|||SUPREME COURT OF THE UNITED STATES
381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510
|||June 7, 1965
|||GRISWOLD ET AL.
|||APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT.
|||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. With him on the brief was
|||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.
|||Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
|||The opinion of the court was delivered by: Douglas
|||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's 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.
|||MR. JUSTICE DOUGLAS delivered the opinion of the Court.
|||Appellant Griswold is Executive Director of the Planned Parenthood League
of Connecticut. Appellant Buxton is a licensed physician and a professor
at the Yale Medical School who served as Medical Director for the League
at its Center in New Haven -- a center open and operating from November
1 to November 10, 1961, when appellants were arrested.
|||They gave information, instruction, and medical advice to married persons
as to the means of preventing conception. They examined the wife and prescribed
the best contraceptive device or material for her use. Fees were usually
charged, although some couples were serviced free.
|||The statutes whose constitutionality is involved in this appeal are §§
53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The
|||"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
|||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.
|||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
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 educate one's children
as one chooses is made applicable to the States by the force of the First
and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity
is given the right to study the German language in a private school. In
other words, the State may not, consistently with the spirit of the First
Amendment, contract the spectrum of available knowledge. The right of freedom
of speech and press includes not only the right to utter or to print, but
the right to distribute, the right to receive, the right to read (Martin
v. Struthers, 319 U.S. 141, 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 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 express one's attitudes or philosophies
by membership in a group or by affiliation with it or by other lawful means.
Association in that context is a form of expression of opinion; and while
it is not expressly included in the First Amendment its existence is necessary
in making the express guarantees fully meaningful.
|||The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help give
them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting
opinion). Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers
"in any house" in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the "right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment. The Ninth
Amendment provides: "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people."
|||The Fourth and Fifth Amendments were described in Boyd v. United States,
116 U.S. 616, 630, as protection against all governmental invasions "of
the sanctity of a man's home and the privacies of life."* We recently referred
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. Rev. 216 (1960).
|||We have had many controversies over these penumbral rights of "privacy
and repose." See, e. g., Breard v. 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
freedoms." 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 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.
|||JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join,
|||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 *fn1
is supported both by numerous 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
|||The Court stated many years ago that the Due Process Clause protects those
liberties that are "so rooted in the traditions and conscience of our people
as to be ranked as fundamental." Snyder v. 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 the fundamental personal rights and 'liberties'
protected by the due process clause of the Fourteenth Amendment from impairment
by the States." (Emphasis added.)
|||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 up children . . . ."
|||This Court, in a series of decisions, has held that the Fourteenth Amendment
absorbs and applies to the States those specifics of the first eight amendments
which express fundamental personal rights. *fn2
The language and history of the Ninth Amendment reveal that the Framers
of the Constitution believed that there are additional fundamental rights,
protected from governmental infringement, which exist alongside those fundamental
rights specifically mentioned in the first eight constitutional amendments.
|||The Ninth Amendment reads, "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people." The Amendment is almost entirely the work of James Madison. It
was introduced in Congress by him and passed the House and Senate with little
or no debate and virtually no change in language. It was proffered to quiet
expressed fears that a bill of specifically enumerated rights *fn3
could not be sufficiently broad to cover all essential rights and that the
specific mention of certain rights would be interpreted as a denial that
others were protected. *fn4
|||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 last clause of the fourth resolution [the Ninth Amendment]."
I Annals of Congress 439 (Gales and Seaton ed. 1834).
|||Justice Story wrote of this argument against a bill of rights and the
meaning of the Ninth Amendment:
|||"In regard to . . . 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.
|||While this Court has had little occasion to interpret the Ninth Amendment,
*fn6 "it cannot be presumed that
any clause in the constitution is intended to be without effect." Marbury
v. Madison, 1 Cranch 137, 174. In 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 "the 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 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 in 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 Fourteenth Amendments protect certain fundamental personal
liberties from abridgment by the Federal Government or the States. See,
e. g., Bolling v. Sharpe, 347 U.S. 497; 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. Wainwright, 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 authority of the Court; rather
it serves to support what this Court has been doing in protecting fundamental
|||Nor am I turning somersaults with history in arguing that the Ninth Amendment
is relevant in a case dealing with a State's infringement of a fundamental
right. While the Ninth Amendment -- and indeed the entire Bill of Rights
-- originally concerned restrictions upon federal power, the subsequently
enacted Fourteenth Amendment prohibits the States as well from abridging
fundamental personal liberties. And, the Ninth Amendment, in indicating
that not all such liberties are specifically mentioned in the first eight
amendments, is surely relevant in showing the existence of other fundamental
personal rights, now protected from state, as well as federal, infringement.
In sum, the Ninth Amendment simply lends strong support to the view that
the "liberty" protected by the Fifth and Fourteenth Amendments from infringement
by the Federal Government or the States is not restricted to rights specifically
mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell,
330 U.S. 75, 94-95.
|||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 conscience of our people" to determine
whether a principle is "so rooted . . . 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 guarantees" and "from experience with the requirements of a
free society." Poe v. Ullman, 367 U.S. 497, 517 (dissenting opinion of MR.
JUSTICE DOUGLAS). *fn7
|||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 conditions
favorable to the pursuit of happiness. They recognized the significance
of man's spiritual nature, of his feelings and of his intellect. They knew
that only a part of the pain, pleasure and satisfactions of life are to
be found in material things. They sought to protect Americans in their beliefs,
their thoughts, their emotions and their sensations. They conferred, as
against the Government, the right to be let alone -- the most comprehensive
of rights and the right most valued by civilized men."
|||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
right. . . . Of this whole 'private realm of family life' it is difficult
to imagine what is more private or more intimate than a husband and wife's
|||The entire fabric of the Constitution and the purposes that clearly underlie
its specific guarantees demonstrate that the rights to marital privacy and
to marry and raise a family are of similar order and magnitude as the fundamental
rights specifically protected.
|||Although the Constitution does not speak in so many words of the right
of privacy in marriage, I cannot believe that it offers these fundamental
rights no protection. The fact that no particular provision of the Constitution
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
"while I quite agree with Mr. Justice Brandeis that . . . 'a . . . State
may . . . serve as a laboratory; and try novel social and economic experiments,'
New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311 (dissenting opinion),
I do not believe that this includes the power to experiment with the fundamental
liberties of citizens . . . ." *fn8
The vice of the Dissenters' views is that it would permit such experimentation
by the States in the area of the fundamental personal rights of its citizens.
I cannot agree that the Constitution grants such power either to the States
or to the Federal Government.
|||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 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
|||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 interest which is compelling" or that it is "necessary
. . . to the accomplishment of a permissible state policy." The State, at
most, argues that there is some rational relation between this statute and
what is admittedly a legitimate subject of state concern -- the discouraging
of extra-marital relations. It says that preventing the use of birth-control
devices by married persons helps prevent the indulgence by some in such
extra-marital relations. The rationality of this justification is dubious,
particularly in light of the admitted widespread availability to all persons
in the State of Connecticut, unmarried as well as married, of birth-control
devices for the prevention of disease, as distinguished from the prevention
of conception, see Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582. But,
in any event, it is clear that the state interest in safeguarding marital
fidelity can be served by a more discriminately tailored statute, which
does not, like the present one, sweep unnecessarily broadly, reaching far
beyond the evil sought to be dealt with and intruding upon the privacy of
all married couples. See Aptheker v. Secretary of State, 378 U.S. 500, 514;
NAACP v. Alabama, 377 U.S. 288, 307-308; McLaughlin v. Florida, supra, at
196. Here, as elsewhere, "precision 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,
|||Finally, it should be said of the Court's holding today that it in no
way interferes with a State's proper regulation of sexual promiscuity or
misconduct. As my Brother HARLAN so well stated in his Dissenting opinion
in Poe v. 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 the details of
|||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.
|||JUSTICE HARLAN, Concurring in the judgment.
|||I fully agree with the judgment of reversal, but find myself unable to
join the Court's opinion. The reason is that it seems to me to evince an
approach to this case very much like that taken by my Brothers BLACK and
STEWART in Dissent, namely: the Due Process Clause of the Fourteenth Amendment
does not touch this Connecticut statute unless the enactment is found to
violate some right assured by the letter or penumbra of the Bill of Rights.
|||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, in my opinion, on its own bottom.
|||A further observation seems in order respecting the justification of my
Brothers BLACK and STEWART for their "incorporation" approach to this case.
Their approach does not rest on historical reasons, which are of course
wholly lacking (see Fairman, Does the Fourteenth Amendment Incorporate the
Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949)), but
on the thesis that by limiting the content of the Due Process Clause of
the Fourteenth Amendment to the protection of rights which can be found
elsewhere in the Constitution, in this instance in the Bill of Rights, Judges
will thus be confined to "interpretation" of specific constitutional 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 recognition 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.*
|||JUSTICE WHITE, Concurring in the judgment.
|||In my view this Connecticut law as applied to married couples deprives
them of "liberty" without due process of law, as that concept is used in
the Fourteenth Amendment. I therefore concur in the judgment of the Court
reversing these convictions under Connecticut's aiding and abetting statute.
|||It would be unduly repetitious, and belaboring the obvious, to expound
on the impact of this statute on the liberty guaranteed by the Fourteenth
Amendment against arbitrary or capricious denials or on the nature of this
liberty. Suffice it to say that this is not the first time this Court has
had occasion to articulate that the liberty entitled to protection under
the Fourteenth Amendment includes the right "to marry, establish a home
and bring up children," Meyer v. 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 the marriage relationship, "come 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 anti-use statute, together with the general
aiding and abetting statute, prohibits doctors from affording advice to
married persons on proper and effective methods of birth control. Tileston
v. Ullman, 129 Conn. 84, 26 A. 2d 582. And the clear effect of these statutes,
as enforced, is to deny disadvantaged citizens of Connecticut, those without
either adequate knowledge or resources to obtain private counseling, access
to medical assistance and up-to-date information in respect to proper methods
of birth control. State v. Nelson, 126 Conn. 412, 11 A. 2d 856; State v.
Griswold, 151 Conn. 544, 200 A. 2d 479. In my view, a statute with these
effects bears a substantial burden of justification when attacked under
the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356; 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 anti-use 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 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.*
|||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. Board of 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 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.S. 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 non-enforcement
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 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.
|||JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, Dissenting.
|||I agree with my Brother STEWART'S Dissenting opinion. And like him I do
not to any extent whatever base my view that this Connecticut law is constitutional
on a belief that the law is wise or that its policy is a good one. In order
that there may be no room at all to doubt why I vote as I do, I feel constrained
to add that the law is every bit as offensive to me as it is to my Brethren
of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting
reasons why it is offensive to them, hold it unconstitutional. There is
no single one of the graphic and eloquent strictures and criticisms fired
at the policy of this Connecticut law either by the Court's opinion or by
those of my Concurring Brethren to which I cannot subscribe -- except their
Conclusion that the evil qualities they see in the law make it unconstitutional.
|||Had the doctor defendant here, or even the nondoctor defendant, been convicted
for doing nothing more than expressing opinions to persons coming to the
clinic that certain contraceptive devices, medicines or practices would
do them good and would be desirable, or for telling people how devices could
be used, I can think of no reasons at this time why their expressions of
views would not be 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 respect to certain activities. Such, for example, is the
Fourth Amendment's guarantee against "unreasonable searches and seizures."
But I think it belittles that Amendment to talk about it as though it protects
nothing but "privacy." To treat it that way is to give it a niggardly interpretation,
not the kind of liberal reading I think any Bill of Rights provision should
be given. The average man would very likely not have his feelings soothed
any more by having his property seized openly than by having it seized privately
and by stealth. He simply wants his property left alone. And a person can
be just as much, if not more, irritated, annoyed and injured by an unceremonious
public arrest by a policeman as he is by a seizure in the privacy of his
office or home.
|||One of the most effective ways of diluting or expanding a constitutionally
guaranteed right is to substitute for the crucial word or words of a constitutional
guarantee another word or words, more or less flexible and more or less
restricted in meaning. This fact is well illustrated by the use of the term
"right of privacy" as a comprehensive substitute for the Fourth Amendment's
guarantee against "unreasonable searches and seizures." "Privacy" is a broad,
abstract and ambiguous concept which can easily be shrunken in meaning but
which can also, on the other hand, easily be interpreted as a constitutional
ban against many things other than searches and seizures. I have expressed
the view many times that First Amendment freedoms, for example, have suffered
from a failure of the courts to stick to the simple language of the First
Amendment in construing it, instead of invoking multitudes of words substituted
for those the Framers used. See, e. g., New York Times Co. v. Sullivan,
376 U.S. 254, 293 (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
one or more constitutional provisions. *fn1
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
|||This brings me to the arguments made by my Brothers HARLAN, WHITE and
GOLDBERG for invalidating the Connecticut law. Brothers HARLAN *fn2
and WHITE would invalidate it by reliance on the Due Process Clause of the
Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother
HARLAN, relies also on the Ninth Amendment. I have no doubt that the Connecticut
law could be applied in such a way as to abridge freedom of 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." *fn3
If these formulas based on "natural Justice," or others which mean the same
thing, *fn4 are to prevail, they
require Judges to determine 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 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."
*fn5 Such an appraisal of the wisdom
of legislation is an attribute of the power to make laws, not of the power
to interpret them. The use by federal courts of such a formula or doctrine
or whatnot to veto federal or state laws simply takes away from Congress
and States the power to make laws based on their own judgment of fairness
and wisdom and transfers that power to this Court for ultimate determination
-- a power which was specifically denied to federal courts by the convention
that framed the Constitution. *fn6
|||Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily,
undoubtedly the reasoning of two of them supports their result here -- as
would that of a number of others which they do not bother to name, e. g.,
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 philosophy found in Lochner v. New York, supra, one of the cases
on which he relied in Meyer, along with such other long-discredited decisions
as, e. g., Adams v. Tanner, 244 U.S. 590, 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 state law forbidding the teaching of modern foreign languages
to young children in the schools. *fn7
And in Pierce, relying principally on Meyer, Mr. Justice McReynolds said
that a state law requiring that all children attend public schools interfered
unconstitutionally with the property rights of private school corporations
because it was an "arbitrary, unreasonable and unlawful interference" which
threatened "destruction of their business and property." 268 U.S., at 536.
Without expressing an opinion as to whether either of those cases reached
a correct result in light of our later decisions applying the First Amendment
to the States through the Fourteenth, *fn8
I merely point out that the reasoning stated in Meyer and Pierce was the
same natural law due process philosophy which many later opinions repudiated,
and which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases,
such as NAACP v. Button, 371 U.S. 415, 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. *fn9
See Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State
Bar, 377 U.S. 1, 7-8. *fn10 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 very least,
I suppose, that every state criminal statute -- since it must inevitably
curtail "liberty" to some extent -- would be suspect, and would have to
be justified to this Court. *fn11
|||My Brother GOLDBERG has adopted the recent discovery *fn12
that the Ninth Amendment as well as the Due Process Clause can be used by
this Court as authority to strike down all state legislation which this
Court thinks violates "fundamental principles of liberty and Justice," or
is contrary to the "traditions and conscience of our people." He also states,
without proof satisfactory to me, that in making decisions on this basis
Judges will not consider "their personal and private notions." One may ask
how they can avoid considering them. Our Court certainly has no machinery
with which to take a Gallup Poll. *fn13
And 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 " conscience
of our people." Moreover, one would certainly have to look far beyond the
language of the Ninth Amendment *fn14
to find that the Framers vested in this Court any such awesome veto powers
over lawmaking, either by the States or by the Congress. Nor does anything
in the history of the Amendment offer any support for such a shocking doctrine.
The whole history of the adoption of the Constitution and Bill of Rights
points the other way, and the very material quoted by my Brother GOLDBERG
shows that the Ninth Amendment was intended to protect against the idea
that "by enumerating particular exceptions to the grant of power" to the
Federal Government, "those rights which were not singled out, were intended
to be assigned into the hands of the General Government [the United States],
and were consequently insecure." *fn15
That Amendment was passed, not to broaden the powers of this Court or any
other department of "the General Government," but, as every student of history
knows, to assure the people that the Constitution in all its provisions
was intended to limit the Federal Government to the powers granted expressly
or by necessary implication. If any broad, unlimited power to hold laws
unconstitutional because they offend what this Court conceives to be the
" 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 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.
|||I realize that many good and able men have eloquently spoken and written,
sometimes in rhapsodical strains, about the duty of this Court to keep the
Constitution in tune with the times. The idea is that the Constitution must
be changed from time to time and that this Court is charged with a duty
to make those changes. For myself, I must with all deference reject that
philosophy. The Constitution makers knew the need for change and provided
for it. Amendments suggested by the people's elected representatives can
be submitted to the people or their selected agents for ratification. That
method of change was good for our Fathers, and being somewhat 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 and uncertain natural law
concept as a reason for striking down this state law. The Due Process Clause
with an "arbitrary and capricious" or "shocking to the conscience" formula
was liberally used by this Court to strike down economic legislation in
the early decades of this century, threatening, many people thought, the
tranquility and stability of the Nation. See, e. g., Lochner v. 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. 236, and many other opinions. *fn17
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 *fn18
|||"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.
*fn19 Gold 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. *fn20
|||In 1798, when this Court was asked to hold another Connecticut law unconstitutional,
Justice Iredell said:
|||"It 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 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 opinion):
|||"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 limitless 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."
*fn21 (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," *fn22
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 knew how to choose them, which I assuredly do not."
|||So far as I am concerned, Connecticut's law as applied here is not forbidden
by any provision of the Federal Constitution as that Constitution was written,
and I would therefore affirm.
|||JUSTICE STEWART, whom MR. JUSTICE BLACK joins, Dissenting.
|||Since 1879 Connecticut has had on its books a law which forbids the use
of contraceptives by anyone. I think this is an uncommonly silly law. As
a practical matter, the law is obviously unenforceable, except in the oblique
context of the present case. As a philosophical matter, I believe the use
of contraceptives in the relationship of marriage should be left to personal
and private choice, based upon each individual's moral, ethical, and religious
beliefs. As a matter of social policy, I think professional counsel about
methods of birth control should be available to all, so that each individual's
choice can be meaningfully made. But we are not asked in this case to say
whether we think this law is unwise, or even asinine. We are asked to hold
that it violates the United States Constitution. And that I cannot do.
|||In the course of its opinion the Court refers to no less than six Amendments
to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth,
and the Fourteenth. But the Court does not say which of these Amendments,
if any, it thinks is infringed by this Connecticut law.
|||We are told that the Due Process Clause of the Fourteenth Amendment is
not, as such, the "guide" in this case. With that much I agree. There is
no claim that this law, duly enacted by the Connecticut Legislature, is
unconstitutionally vague. There is no claim that the appellants were denied
any of the elements of procedural due process at their trial, so as to make
their convictions constitutionally invalid. And, as the Court says, the
day has long passed since the Due Process Clause was regarded as a proper
instrument for determining "the wisdom, need, and propriety" of state laws.
Compare Lochner v. New York, 198 U.S. 45, with Ferguson v. Skrupa, 372 U.S.
726. My Brothers HARLAN and WHITE to the contrary, "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." Ferguson v. Skrupa, supra, at 730.
|||As to the First, Third, Fourth, and Fifth Amendments, I can find nothing
in any of them to invalidate this Connecticut law, even assuming that all
those Amendments are fully applicable against the States.1 It has not even
been argued that this is a law "respecting an establishment of religion,
or prohibiting the free exercise thereof."2 And surely, unless the solemn
process of constitutional adjudication is to descend to the level of a play
on words, there is not involved here any abridgment of "the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances."3 No soldier has been
quartered in any house.4 There has been no search, and no seizure.5 Nobody
has been compelled to be a witness against himself.6
|||The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's Concurring
opinion relies heavily upon it. But to say that the Ninth Amendment has
anything to do with this case is to turn somersaults with history. The Ninth
Amendment, like its companion the Tenth, which this Court held "states but
a truism that all is retained which has not been surrendered," United States
v. Darby, 312 U.S. 100, 124, was framed by James Madison and adopted by
the States simply to make clear that the adoption of the Bill of Rights
did not alter the plan that the Federal Government was to be a government
of express and limited powers, and that all rights and powers not delegated
to it were retained by the people and the individual States. Until today
no member of this Court has ever suggested that the Ninth Amendment meant
anything else, and the idea that a federal court could ever use the Ninth
Amendment to annul a law passed by the elected representatives of the people
of the State of Connecticut would have caused James Madison no little wonder.
|||What provision of the Constitution, then, does make this state law invalid?
The Court says it is the right of privacy "created by several fundamental
constitutional guarantees." With all deference, I can find no such general
right of privacy in the Bill of Rights, in any other part of the Constitution,
or in any case ever before decided by this Court.7
|||At the oral argument in this case we were told that the Connecticut law
does not "conform to current community standards." But it is not the function
of this Court to decide cases on the basis of community standards. We are
here to decide cases "agreeably to the Constitution and laws of the United
States." It is the essence of judicial duty to subordinate our own personal
views, our own ideas of what legislation is wise and what is not. If, as
I should surely hope, the law before us does not reflect the standards of
the people of Connecticut, the people of Connecticut can freely exercise
their true Ninth and Tenth Amendment rights to persuade their elected representatives
to repeal it. That is the constitutional way to take this law off the books.8
|||* 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 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.
|||*fn1 My Brother STEWART Dissents
on the ground that he "can find no . . . general right of privacy in the
Bill of Rights, in any other part of the Constitution, or in any case ever
before decided by this Court." Post, at 530. He would require a more explicit
guarantee than the one which the Court derives from several constitutional
amendments. This Court, however, has never held that the Bill of Rights
or the Fourteenth Amendment protects only those rights that the Constitution
specifically mentions by name. See, e. g., Bolling v. Sharpe, 347 U.S. 497;
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.
|||*fn2 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.
|||*fn3 Madison himself had previously
pointed out the dangers of inaccuracy resulting from the fact that "no language
is so copious as to supply words and phrases for every complex idea." The
Federalist, No. 37 (Cooke ed. 1961), at 236.
|||*fn4 Alexander Hamilton was opposed
to a bill of rights on the ground that it was unnecessary because the Federal
Government was a government of delegated powers and it was not granted the
power to intrude upon fundamental personal rights. The Federalist, No. 84
(Cooke ed. 1961), at 578-579. He also argued,
|||"I go further, and affirm that bills of rights, in the sense and in the
extent in which they are contended for, are not only unnecessary in the
proposed constitution, but would even be dangerous. They would contain various
exceptions to powers which are not granted; and on this very account, would
afford a colourable pretext to claim more than were granted. For why declare
that things shall not be done which there is no power to do? Why for instance,
should it be said, that the liberty of the press shall not be restrained,
when no power is given by which restrictions may be imposed? I will not
contend that such a provision would confer a regulating power; but it is
evident that it would furnish, to men disposed to usurp, a plausible pretence
for claiming that power." Id., at 579.
|||The Ninth Amendment and the Tenth Amendment, which provides, "The powers
not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people,"
were apparently also designed in part to meet the above-quoted argument
|||*fn5 The Tenth Amendment similarly
made clear that the States and the people retained all those powers not
expressly delegated to the Federal Government.
|||*fn6 This Amendment has been
referred to as "The Forgotten Ninth Amendment," in a book with that title
by Bennett B. Patterson (1955). Other commentary on the Ninth Amendment
includes Redlich, Are There "Certain Rights . . . Retained by the People"?
37 N. Y. U. L. Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal
Constitution, 11 Ind. L. J. 309 (1936). As far as I am aware, until today
this Court has referred to the Ninth Amendment only in United Public Workers
v. Mitchell, 330 U.S. 75, 94-95; 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 Dall. 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 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."
|||*fn7 In light of the tests enunciated
in these cases it cannot be said that a Judge's responsibility to determine
whether a right is basic and fundamental in this sense vests him with unrestricted
personal discretion. In fact, a hesitancy to allow too broad a discretion
was a substantial reason leading me to conclude in Pointer v. Texas, supra,
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 discretionary determination as to whether a practice,
forbidden the Federal Government by a fundamental constitutional guarantee,
is, as viewed in the factual circumstances surrounding each individual case,
sufficiently repugnant to the notion of due process as to be forbidden the
States." Id., at 413.
|||*fn8 Pointer v. Texas, supra,
at 413. See also the Discussion of my Brother DOUGLAS, Poe v. Ullman, supra,
at 517-518 (dissenting opinion).
|||* 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.
|||* 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. Updegraff, 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 capacity to practice law. Douglas v. Noble, 261 U.S. 165; Cummings 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).
|||1 The phrase "right to privacy" appears first to have gained currency
from an article written by Messrs. Warren and (later Mr. Justice) Brandeis
in 1890 which urged that States should give some form of tort relief to
persons whose private affairs were exploited by others. The Right to Privacy,
4 Harv. L. Rev. 193. Largely as a result of this article, some States have
passed statutes creating such a cause of action, and in others state courts
have done the same thing by exercising their powers as courts of common
law. See generally 41 Am. Jur. 926-927. Thus the Supreme Court of Georgia,
in granting a cause of action for damages to a man whose picture had been
used in a newspaper advertisement without his consent, said that "A right
of privacy in matters purely private is . . . derived from natural law"
and that "The Conclusion reached by us seems to be . . . thoroughly in accord
with natural Justice, with the principles of the law of every civilized
nation, and especially with the elastic principles of the common law . .
. ." Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 218, 50 S.
E. 68, 70, 80. 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.
|||3 Indeed, Brother WHITE appears to have gone beyond past pronouncements
of the natural law due process theory, which at least said that the Court
should exercise this unlimited power to declare 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
when 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 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, supra, 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, 316 U.S. 455, 462 ("denial of fundamental fairness, shocking
to the universal sense of Justice"); Poe v. Ullman, 367 U.S. 497, 539 (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.
|||5 See Hand, The Bill of Rights (1958) 70:
|||"Judges are seldom content merely to annul the particular solution before
them; they do not, indeed they may not, say that taking all things into
consideration, the legislators' solution is too strong for the judicial
stomach. On the contrary they wrap up their veto in a protective veil of
adjectives such as 'arbitrary,' 'artificial,' 'normal,' 'reasonable,' 'inherent,'
'fundamental,' or 'essential,' whose office usually, though quite innocently,
is to disguise what they are doing and impute to it a derivation far more
impressive than their personal preferences, which are all that in fact lie
behind the decision." See also Rochin v. California, 342 U.S. 165, 174 (concurring
opinion). 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 the constitutional
power of Congress or violate some specific prohibition of the Constitution.
See 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 [original wording illegible] of the members of each branch." 1 The Records
of the Federal Convention of 1787 (Farrand ed. 1911) 21.
|||In support of a plan of this kind James Wilson of Pennsylvania argued
|||". . . It had been said that the Judges, as expositors of the Laws would
have an opportunity of defending their constitutional rights. There was
weight in this observation; but this power of the Judges did not go far
enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive;
and yet not be so unconstitutional as to justify the Judges in refusing
to give them effect. Let them have a share in the Revisionary power, and
they will have an opportunity of taking notice of these characters of a
law, and of counteracting, by the weight of their opinions the improper
views of the Legislature." 2 id., at 73.
|||Nathaniel Gorham of Massachusetts "did not see the advantage of employing
the Judges in this way. As Judges they are not to be presumed to possess
any peculiar knowledge of the mere policy of public measures." Ibid.
|||Elbridge Gerry of Massachusetts likewise opposed the proposal for a council
|||". . . He relied for his part on the Representatives of the people as
the guardians of their Rights & interests. It [the proposal] was making
the Expositors of the Laws, the Legislators which ought never to be done."
Id., at 75.
|||And at another point:
|||"Mr. Gerry doubts whether the Judiciary ought to form a part of it [the
proposed council of revision], as they will have a sufficient check agst.
encroachments on their own department by their exposition of the laws, which
involved a power of deciding on their Constitutionality. . . . It was quite
foreign from the nature of ye. office to make them Judges of the policy
of public measures." 1 Id., at 97-98.
|||Madison supported the proposal on the ground that "a Check [on the legislature]
is necessary." Id., at 108. John Dickinson of Delaware opposed it on the
ground that "the Judges must interpret the Laws they ought not to be legislators."
Ibid. The proposal for a council of revision was defeated.
|||The following proposal was also advanced:
|||"To assist the President in conducting the Public affairs there shall
be a Council of State composed of the following officers -- 1. The Chief
Justice of the Supreme Court, who shall from time to time recommend such
alterations of and additions to the laws of the U.S. as may in his opinion
be necessary to the due administration of Justice, and such as may promote
useful learning and inculcate sound morality throughout the Union . . .
." 2 id., at 342. This proposal too was rejected.
|||7 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.
|||8 Compare Poe v. Ullman, 367 U.S., at 543-544 (HARLAN, J., Dissenting).
|||*fn9 The Court has also said
that in view of the Fourteenth Amendment's major purpose of eliminating
state-enforced racial discrimination, this Court will scrutinize carefully
any law embodying a racial classification to make sure that it does not
deny equal protection of the laws. See McLaughlin v. Florida, 379 U.S. 184.
|||*fn10 None of the other cases
decided in the past 25 years which Brothers WHITE and GOLDBERG cite can
justly be read as holding that Judges have power to use a natural law due
process formula to strike down all state laws which they think are unwise,
dangerous, or irrational. Prince v. 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 modern cases relied on by my Brethren were decided either solely
under the Equal Protection Clause of the Fourteenth Amendment or under the
First Amendment, made applicable to the States by the Fourteenth, some of
the latter group involving the right of association which this Court has
held to be a part of the rights of speech, press and assembly guaranteed
by the First Amendment. As for Aptheker v. Secretary of State, 378 U.S.
500, 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
|||*fn11 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."
|||*fn12 See Patterson, The Forgotten
Ninth Amendment (1955). Mr. Patterson urges that the Ninth Amendment be
used to protect unspecified "natural and inalienable rights." P. 4. The
Introduction by Roscoe Pound states that "there is a marked revival of natural
law ideas throughout the world. Interest in the Ninth Amendment is a symptom
of that revival." P. iii.
|||In Redlich, Are There "Certain Rights . . . Retained by the People"?,
37 N. Y. U. L. Rev. 787, Professor Redlich, in advocating reliance on the
Ninth and Tenth Amendments to invalidate the Connecticut law before us,
|||"But for one who feels that the marriage relationship should be beyond
the reach of a state law forbidding the use of contraceptives, the birth
control case poses a troublesome and challenging problem of constitutional
interpretation. He may find himself saying, 'The law is unconstitutional
-- but why?' There are two possible paths to travel in finding the answer.
One is to revert to a frankly flexible due process concept even on matters
that do not involve specific constitutional prohibitions. The other is to
attempt to evolve a new constitutional framework within which to meet this
and similar problems which are likely to arise." Id., at 798.
|||*fn13 Of course one cannot
be oblivious to the fact that Mr. Gallup has already published the results
of a poll which he says show that 46% of the people in this country believe
schools should teach about birth control. Washington Post, May 21, 1965,
p. 2, col. 1. I can hardly believe, however, that Brother GOLDBERG would
view 46% of the persons polled as so overwhelming a proportion that this
Court may now rely on it to declare that the Connecticut law infringes "fundamental"
rights, and overrule the long-standing view of the people of Connecticut
expressed through their elected representatives.
|||*fn14 U.S. Const., Amend. IX,
|||"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
|||*fn15 1 Annals of Congress
439. See also II Story, Commentaries on the Constitution of the United States
(5th ed. 1891): "This clause was manifestly introduced to prevent any perverse
or ingenious misapplication of the well-known maxim, that an affirmation
in particular cases implies a negation in all others; and, e converso, that
a negation in particular cases implies an affirmation in all others. The
maxim, rightly understood, is perfectly sound and safe; but it has often
been strangely forced from its natural meaning into the support of the most
dangerous political heresies." Id., at 651 (footnote omitted).
|||*fn16 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.
|||"I have not yet adequately expressed the more than anxiety that I feel
at the ever increasing scope given to the Fourteenth Amendment in cutting
down what I believe to be the constitutional rights of the States. As the
decisions now stand, I see hardly 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 Constitution in
limiting the power of the States, and should be slow to construe the clause
in the Fourteenth Amendment as committing to the Court, with no guide but
the Court's own discretion, the validity of whatever laws the States may
pass." 281 U.S., at 595. See 2 Holmes-Pollock Letters (Howe ed. 1941) 267-268.
|||*fn17 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.
|||*fn18 Brother HARLAN, who has
consistently stated his belief in the power of courts to strike down laws
which they consider arbitrary or unreasonable, see, e. g., Poe v. Ullman,
367 U.S. 497, 539-555 (dissenting opinion), did not join the Court's opinion
in Ferguson v. Skrupa.
|||*fn19 Justice Holmes, Dissenting
in Tyson, said:
|||"I think the proper course is to recognize that a state legislature can
do whatever it sees fit to do unless it is restrained by some express prohibition
in the Constitution of the United States or of the State, and that Courts
should be careful not to extend such prohibitions beyond their obvious meaning
by reading into them conceptions of public policy that the particular Court
may happen to entertain." 273 U.S., at 446.
|||*fn20 Compare 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, "I believe that faithful adherence to the specific guarantees in the
Bill of Rights insures a more permanent protection of individual liberty
than that which can be afforded by the nebulous standards" urged by my Concurring
|||*fn21 Gideon v. Wainwright,
372 U.S. 335, and similar cases applying specific Bill of Rights provisions
to the States do not in my view stand for the proposition that this Court
can rely on its own concept of "ordered liberty" or "shocking the conscience"
or natural law to decide what laws it will permit state legislatures to
enact. Gideon in applying to state prosecutions the Sixth Amendment's guarantee
of right to counsel followed Palko v. Connecticut, 302 U.S. 319, which had
held that specific provisions of the Bill of Rights, rather than the Bill
of Rights as a whole, would be selectively applied to the States. While
expressing my own belief (not shared by MR. JUSTICE STEWART) that all the
provisions of the Bill of Rights were made applicable to the States by the
Fourteenth Amendment, in my Dissent in Adamson v. California, 332 U.S. 46,
89, I also said:
|||"If the choice must be between the selective process of the Palko decision
applying some of the Bill of Rights to the States, or the Twining rule applying
none of them, I would choose the Palko selective process."
|||Gideon and similar cases merely followed the Palko rule, which in Adamson
I agreed to follow if necessary to make Bill of Rights safeguards applicable
to the States. See also Pointer v. Texas, 380 U.S. 400; Malloy v. Hogan,
378 U.S. 1.
|||*fn22 Hand, The Bill of Rights
(1958) 70. See note 5, (supra) . See generally id., at 35-45.
|||*fn23 Id., at 73. While Judge
Hand condemned as unjustified the invalidation of state laws under the natural
law due process formula, see id., at 35-45, he also expressed the view that
this Court in a number of cases had gone too far in holding legislation
to be in violation of specific guarantees of the Bill of Rights. Although
I agree with his criticism of use of the due process formula, I do not agree
with all the views he expressed about construing the specific guarantees
of the Bill of Rights.
|||1 The Amendments in question were, as everyone knows, originally adopted
as limitations upon the power of the newly created Federal Government, not
as limitations upon the powers of the individual States. But the Court has
held that many of the provisions of the first eight amendments are fully
embraced by the Fourteenth Amendment as limitations upon state action, and
some members of the Court have held the view that the adoption of the Fourteenth
Amendment made every provision of the first eight amendments fully applicable
against the States. See Adamson v. California, 332 U.S. 46, 68 (dissenting
opinion of MR. JUSTICE BLACK).
|||2 U.S. Constitution, Amendment I. To be sure, the injunction contained
in the Connecticut statute coincides with the doctrine of certain religious
faiths. But if that were enough to invalidate a law under the provisions
of the First Amendment relating to religion, then most s would be invalidated.
See, e. g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James).
|||3 U.S. Constitution, Amendment I. If all the appellants had done was to
advise people that they thought the use of contraceptives was desirable,
or even to counsel their use, the appellants would, of course, have a substantial
First Amendment claim. But their activities went far beyond mere advocacy.
They prescribed specific contraceptive devices and furnished patients with
the prescribed contraceptive materials.
|||4 U.S. Constitution, Amendment III.
|||5 U.S. Constitution, Amendment IV.
|||6 U.S. Constitution, Amendment V.
|||7 Cases like Shelton v. Tucker, 364 U.S. 479 and Bates v. Little Rock,
361 U.S. 516, relied upon in the Concurring opinions today, dealt with true
First Amendment rights of association and are wholly inapposite here. See
also, e. g., NAACP v. Alabama, 357 U.S. 449; Edwards v. South Carolina,
372 U.S. 229. Our decision in McLaughlin v. Florida, 379 U.S. 184, is equally
far afield. That case held invalid under the Equal Protection Clause, a
state which discriminated against Negroes.
|||The Court does not say how far the new constitutional right of privacy
announced today extends. See, e. g., Mueller, Legal Regulation of Sexual
Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however,
that even after today a State can constitutionally still punish at least
some offenses which are not committed in public.
|||8 See Reynolds v. Sims, 377 U.S. 533, 562. The Connecticut House of Representatives
recently passed a bill (House Bill No. 2462) repealing the birth control
law. The State Senate has apparently not yet acted on the measure, and today
is relieved of that responsibility by the Court. New Haven Journal-Courier,
Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7.
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