griswold v. connecticut and brown v. board of education and substantive due process

Before reviewing the two other concurring opinions in this fascinating case, I want to pause to ask questions about the right of privacy, the Constitution and the discovery of rights in the Constitution.

Any nominee to the US Supreme Court today will be grilled on his or her belief concerning whether a right to privacy exists in the United States Constitution. There is no language literally granting such a right. Indeed, in his dissent in Griswold Justice Potter Stewart made sort of a virtue of that silence and doggedly clung to the actual language of the Bill of Rights in concluding that there was no constitutional right of privacy. However, law review articles going back to 1890 and cases going back to early decades of the 20th century spoke about "private affairs" that needed to be protected by law or various rights that parents had to educate their children. The latter rights were not expressly stated in the Constitution but seemed, nevertheless, to be so fundamental that courts had to recognize them. Thus, the question arose, if some rights which were deemed fundamental were not expressly found in the language of Constitutuional or Amendment guarantees, on what basis were these "fundamental" rights to be teased out of the text and, indeed, what were they? Absent any new Constitutional Amendments, the Court's case-law jurisprudence over the years would be the way that that these new rights were "discovered." The Griswold Court discovered the right of privacy. Or, was it "invented?" That gets to the nub of the issue. How do we determine this? Let's take a brief detour in answering question.

Discovering/Inventing Rights and the Ghost of Lochner

I mentioned the Lochner case in the previous essay, but it is so important as to deserve a second mention. In 1905 the Lochner Court invalidated an 1897 NY State health and safety law regulating the number of hours a baker could work (60/week) and the working conditions in bakeries. The Court held that the word "liberty" in the 14th Amendment Due Process clause meant that workers had "liberty" to contract with employers for longer or shorter weeks, as they mutually decided. Therefore, by a 5-4 vote, the Court struck down the NY statute. This decision was immediately attacked by a broad and impressive array of Progressives (Roscoe Pound's article on "Liberty of Contract" may have helped him get his teaching position at Harvard in 1910). Their allegation was that this type of decision was merely the substitution of a court's for a legislature's preferences. The Supremes were thereby becoming a sort of "super legislature."

As time went on this type of activity earned the nickname "substantive due process," which law students for decades were trained to hate. But, truth be told, when I learned about "substantive due process" in law school and learned further that it was tied in some way to Lochner, I became confused. What was it about Lochner, I wondered, that made the decision "substantive due process" and why did everyone hate it?

Ironies Anyone?

Well, I just explained it. Lochner became despised because it was simply the substitution of a judicial decision for a legislative one. When people trashed the concept of "substantive due process," they were referring to the Court's becoming a "super legislature." Even more, I think they were trashing the notion of the Court becoming a conservative "super legislature." But the Lochner court, by any stretch of the imagination, was an activist one. They took their principle, even though its words were not literally in the Constitution, and rammed it down the throats of New York, invalidating a health and safety statute as a result. The decision was a conservative, but "activist" one, if an activist in constitutional cases can be defined as one who takes principles not literally embodied in the Constitution and uses them to invalidate state statutes.

Two generations later the Warren Court handed down two decisions which we studied in class (Brown--1954 and Griswold--1965). In the former the Court invalidated the "separate but equal" test of Plessy and required the desegregation of the public schools "with all deliberate speed." Though called an "activist" decision by many, one could characterize it as simply a constitutional decision which takes the word "equal" in "equal protection" very seriously/literally and considered that a desegregated mode of education was the best way to implement the meaning of the words "equal protection of the laws." The Brown Court used activist-type language--by overthrowing a precedent because separate but equal was "inherently" unequal--but in fact it need not be construed as such an activist decision. What is striking about it, however, is that it seemed to rely to a very great (and explicit) extent on social scientific data for its result.

But the same may not be said about Griswold. And here is the irony of Griswold. I think Griswold is quite a different type of decision than Brown. First, it was be decided under the Due Process rather than the Equal Protection Clause. This meant that it was rendered in the shadow of Lochner. Second, it claims to find a "right of privacy" in the Constitution even though that phrase doesn't appear. Third, it is an expression of liberal activism (in contrast to Lochner) where a phrase not found in the Constitution becomes the basis to invalidate a state statute. The majority will try to distance itself from a Lochner-type of "super legislature" approach, but the dissent of Justice Black chides it precisely on that ground. In other words, the majority would like to say that it can be distinguished from Lochner because it is a decision in the personal area rather than the economic area, and the Court has more leeway to invalidate statutes reaching personal life. But this distinction seems a bit hollow. Shouldn't the criterion simply be what you are doing to a state statute? Finally, it differs from Brown in the myriad (4) different approaches the Justices use to try to "locate" a right of privacy in the Constitution.

I have already said something about the first two theories. The next essay goes over all four of these theories in a bit more detail.

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