[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,
unless 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)
END OF DOCUMENT
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