griswold v. connecticut and douglas and zone of privacy and emanation and penumbra

The purpose of this essay is to present the legal theories of those in the majority of this 7-2 decision invalidating a CT statute prohibiting the use of or abetting the use of contraceptives. Note, by way of introduction that this case (381 US 479) was only decided 41 years ago; before that time contraceptives were, in many states, illegal even if generally available and widely used. Planned Parenthood of CT provoked a legal challenge to an obsolete ('silly,' as dissenting Justice Stewart would have it) law in order to lay the legal foundations for the development of a more extensive doctrine of privacy. They hit a home run with this case.

Douglas Speaks

Though Justice William O. Douglas wrote the opinion of the Court, his reasoning had little resonance as time went on. Nevertheless, we should understand what he is doing here. He sought first to avoid one problem and then to develop a doctrinal approach to the Bill of Rights. First, the problem to be avoided--the Lochner problem. As Feldman points out, the Lochner decision is brooding over this case like a dark cloud. Lochner found that "freedom of contract" was implied or taught in the concept "liberty" in the Due Process clause of the 14th Amendment. This approach to that Amendment, known as "substantive due process" (because it discovers substantive and not simply procedural law in the due process clause), was shunned by more liberal Courts in the New Deal and post-WWII era. We noted that Chief Justice Earl Warren rested his decision in Brown on the equal protection clause of the 14th Amendment, thus neatly sidestepping the due process problems left over from Lochner.

Douglas is aware of all of this debate and so states his awareness near the beginning of the opinion:

"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" (482).

I wonder if merely identifying the demons of Lochner, where the Court was supposed to have sat as a "super-legislature," is the same as exorcising them. That is, is the Court in fact just "substituting" its judgment for the CT legislature in this case, even though the "silliness" of the law makes it much easier to get away with overturning it than it did for the Lochner Court to eliminate a health and safety regulation? I think you can argue that the Warren Court, like the Fuller Court in 1905, was applying one principle not expressly attested in the Constitution ("right of privacy;" it was "freedom of contract" in Lochner) and using this principle to disallow a validly-enacted state statute.

Well, we must get to the argument. Douglas, therefore, is gun shy of the 14th Amendment and makes little reference to it in the rest of the opinion, even though it is evident that the right of privacy, which resides in many of the Bill of Rights, is made applicable to the States through the 14th Amendment. He will find a right of privacy in the Bill of Rights. He argues from earlier precedent that rights beyond the technical language of the First Amendment were found in the First Amendment (such as the right to choose one's childrens's schools). This approach leads him to the point that "freedom of association," the right implicated here, is found in a "penumbra" of the First Amendment. "In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion." Privacy grows out of freedom of association which resides in a "penumbra" of the First Amendment.

Thus, the approach of Douglas is to see how much "stretch" or "give" there is in the wording of various freedoms protected in the Bill of Rights. He states his principle, which has been memorized and ridiculed by conservatives for the past 39 years:

"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" (484).

Douglas argues, therefore, that the right of privacy is a right which lives someplace in a penumbra that is an emanation from the text of the Bill of Rights. With this methodological statement on the table, he begins to prance through the Bill of Rights, finding a "zone of privacy" in the 3rd, 4th, and 5th Amendments. He concludes:

"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees" (485).

Because marriage is so important and essential to our society, and "intimate to the degree of being sacred," it falls within the zone of privacy which Douglas has discovered lurking in the penumbras of the emanations from constitutional guarantees.

Justice Goldberg and Others

Whew. That was quite some reasoning, even for a person who might embrace a more liberal theory of the "living" constitution. But, when you look closely at Justice Goldberg's concurrence, you are struck also by the originality of his thought, even though he tries to tie his point closely to the language of the Court's precedents. He does not hesitate to mention the due process clause of the 14th Amendment and says:

"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."

That is, he (along with Warren and Brennan) agrees with Douglas that they are not bound to the express language or "specific terms" in the Bill of Rights. But one has a sense that Douglas' penumbras and emanations were a little too much for the other Justices to stomach, and so they retreated to the safe language of "fundamental rights." But the striking thing that this concurring opinion does is to try to resurrect an amendment that had long been neglected and to fill its rather empty shell with new content--the right of privacy. I am not sure whether Douglas' or Goldberg's theory is a bigger "stretch."

Here is what Goldberg does. He relies heavily on James Madison's account of why he introduced and supported what became the 9th Amendment. Some might have thought that the first eight amendments of the Bill of Rights exhaustively enumerated all the individual protections envisioned by the Founding Fathers. But, in Madison's words, "No language is so copious as to supply words and phrases for every complex ideas." Thus, Goldberg concludes:

"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" (488).

Thus, in a nutshell, he argues that the Ninth Amendment is the place to look to find other unenumerated rights, among which is the right of privacy. The right of privacy resides there, however, because it is a fundamental right rooted deeply in the traditions and conscience of the American people.

Conclusion

Justice Goldberg's argument is ingenious and takes a good deal faith to buy it. The first question that comes to mind, quite naturally, is "what else is lurking beneath the surface of this once-placid amendment?" Is it the place where judicial preference, which can tie itself convincingly to no other clause, must find its rest? Does it have a content on its own separate from the first eight amendments? How can we determine what indeed is a Ninth Amendment right?

Some of these questions may have been on the minds of two other concurring Justices, because they devised even different rationales for their concurrence. The next essay considers their opinions.

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