Griswold v. Connecticut, the U.S. Supreme Court Discussion


Griswold v. Connecticut, the U.S. Supreme Court

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stated that “specific guarantees in the Bill of Rights have


, formed by


from those guarantees that help give them life and substance.”

1. Discuss the meaning and implications of Griswold’s penumbras and emanations

2. Describe the legal basis for an unenumerated right that might be located within these purported constitutional regions.

No. 496. Argued March 29-30,’ 1965.-Decided June 7, 1965.
Appellants, the Executive Director of the Planned Parenthood League
of Connecticut, and its medical director, a licensed physician, were
convicted as accessories for giving married persons information and
medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife’9
use. A Connecticut statute makes it a crime for any person to
use any drug or article to prevent conception. Appellants claimed
that the accessory statute as applied violated the Fourteenth
Amendment. An intermediate appellate court and the State’s
highest court affirmed the judgment. Held:
1. Appellants have standing to assert the constitutional rights
of the married people. Tileston v. Ullman, 318 U. S. 44, distinguished. P. 481.
2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of
specific guarantees of the Bill of Rights. Pp. 481-486.
151 Conn. 544, 200 A. 2d 479, reversed.
Thomas I. Emerson argued the cause for appellants.
With him on the briefs was Catherine G. Roraback.
Joseph B. Clark argued the cause for appellee.
him on the brief was Julius Maretz.
Briefs of amici curiae, urging reversal, were filed by
Whitney North Seymour and Eleanor M. Fox for Dr.
John M. Adams et al.; by Morris L. Ernst, Harriet F.
Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by Alfred L. Scanlon
for the Catholic Council on Civil Liberties, and by Rhoda
H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for
the American Civil Liberties Union et al.
Opinion of the Court.
381 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the
Appellant Griswold is Executive Director of the
Planned Parenthood League of Connecticut. Appellant
Buxton is a licensed physician and a professor at the Yale
Medical School who served as Medical Director for the
League at its Center in New Haven-a center open and
operating from November 1 to November 10, 1961, when
appellants were arrested.
They gave information, instruction, and medical advice
to married persons as to the means of preventing conception. They examined the wife and prescribed the best
contraceptive device or material for her use. Fees were
usually charged, although some couples were serviced
The statutes whose constitutionality is involved in
this appeal are §§ 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:
“Any person who uses any drug, medicinal article
or instrument for the purpose of preventing conception shall be fined not less than fifty ‘dollars or imprisoned not less than sixty days nor more than one
year or be both fined and imprisoned.”
Section 54-196 provides:
“Any person who assists, abets, counsels, causes,
hires or commands another to commit any offense
may be prosecuted and punished as if he were the
principal offender.”
The appellants were found guilty as accessories and
fined $100 each, against the claim that the accessory
statute as so applied’violated the Fourteenth Amendment.
The Appellate Division of the Circuit Court affirmed.
The Supreme Court of’ Errors affirmed that judgment.
151 Conn. 544, 200 A. 2d 479. We noted probable jurisdiction. 379 U. S. 926.
Opinion of the Court.
We think that appellants have standing to raise the
constitutional rights of the married people with whom
they had a professional relationship. Tileston v. Ullman,
318 U. S. 44, is different, for there the plaintiff seeking
to represent others asked for a declaratory judgment.
In that situation we thought that the requirements of
standing should be strict, lest the standards of “case or
controversy” in Article III of the Constitution become
blurred. Here those doubts are removed by reason of a
criminal conviction for serving married couples in violation of an aiding-and-abetting statute. Certainly the
accessory should have standing to assert that the offense
which he is charged with assisting is not, or cannot constitutionally be, a crime.
This case is more akin to Truax v. Raich, 239 U. S.
33, where an employee was permitted to assert the rights
of his employer; to Pierce v. Society of Sisters, 268
U. S. 510, where the owners of private schools were
entitled to assert the rights of potential pupils and their
parents; and to Barrows v. Jackson, 346 U. S. 249,
where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the
covenantors because she had conveyed her property to
Negroes, was allowed to raise the issue that enforcement
of the covenant violated the rights of prospective Negro
purchasers to equal protection, although no Negro was a
party to the suit. And see Meyer’v. Nebraska, 262 U. S.
390; Adler v. Board of Education, 342 U. S. 485;
NAACP v. Alabama, 357 U. S.449; NAACP v. Button,
371 U. S. 415. The rights of husband and wife, pressed
here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who
have this kind of confidential relation to them.
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
Opinion of the Court.
381 U. S.
suggest that Lochner v. New York, 198 U. S. 45, should
be our guide. But we decline that invitation as we did in
West Coast Hotel Co. v. Parrish,300 U. S. 379; Olsen v.
Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern
Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348
U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490.
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.
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 edu.cate one’s children as one chooses is made applicable to
the States by the force of the First and Fourteenth
Amendments. By Meyer v. 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 axid 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. Struthers, 319 U. S.
1J1, 143) and freedom of inquiry, freedom of thought,
and freedom to teach (see Wieman v. Updegraff, 344 U. S.
183, 195)-indeed the freedom of the entire university
community. Sweezy v. New Hampshire, 354 U. S. 234,
249-250, 261-263; Barenblatt v. United States, 360 U. S.
109, 112; Baggett v. Bullitt, 377 U. S. 360, 369. Without
Opinion of the Court.
those peripheral rights the specific rights would be less
secure. And so we reaffirm the principle of the Pierce
and the Meyer cases.
In NAACP v. Alabama, 357 U. S. 449, 462, 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. In Schware
v. Board of Bar Examiners, 353 U. S. 232, 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) and was not action of a kind proving bad moral
character. Id., at 245-246.
Those cases involved more than the “right of assembly”-a right that extends to all irrespective of their race
or ideology. De Jonge v. Oregon, 299 U. S. 353. The right
of “association,” like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to
attend a meeting; it includes the right to e:,press 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.
Opinion of the Court.
381 U. S.
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. Ulinan, 367 U. S.497, 516-522 (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
The Fourth and Fifth Amendments were described in
Boyd v. United States, 116 U. S. 616, 630, as protection
against all governmental invasions “of the sanctity of a
We recently reman’s home and the privacies of life.”
*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 farther 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 offence; 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 offence,–it is the invasion
of this sacred right which underlies and constitutes the essence of
Opinion of the Court.
ferred in Mapp v. Ohio, 367 U. S. 643, 656, 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. Rtv, 216 (1960).
We have had many controversies over these penumbral
rights of “privacy and repose.” See, e. g., Breardv. Alexandria,341 U. S. 622, 626, 644; Public Utilities Comm’n
v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167;
Lanza v. New York, 370 U. S. 139; Frank v. Maryland,
359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 541.
These cases bear witness that the right of privacy which
presses for recognition here is a legitimate one.
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 freedofns.”
NAACP v. Alabama, 377 U. S. 288, 307. Would we allow
the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The
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.
GOLDBERG, J., concurring.
381 U. S.
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.
whom THE CHIEF JM’sTIcE 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 incorporates all of the
first eight Amendments (see my concurring opinion
in Pointer v. Texas, 380 U. S. 400, 410, and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen v.
Hurley, 366 U.,S. 117, 154), 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 ‘ is supported both by numerMR. JUSTICE GOLDBERG,
1 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 530. He would require a more explicit guarantee than the
one which the Court derives from several constitutional amendmebts.
This Court, however, has never held that the Bill of Rights or the
GOLDBERG, J., concurring.
ous 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 484. I add these words to emphasize the relevance of
that Amendment to the Court’s holding.
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 rariked
as fundamental.” Snyder v. Massachusetts, 291 U. S.
97, 105. In Gitlow v. New York, 268 U. S. 652, 666, 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 thp fundamental personal
rights and ‘liberties’ protected by the due process
clause of the Fourteenth Amendment from impairment by the States.” (Emphasis added.)
Fourteenth Amendment protects only those rights that the Constitution specifically mentions by name. See, e. g., Bolling v. Sharpe,
347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent
v. Dulles, 357 U. S. 116; Carrington v. Rash, 380 U. S. 89, 96;
Schware v. Board of Bar Examiners, 353 U. S. 232; NAACP v. Alabama, 360 U. S. 240; Pierce v. Society of Sisters, 268 U. S. 510; Meyer
v. Nebraska, 262 U. S. 390. 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., at 499, 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.
381 U. S.
And, in Meyer v. Nebraska, 262 U. S. 390, 399, 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 iup 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 rights. 2 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.
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 ‘ could not be sufficiently broad to cover all es; See, e. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226;
Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U. S. 296;
Wolf v. Colorado, 338 U. S.25; Robinson v. California,370 U. S.660;
Gideon v. Wainwright, 372 U. S.335; Malloy v. Hogan, 378 U. S. 1;
Pointer v. Texas, supra; Griffin v. California,380 U. S. 609.
Madison himself had previously pointed out the dangers of inaccuracy resultirng from the fac.t that “no language is so copious as to
supply words and phrases for every complex idea.” The Federalist,
To. 37. (Cooke ed. 1961), at 236.
J., concurring.
sential rights and that the specific mention of certain
rights would be interpreted as a denial that others were
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
4 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 isno 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 4o 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.
381 U. S.
last clause of the fourth resolution [the Ninth
Amendment].” I Annals of Congress 439 (Gales
and Seaton ed. 1834).
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
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.” 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.3
While this Court has had little occasion to interpret the
Ninth Amendment,, “[i]t cannot be presumed that any
5The Tenth Amendment similarly made clear that the States and
the people retained all those powers not expressly delegated to the
Federal Government.
6This 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
GOLDBERG, J., concurring.
clause in the constitution is intended to be without
Marbury v. Madison, 1 Cranch 137, 174.
interpreting the Constitution, “real effect should be given
to all the words it uses.” Myers v. United States, 272
U. S. 52, 151. 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 deep-rooted 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 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
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; Tennessee
Electric Power Co. v. TVA, 306 U. S. 118, 143-144; and Ashwander
v. TVA, 297 U. S. 288, 330-331. See also Calder v. Bull, 3 DalI.
386, 388; Loan Assn. v. Topeka, 20 Wall. 655, 662-663.
In United Public Workers v. Mitchell, supra, at 94-95, the Court
stated: “We accept appellants’ 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.”
1., concurring.
381 U. S.
“[t]he enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.” (Emphasis added.)
A dissenting opinion suggests that my interpretation
of the Ninth Amendment somehow “broaden[s] the
powers of this Court.” Post, at 520. 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 ia Adamson v. California,332 U. S. 46, 68,
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 Foirteenth
Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the
States. See, e. g., Boling v. Sharpe, 347 U. S. 497;
Aptheker v. Secretary of State, 378 U. S. 500; Kent v.
Dulles, 357 U. S. 116; Cantwell v. Connecticut, 310 U. S.
296; NAACP v. Alabama, 357 U. S. 449; Gideon v. Wain-
wright, 372 U. S. 335; New York Times Co. v. Sullivan,
376 U. S. 254. 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 author-
J., concurring.
ity 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 amendnents, 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.
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. Massachusetts, 291 U. S.97, 105. 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 which lie at the base of all our civil and political institutions’. . . .” Powell v. Alabama, 287 U. S.45,
67. “Liberty” also “gains content from the emanations
of . . . specific [constitutional] guarantees” and “from
experience with the requirements of a free society.” Poe
773-305 0-65-36
J., concurring.
381 U. S.
v. Ullman, 367 U. S. 497, 517 (dissenting opinion of MR.
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. Mr. Justice Brandeis,
dissenting in Olmstead v. United States, 277 U. S. 438,
478, 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 con-
ditions 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 alonethe most comprehensive of rights and the right most
valued by civilized men.”
7 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,
-at 413-414, 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 discre-
tionary 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.
J., concurring.
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. In Pierce v.
Society of Sisters, 268 U. S. 510, 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. As this
Court said in Prince v. Massachusetts, 321 U. S. 158, at
166, 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: “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 Constitutional
. 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 Con-
J., concurring.
381 U. S.
stitution 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 527, 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 528. Elsewhere,
I have stated that “[w]hile I quite agree with Mr. Justice
State may… serve as a
Brandeis that… ‘a…
laboratory; and try novel social and economic experiments,’ New State Ice Co. v. Liebmann, 285 U. S.262, 280,
311 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental lib, The vice of the dissenters’
erties of citizens .. . .”
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
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
8 Pointer v. Texas, supra, at 413. See also the discussion of my
Brother DOUGLAS, Poe v. Ullman, supra, at 517-518 (dissenting
GOLDBERG, J., concurring.
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
In a long series of cases this Court has held that where
fundamental personal liberties are involved, they may not
be 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. Little Rock, 361
U. S.516, 524. The law must be shown “necessary, and
not merely rationally related, to the accomplishment of a
permissible state policy.” McLaughlin v. Florida, 379
U. S. 184, 196. See Schneider v. Irvington, 308 U. S.
147, 161.
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 “neces-
J., concurring.
381 U. S.
sary . . .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 extramarital 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; NAACP v. Alabama, 377 U. S. 288, 307-308;
McLaughlin v. Florida, supra, at 196. 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. The
State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication. See Conn. Gen. Stat. §§ 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.
Alabama, supra, at 307. See McLaughlin v. Florida,
supra, at 196.
Finally, it should be said of the Court’s holding today
that it in no way interferes with a State’s proper regula-
J., concurring in judgment.
tion of sexual promiscuity or misconduct. As my Brother
HARLAN so well stated in his dissenting opinion in Poe
Ullman, supra, at 553.
“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.”
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.
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
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.
J., concurring in judgment.
381 U. S.
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. Texas, 380 U. S. 400, 408, and Griffin v. California, 380 U. S. 609, 615, and my dissenting opinion in
Poe v. Ullman, 367 U. S. 497, 522, at pp. 539-545.
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. Connecticut, 302 U. S.
319, 325. 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, inmy 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
HARLAN,. J., concurring
in judgment.
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. California, 342 U. S. 165, 170.
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. 522). Need one go further than to
recall last Term’s reapportionment cases, Wesberry v.
Sanders, 376 U. S. 1, and Reynolds v. Sims, 377 U. S. 533,
where a majority of the Court “interpreted” “by the
People” (Art. I, § 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; 377 U. S., at 589.
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. California, 332 U. S. 46, 59 (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 recogni-
J., concurring in judgment.
381 U. S.
tion 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.*
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.
I 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. Nebraska, 262
U. S. 390, 399, and “the liberty . . . to direct the
upbringing and education of children,” Pierce v. Society
of Sisters, 268 U. S. 510, 534-535, and that these are
among “the basic civil rights of man.” Skinner v. Oklahoma, 316 U. S. 535, 541. These decisions affirm that
there is a “realm of family life which the state cannot
enter” without substantial justification. Prince v. Massachusetts, 321 U. S.158, 166. Surely the right invoked
in this case, to be free of regulation of the intimacies of
*Indeed, my Brother BLACK, in arguing his thesis, is forced to lay
aside a host of cases in which the Court has recognized fundamental
rights in the Fourteenth Amendment without specific reliance upon
the Bill of Rights. Post, p. 512, n. 4.
WHITE, J., concurring
in judgment.
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
(opinion of Frankfurter, J.).
The Connecticut anti-contraceptive statute deals rather
substantially with 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 antiuse 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-todate 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;
Skinner v. Oklahoma, 316 U. S: 535; Schware v. Board of
Bar Examiners, 353 U. S. 232; McLaughlin V. Florida,
379 U. S. 184, 192.
An examination of the justification offered, however,
cannot be avoided by saying that the Connecticut antiuse statute invades a protected area of privacy and association or that it demeans the marriage relationship.
The nature of the right invaded is pertinent, to be sure,
for statutes regulating sensitive areas of liberty do, under
J., concurring in judgment.
381 U. S.
the cases of this Court, require “strict scrutiny,” Skinner
v. Oklahoma, 316 U. S. 535, 541, 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..
“Where there is a significant encroachment upon personal
liberty, the State may prevail only upon showing a
subordinating interest which is compelling.” Bates v.
Little Rock, 361 U. S.516, 524. See also McLaughlin v.
Florida, 379 U. S.184. 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.*
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. West Virginia, 129 U. S.
114; Jacobson v. Massachusetts, 197 U. S. 11; Douglas v. Noble, 261
U. S. 165; Meyer v. Nebraska, 262 U. S.390; Pierce v. Society of
Sisters, 268 U. S. 510; Schware v. Board of Bar Examiners, 353 U. S.
232; Aptheker v. Secretary of State, 378 U. S. 500; Zemel v. Rusk,
381 U. S. 1.
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. West Virginia, 129 U. S.114. Cf. Slochower v. Board
of Education, 350 U. S. 551; Wieman v. Updegrafj, 344 U. S. 183.
And see Ex parte Secombe, 19 How. 9, 13. 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
Douglas v. Noble, 261 U. S.165; Cumcapacity to practice law.
WHITE, J., concurring in judgment.
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; Martin v. Walton, 368 U. S.25, 28 (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. Boardof Bar Examiners,353 U. S.232, 239.
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
mings v. Missouri, 4 Wall. 277, 319-320. Cf. Nebbia v. New York,
291 U. S. 502. 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. Cf. Martin v. Walton, 368 U. S.25, 26 (DOUGLAS, J., dissenting).
J., concurring in judgment.
381 U. S.
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. 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. $. 497, 502. 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 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
BLACK, J., dissenting.
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.
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 to my Brethren of the
majority and my Brothers HARLAN, WHITE and GOLD-
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
BLACK, J., dissenting.
381 U. S.
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; NAACP v. Button, 371 U. S. 415. But speech
is one thing; conduct and physical activities are quite another. See, e. g., Cox v. Louisiana,379 U. S. 536, 554-555;
Cox v. Louisiana, 379 U. S. 559, 563-564; id., 575-584
(concurring opinion); Giboney V. Empire Storage & Ice
Co., 336 U. S. 490; cf. Reynolds v. United States, 98 U. S.
145, 163-164. 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 that 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 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 resp’ect
to certain activities. Such, for example, is the Fourth
J., dissenting.
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
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 6f the Firsi Amendment in construingit, 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 (concurring opinion); cases collected in City of El Paso v.
Simmons, 379 U. S. 497, 517, n. 1 (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 of privacy” as an emanation from
773-305 0-65-37
J., dissenting.
381 U. S.
one or more constitutional provisions.’
I like my privacy
as well as the next one, but I am nevertheless compelled
to admit that government has a right to invade it unless
prohibited by some specific constitutional provision. For
these reasons’I cannot agree. with the Court’s judgment
and the reasons it gives for holding this Connecticut law
This brings me to the arguments made by my Brothers
HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law Brothers HARIAN 2 and WHITE would in-
validate 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
to privacy” appears first to have gained curby Messrs. Warren and (later Mr. Juswritten
tice) Brandeis in 1890 which urged that States should give some form
of tork 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 sucii a cause
of acfion, 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
1The plrase “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. 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.”
2 Brother HARLAN’S views are spelled out at greater length in his
dissenting opinion, in Poe v. Ullman, 367 U. S. 497, 539-555.
J., dissenting.
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.
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 considers to be arbitrary, capricious, unreasonable, or oppressive, or on 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.”
If these formulas
based on “natural justice,” or others which mean the same
thing,4 are to prevail, they require judges to determine
3 Indeed, Brother WHITE appears to. have gone beyond past
nouncements of the natural law due process theory, which at least
said that the Court should exercise this unlimited power to declare
state acts unconstitutional with “restraint.” He now says that,
instead of being presumed constitutional (see Munn v. Illinois, 94
U. S.
113, 123; compare Adkins v. Children’s Hospital,261 U. S. 525, 544),
the statute here “bears a substantial burden of justification
attacked under the Fourteenth Amendment.”
4 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
BLACK, J., dissenting.
381 U. S.
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
which “shocks the conscience,” Rochin v. California,342 U. S. 165,
172, sufficiently to “shock itself into the protective arms of the Constitution,” Irvine v. California,347 U. S. 128, 138 (concurring opinion). It has been urged that States may not run counter to the
“decencies. of civilized conduct,” Rochin, 8upra, at 173, or “some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental,” Snyder v. Massachusetts,
291 U. S. 97, 105, or to “those canons of decency and fairness which
express the notions of justice of English-speaking peoples,” Malinski
v. New York, 324 U. S. 401, 417 (concurring opinion), or to “the
community’s sense of fair play and decency,” Rochin, supra, at 173.
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.
New York, 198 U. S. 45, 56. States, under this philosophy, cannot
act in conflict with “deeply rooted feelings of the community,”
Haley v. Ohio, 332 U. S. 596, 604 (separate opinion), or with “fundamental notions of fairness and justice,” id., 607. See also, e. g., Wolf
v. Colorado, 338 U. S. 25, 27 (“rights . . . basic to our free society”);Hebert v. Louisiana, 272 U. S. 312, 316 (“fundamental principles
of liberty and justice”); Adkins v. Children’s Hospital, 261 U. S.
525, 561 (“arbitrary restraint of . . . liberties”); Betts v. Brady,
$16 U. S. 455, 462 (“denial of fundamental fairness, shocking to
the universal’ sense of justice”); Poe v. Ullman, 367 U. S. 497, 539
t(dissenting opinion) ‘(“intolerable and unjustifiable”). 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, post, p. 618, at 631.
J., dissenting.
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, 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.” 5 Such an appraisal
of the wisdom of legislation is an attribute of the power
to make laws, not of the power to interpret them.
use by federal courts of such a formula or doctrine
whatnot to veto federal or state laws simply takes
from Congress and States the power to make laws
on their own judgment of fairness and wisdom and
transfers that power to this Court for ultimate determination-a power which was specifically denied to federal
courts by the convention that framed the Constitution.’
5See 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,’
‘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. California, 342 U. S. 165, 174 (concurring
But see Linkletter v. Walker, supra, n. 4, at 631.
6 This Court held in Marbury v. Madison,
1 Cranch 137, that this
Court -has power to invalidate laws on the ground
that they exceed
J., dissenting.
381 U. S.
Of the cases on which my Brothers WHiTE and GOLD-
BERG rely so heavily, undoubtedly the reasoning of two of
them supports their result here-as would that of a num’ber of others which they do not bother to name, e. g.,
.the constitutional power of Congress or violate some specific prohibition of the Constitution. S~e also Fletcher v. Peck, 6 Cranch 87.
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
wording illegible] of the members of each branch.” I 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
pTesumed 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
BLACK, J., dissenting.
Lochner V. New York, 198 U. S. 45, Coppage v. Kansas,
236 U. S. 1, Jay Burns Baking Co. v. Bryan, 264 U. S.
504, and Adkins v. Children’s Hospital, 261 U. S. 525.
The two they do cite and quote from, Meyer v. Nebraska,
262 U. S. 390, and Pierce v. Society of Sisters, 268 U. S.
510, were both decided in opinions by Mr. Justice
McReynolds which elaborated the same natural law due
process philosopy 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, 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
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
J., dissenting.
381 U. S.
state law forbidding the teaching of modern foreign languages to young children in the schools.! 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. 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, 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, Shelton v. Tucker,
364 U. S. 479, and Schneider v. State, 308 U. S. 147, 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.’
See Brotherhood of Railroad Trainmen v. Virginia ex rel.
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 also asserted the heretofore
discredited doctrine that the Due Process Clause prevented States
from interfering with “the right of the individual to contract.” 262
U. S., at 399.
” Compare Poe v. Ullman, 367 U. S., at 543-544 (HARLAN, J.,
9 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 lsws. See McLaughlin v. Florida,379 U. S. 184.
J., dissenting.
Virginia State Bar, 377 U. S. 1, 7-8.”1 Brothers WHITE
and GOLDBERG 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 any law restricting “liberty” as
my Brethren define “liberty.” This would mean at the
10 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. Massachusetts,321 U. S. 158, upheld a state
law forbidding minors from selling publications on the streets. Kent v.
Dulles, 357 U. S. 116, 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, 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, to support such a finding. Compare Thompson v.
City of Louisville, 362 U. S. 199, in which the Court relied in part
on Schware. See also Konigsberg v. State Bar, 353 U. S. 252. And
Bolling v. Sharpe, 347 U. S. 497, 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. Florida,309
U. S. 227, 240-241. With one exception, the other modem 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, 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.
J., dissenting.
381 U. S.
very least, I suppose, that every state criminal statutesince it must inevitably’ curtail “liberty” to some extentwould be suspect; and would have to be justified to this
My Brother GOLDBERG has adopted the recent discovery 11 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
11 Compare Adkins v. Children’s Hospital, 261 U. S. 525, 568
(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.”
12 See Patterson, The Forgotten Ninth Amendment (1955).
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 cQntrol 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
cqnstituti6nal framework within which to meet this and similar
problems which are likely to arise.” Id., at 798.
J., dissenting.
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 the’y can avoid considering them. Our
Court certainly has no machinery with which to take a
Gallup Poll.1′ And 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 ‘” 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 con13 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 th;9 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.
14U. 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.”
J., dissenting.
381 U. S.
sequently insecure.” 15 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.
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
15 1 Annals of Congress 439. See also II Story, Commentaries on
the Constitution of the United States (5th ed. 1891): “This clause
wqs manifestly introduced to prevent any perverse or ingenious mis-
application of the well-known maxim, that an affirmation in particulor cases implies a negation in all others; and, e converso, that a
0egation in particular cases implies an affirmation in all others. The
tnaxim, 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
BLACK, J., dissenting.
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 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.1″
16 Justice Holmes in one of his last dissents, written in reply to Mr.
Justice McReynolds’ opinion for the Court in Baldwin v. Missouri,
281 U. S. 586, 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 Fourteanth Amendment in cutting down what I believe to be the constitutional rights
of the States. As the decisions now stand, I see hardly any 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 we ought to remember the great caution shown by the Consti-
J., dissenting.
381 U. S.
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 td the people or
their selected agents for ratification. That method of
change was good for our Fathers, and being somewhat
old-fashioned 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 anduncertain 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. New York, 198 U. S. 45. 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; Olsen v. Nebraska ex rel. Western
Reference & Bond Assn., 313 U. S. 2,36, and many other
tution in limiting the power of the States, and should be slow to con-
strue 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 Letters (Howe ed. 1941) 267-268.
BLACK, J., dissenting.
opinions.” See also Lochner v. New York, 198 U. S.
45, 74 (Holmes, J., dissenting).
In Ferguson v. Skrupa, 372 U. S. 726, 730, this Court
two years ago said in an opinion joined by all the Justices
but one 18 that
“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, which had held state laws regulating
ticket brokers to be a denial of due process of law.” Gold
E. g., in Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423,
this Court held that “Our recent decisions make plain that we do not
sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare.”
Compare Gardner v. Massachusetts, 305 U. S. 559, 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.
18 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 (dissenting opinion), did not join the Court’s opinion in Ferguson v.
19 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.
J., dissenting.
381 U. S.
v. DiCarlo, 380 U. S. 520. 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.”
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 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
Nicchia v. New York, 254 U. S. 228, 231, 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. California, 342 U. S. 165, 175, “1 believe that
faithful adherence to the specific guarantees in the Bill of Rights in20 Compare
sures a more permanent protection of individual liberty than that
which can be afforded by the nebulous standards” urged by my concurring Brethren today.
J., dissenting.
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 (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. California, 332 U. S. 46, 90-92 (dissenting
“Since Marbury v. Madison, 1 Cranch 137, 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 limit773-305 0-65-38
J., dissenting.
381 U. S.
less 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.
Pipeline Co., 315 U. S. 575, 599, 601, n. 4.” 21 (Footnotes omitted..)
The late Judge Learned Hand, after emphasizing his view
that judges should not 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,” 22 made the statement, with which
I fully agree, that:
“For myself it would be most irksome to be
ruled by a bevy of Platonic Guardians, even if I
21 Gideon v. Wainw.right, 372 U. S. 335, and similar cases applying
specific Bill of Rights provisions to the States do no…

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