictions
constitutionally invalid. And, as the Court says, the day has long passed since
the Due Process Clause was regarded as a proper instrument for determining 'the
wisdom, need, and propriety' of state laws. Compare
Lochner v. State of New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937,
with
Ferguson v. Skrupa, 372
U.S. 726, 83 S.Ct. 1028, 10
L.Ed.2d 93.
My Brothers HARLAN and WHITE to the contrary, '(w)e have returned to the
original constitutional proposition that courts do not substitute their social
and economic beliefs for the judgment of legislative bodies, who are elected to
pass laws.'
Ferguson v. Skrupa, supra,
372 U.S. at 730, 83 S.Ct. at 1031.
As to
the First, Third, Fourth, and Fifth
Amendments, I
can find nothing in any of them to invalidate this Connecticut law, even
assuming that all those Amendments are fully applicable against the States.
[FN1]
It has
*529
not even been argued
**1706
that this is a law 'respecting an establishment of religion, or prohibiting the
free exercise thereof.'
[FN2]
And surely, unlss the solemn process of constitutional adjudication is to
descend to the level of a play on words, there is not involved here any
abridgment of 'the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of
grievances.'
[FN3]
No soldier has been quartered in any house.
[FN4]
There has been no search, and no seizure.
[FN5]
Nobody has been compelled to be a witness against himself.
[FN6]
FN1.
The Amendments in question were, as everyone knows, originally adopted as
limitations upon the power of the newly created Federal
Government,
not as limitations upon the powers of the individual States. But the Court has
held that many of the provisions of the first eight amendments are fully
embraced by the Fourteenth Amendment as limitations upon state action, and some
members of the Court have held the view that the adoption of the Fourteenth
Amendment made every provision of the first eight amendments fully applicable
against the States. See
Adamson v. People of State
of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684
(dissenting opinion of Mr. Justice Black).
FN2.
U.S.Constitution, Amendment
I.
To be sure, the injunction contained in the Connecticut statute coincides with
the doctrine of certain religious faiths. But if that were enough to invalidate
a law under the provisions of the First Amendment relating to religion, then
most criminal laws would be invalidated. See, e.g., the Ten Commandments. The
Bible, Exodus 20:2--17 (King James).
FN3.
U.S.Constitution, Amendment
I.
If all the appellants had done was to advise people that they thought the use of
contraceptives was desirable, or even to counsel their use, the appellants
would, of course, have a substantial First Amendment claim. But their activities
went far
beyond mere
advocacy. They prescribed specific contraceptive devices and furnished patients
with the prescribed contraceptive materials.
FN4.
U.S.Constitution, Amendment
III.
FN5.
U.S.Constitution, Amendment
IV.
FN6.
U.S.Constitution, Amendment
V.
The
Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring
opinion relies heavily upon it. But to say that the Ninth Amendment has anything
to do with this case is to turn somersaults with history. The Ninth Amendment,
like its companion the Tenth, which this Court held 'states but a truism that
all is retained which has not been surrendered,'
United States v. Darby, 312
U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609,
was framed by James Madison and adopted by the States simply to make clear that
the adoption of the Bill of Rights did not alter the plan that
*530
the Federal Government was to be a government of express and limited powers, and
that all rights and powers not delegated to it were retained by the people and
the individual States. Until today no member of this Court has ever suggested
that the Ninth Amendment meant anything else, and the idea that a federal court
could ever use the Ninth Amendment to annul a law passed by the elected
representatives of the people of the State of Connecticut would have caused
James Madison no little wonder.
What
provision of the Constitution, then, does make this state law invalid? The Court
says it is the right of privacy 'created by several fundamental constitutional
guarantees.' With all deference, I can find no such general right of privacy in
the Bill of Rights, in any other part of the Constitution, or in any case ever
before decided by this Court.
[FN7]
FN7.
Cases like
Shelton v. Tucker, 364 U.S.
479, 81 S.Ct. 247, 5 L.Ed.2d 231,
and
Bates v. City of Little
Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480,
relied upon in the concurring opinions today. dealt with true First Amendment
rights of association and are wholly inapposite here. See also, e.g.,
NAACP v. State of Alabama,
357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488;
Edwards v. South Carolina,
372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697.
Our decision in
McLaughlin v. State of
Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222,
is equally far afield. That case held invalid under the Equal Protection Clause
a state criminal law which discriminated against Negroes.
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.
**1707
At
the oral argument in this case we were told that the Connecticut law does not
'conform to current community standards.' But it is not the function of this
Court to decide cases on the basis of community standards. We are here to decide
cases 'agreeably to the Constitution and laws of the United States.' It is the
essence of judicial
*531
duty to subordinate our own personal views, our own ideas of what legislation is
wise and what is not. If, as I should surely hope, the law before us does not
reflect the standards of the people of Connecticut, the people of Connecticut
can freely exercise their true Ninth and Tenth Amendment rights to persuade
their elected representatives to repeal it. That is the constitutional way to
take this law off the books.
[FN8]
FN8. See
Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506.
The Connecticut House of Representatives recently passed a
bill (House
Bill No. 2462) repealing the birth control law. The State Senate has apparently
not yet acted on the measure, and today is relieved of that responsibility by
the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p.
13, col. 7.
U.S.Conn., 1965.
Griswold v. State of Conn.,
381
U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
Briefs and
Other Related Documents
(Back to top)
•
1965 WL 92621 (Appellate Brief) Reply Brief for Appellants (Mar. 26, 1965)
•
1965 WL 92599 (Appellate Brief) Motion for Leave to File a Brief and Brief
as Amici Curiae For Doctors John M. Adams, Willard M. Allen, Russell R. de
Alvarez, John A. Anderson, AllanC. Barnes, Robert H. Barter, Franklin C. Behrle,
Ralph C. Benson, Russell J. Blattner, Alfred M. Bo ngiovanni, William L.
Bradford, Willis E. Brown, Robert F. Chinnock, John F. J. Clark, Robert E.
Cooke, Edward C. Curnen, Jr., C. W. Daeschner, Jr., M. Edward Davis, Richard L.
Day, Floyd W. Denny, Albert Dorfman, Gordon W. Douglas, R. Gordon Dougla (Mar.
15, 1965)
•
1965 WL 92620 (Appellate Brief) Brief for Appellee (Mar. 09, 1965)
•
1965 WL 92600 (Appellate Brief) Motion for Leave to File Brief for the
American Civil Liberties Union and the Connecticut Civil Liberties Union as
Amici Curiae and Brief Amici Curiae (Feb. 25, 1965)
•
1965 WL 92619 (Appellate Brief) Brief for Appellants (Feb. 11, 1965)
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DOCUMENT
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