GRISWOLD ET AL.
v.
381
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
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
"Any person
who uses any drug, medicinal article or instrument for the purpose of
preventing conception shall be fined not less than fifty dollars or imprisoned
not less than sixty days nor more than one year or be both fined and
imprisoned."
Section 54-196
provides:
"Any person
who assists, abets, counsels, causes, hires or commands another to commit any
offense may be prosecuted and punished as if he were the principal
offender."
The appellants were
found guilty as accessories and fined $ 100 each, against the claim that the
accessory statute as so applied violated the Fourteenth Amendment. The
Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that
judgment. 151
[*481]
[***HR1] [***HR2]
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
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.
[***HR3] Coming to the merits, we are met with a wide
range of questions that implicate the Due Process Clause of the Fourteenth
Amendment. Overtones of some arguments
[*482] suggest that Lochner v.
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.
[***HR4] [***HR5]
[***HR6] 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.
[***HR7]
In NAACP v.
[***HR8] [***HR9]
Those cases involved more than the "right of assembly" -- a
right that extends to all irrespective of their race or ideology. De Jonge v.
[*484]
[***HR10] 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
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 [**1682]
recently referred [*485] 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).
* 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
We have had many
controversies over these penumbral rights of "privacy and repose."
See, e. g., Breard v.
[***HR11] [***HR12]
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 [***516] 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.
We deal with a
right of privacy older than the Bill of Rights -- older than our political
parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Reversed.
CONCURBY:
GOLDBERG; HARLAN;
WHITE
CONCUR:
MR. JUSTICE
GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.
I agree with the
Court that
n1 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
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.
"For present
purposes we may and do assume that freedom of speech and of the press -- which
are protected by the First Amendment from abridgment by Congress -- are among
the fundamental personal rights and 'liberties' protected by the due
process clause of the Fourteenth Amendment from impairment by the States."
(Emphasis added.)
[*488] And, in Meyer v. 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 [**1684] rights. n2 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.
n2 See, e. g.,
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226; Gitlow v. New York, supra; Cantwell v. Connecticut,
310 U.S. 296; Wolf v. Colorado, 338 U.S. 25; Robinson v. California,
370 U.S. 660; Gideon v. Wainwright, 372 U.S. 335; Malloy
v. Hogan, 378 U.S. 1; Pointer v. Texas, supra; Griffin v. California,
380 U.S. 609.
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 n3 could not be
sufficiently broad to cover all essential
[*489] rights and that the
specific mention of certain rights
[***518] would be interpreted as
a denial that others were protected. n4
n3 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.
n4 Alexander
Hamilton was opposed to a bill of rights on the ground that it was unnecessary
because the Federal Government was a government of delegated powers and it was
not granted the power to intrude upon fundamental personal rights. The
Federalist, No. 84 (Cooke ed. 1961), at 578-579. He also argued,
"I go further,
and affirm that bills of rights, in the sense and in the extent in which they
are contended for, are not only unnecessary in the proposed constitution, but
would even be dangerous. They would
contain various exceptions to powers which are not granted; and on this very
account, would afford a colourable pretext to claim
more than were granted. For why declare
that things shall not be done which there is no power to do? Why for instance, should it be said, that the
liberty of the press shall not be restrained, when no power is given by which
restrictions may be imposed? I will not
contend that such a provision would confer a regulating power; but it is
evident that it would furnish, to men disposed to usurp, a plausible pretence
for claiming that power." Id., at 579.
The Ninth Amendment and the Tenth
Amendment, which provides, "The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people," were apparently also designed in
part to meet the above-quoted argument of Hamilton.
In presenting the
proposed Amendment, Madison said:
"It has been
objected also against a bill of rights, that, by enumerating particular
exceptions to the grant of power, it would disparage those rights which were
not placed in that enumeration; and it might follow by implication, that those
rights which were not singled out, were intended to be assigned into the hands
of the General Government, and were consequently insecure. This is one of the most plausible arguments I
have ever heard urged against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by
turning to the [*490] last clause of the fourth resolution [the
Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834).
[**1685] Mr. Justice Story wrote of this argument
against a bill of rights and the meaning of the Ninth Amendment:
"In regard to
. . . [a] suggestion, that the affirmance of certain
rights might disparage others, or might lead to argumentative implications in
favor of other powers, it might be sufficient to say that such a course of
reasoning could never be sustained upon any solid basis . . . . But
a conclusive answer is, that such an attempt may be interdicted (as it has
been) by a positive declaration in such a bill of rights that the enumeration
of certain rights shall not be construed to deny or disparage others retained
by the people." II Story, Commentaries on the Constitution of the United
States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth Amendment:
"This clause was manifestly introduced to prevent
any perverse or ingenious misapplication of the 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. n5
n5 The Tenth
Amendment similarly made clear that the States and the people retained all
those powers not expressly delegated to the Federal Government.
While [***519]
this Court has had little occasion to interpret the Ninth Amendment, n6
"it cannot be presumed that any
[*491] 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 [**1686]
it is not mentioned in explicit terms by one of the first eight
amendments or elsewhere in the Constitution would violate the Ninth Amendment,
which specifically states that
[*492] "the enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." (Emphasis added.)
n6 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 [is] involved. The right claimed as inviolate may be stated
as the right of a citizen to act as a party official or worker to further his
own political views. Thus we have a
measure of interference by the Hatch Act and the Rules with what otherwise
would be the freedom of the civil servant under the First, Ninth and Tenth
Amendments. And, if we look upon due
process as a guarantee of freedom in those fields, there is a corresponding
impairment of that right under the Fifth Amendment."
A dissenting
opinion suggests that my interpretation of the Ninth Amendment somehow
"broaden[s] the powers of this Court." Post, at 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 [***520] 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 [*493]
of the Court; rather it serves to support what this Court has been doing
in protecting fundamental rights.
Nor am I turning
somersaults with history in arguing that the Ninth Amendment is relevant in a
case dealing with a State's infringement of a fundamental right. While the Ninth Amendment -- and indeed the
entire Bill of Rights -- originally concerned restrictions upon federal
power, the subsequently enacted Fourteenth Amendment prohibits the States as
well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that
not all such liberties are specifically mentioned in the first eight
amendments, is surely relevant in showing the existence of other fundamental
personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends
strong support to the view that the "liberty" protected by the Fifth
and Fourteenth Amendments from infringement by the Federal Government or the
States is not restricted to rights specifically mentioned in the first eight
amendments. Cf. United Public Workers v. Mitchell,
330 U.S. 75, 94-95.
In determining
which rights are fundamental, judges are not left at large to decide cases in
light of their personal and private notions.
Rather, they must look to the "traditions and [collective]
conscience of our people" to determine whether a principle is "so
rooted [there] . . . as to be ranked as fundamental." Snyder v. Massachusetts,
291 U.S. 97, 105. The inquiry is whether a right involved "is of such a
character that it cannot be denied without violating those 'fundamental
principles of liberty and justice
[**1687] which lie at the base of
all our civil and political institutions' . . . ." Powell v. Alabama,
287 U.S. 45, 67. "Liberty" also "gains content from the
emanations of . . . specific [constitutional] guarantees" and "from
experience with the requirements of a free society." Poe [*494]
v. Ullman, 367 U.S. 497, 517
(dissenting opinion of MR. JUSTICE DOUGLAS). n7
n7 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.
I [***521]
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."
[*495]
The Connecticut statutes here involved deal with a particularly
important and sensitive area of privacy --
that of the marital relation and the marital home. This Court recognized in Meyer v. Nebraska,
supra, that the right "to marry, establish a home and bring up
children" was an essential part of the liberty guaranteed by the
Fourteenth Amendment. 262 U.S., at 399. 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 [**1688] Constitutional right. . . . Of this whole 'private realm of family life'
it is difficult to imagine what is more private or more intimate than a husband
and wife's marital relations."
[***522]
The entire fabric of the Constitution and the purposes that clearly
underlie its specific guarantees demonstrate that the rights to marital privacy
and to marry and raise a family are of similar order and magnitude as the
fundamental rights specifically protected.
Although the
Constitution does not speak in so many words of the right of privacy in
marriage, I cannot believe that it offers these fundamental rights no
protection. The fact that no particular
provision of the Constitution
[*496] explicitly forbids the
State from disrupting the traditional relation of the family -- a relation as
old and as fundamental as our entire civilization -- surely does not show that
the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly
recognizes, there are fundamental personal rights such as this one, which are protected from
abridgment by the Government though not specifically mentioned in the
Constitution.
My Brother STEWART,
while characterizing the Connecticut birth control law as "an uncommonly
silly law," post, at 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 . . . ." n8 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.
n8 Pointer
v. Texas, supra, at 413. See also the discussion of my Brother DOUGLAS, Poe
v. Ullman, supra, at 517-518
(dissenting opinion).
The logic of the
dissents would sanction federal or state legislation that seems to me even more
plainly unconstitutional than the statute before us. Surely the Government, absent a showing of a
compelling subordinating state interest, could not decree that all husbands and
wives must be sterilized after two children have been born [*497]
to them. Yet by their reasoning
such an invasion of marital privacy would not be subject to constitutional
challenge because, while it might be "silly," no provision of the
Constitution specifically prevents the Government from curtailing the marital
right to bear children and raise a family.
While it may shock some of my Brethren that the Court today holds that
the Constitution protects the right of marital privacy, in my view it is far
more shocking to believe that the personal liberty guaranteed by the
Constitution does not include protection against such totalitarian limitation
of family size, which is at complete variance with our constitutional concepts. Yet, if upon a showing of a slender basis of
rationality, a law outlawing voluntary birth control by married persons is
valid, then, by the same reasoning, a law requiring compulsory birth control
also would seem to [***523] be valid.
In my view, however, both types of law would unjustifiably intrude upon
rights of marital privacy which are constitutionally protected.
In a long series of
cases this Court has held that where fundamental personal liberties are
involved, they may not be [**1689] abridged by the States simply on a showing
that a regulatory statute has some rational relationship to the effectuation of
a proper state purpose. "Where
there is a significant encroachment upon personal liberty, the State may prevail
only upon showing a subordinating interest which is compelling," Bates
v. Little Rock, 361 U.S. 516, 524. The law must be shown
"necessary, and not merely rationally related, to the accomplishment of a
permissible state policy." McLaughlin v. Florida, 379 U.S.
184, 196. See Schneider v. Irvington, 308 U.S. 147, 161.
Although the
Connecticut birth-control law obviously encroaches upon a fundamental personal
liberty, the State does not show that the law serves any "subordinating
[state] interest which is compelling" or that it is "necessary . . . [*498]
to the accomplishment of a
permissible state policy." The State, at most, argues that there is some
rational relation between this statute and what is admittedly a legitimate
subject of state concern -- the discouraging of extra-marital relations. It says that preventing the use of
birth-control devices by married persons helps prevent the indulgence by some
in such extra-marital relations. The
rationality of this justification is dubious, particularly in light of the
admitted widespread availability to all persons in the State of Connecticut,
unmarried as well as married, of birth-control devices for the prevention of
disease, as distinguished from the prevention of conception, see Tileston v. Ullman,
129 Conn. 84, 26 A. 2d 582. But, in any event, it is clear that the state
interest in safeguarding marital fidelity can be served by a more
discriminately tailored statute, which does not, like the present one, sweep
unnecessarily broadly, reaching far beyond the evil sought to be dealt with and
intruding upon the privacy of all married couples. See Aptheker
v. Secretary of State, 378 U.S. 500, 514; 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, at 196.
Finally, it should
be said of the Court's holding today that it in no way interferes with a
State's proper regulation [*499] of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his
dissenting opinion in Poe v. Ullman,
supra, at 553.
"Adultery,
homosexuality and the like are sexual intimacies which the [***524]
State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the
institution of marriage, an institution which the State not only must allow,
but which always and in every age it has fostered and protected. It is one thing when the State exerts its
power either to forbid extra-marital sexuality . . . or to say who may marry,
but it is quite another when, having acknowledged a marriage and the intimacies
inherent in it, it undertakes to regulate by means of the criminal law the
details of that intimacy."
[**1690]
In sum, I believe that the right of privacy in the marital relation is
fundamental and basic -- a personal right "retained by the people"
within the meaning of the Ninth Amendment. Connecticut cannot constitutionally
abridge this fundamental right, which is protected by the Fourteenth Amendment
from infringement by the States. I agree
with the Court that petitioners' convictions must therefore be reversed.
MR. JUSTICE HARLAN,
concurring in the judgment.
I fully agree with
the judgment of reversal, but find myself unable to join the Court's
opinion. The reason is that it seems to
me to evince an approach to this case very much like that taken by my Brothers
BLACK and STEWART in dissent, namely:
the Due Process Clause of the Fourteenth Amendment does not touch this
Connecticut statute unless the enactment is found to violate some right assured
by the letter or penumbra of the Bill of Rights.
[*500]
In other words, what I find implicit in the Court's opinion is that the
"incorporation" doctrine may be used to restrict the reach of
Fourteenth Amendment Due Process. For me
this is just as unacceptable constitutional doctrine as is the use of the
"incorporation" approach to impose upon the States all the
requirements of the Bill of Rights as found in the provisions of the first
eight amendments and in the decisions of this Court interpreting them. See, e. g., my concurring opinions in Pointer
v. 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 [***525] Due Process Clause of the Fourteenth
Amendment to the protection of rights which can be found elsewhere in the
Constitution, in this instance in the Bill of Rights, judges will thus be
confined to "interpretation" of specific constitutional [*501]
provisions, and will thereby be restrained from introducing their own
notions of constitutional right and wrong into the "vague contours of the
Due Process Clause." Rochin v. 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, [**1691] 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
[*502] will, however, go farther
toward keeping most judges from roaming at large in the constitutional field
than will the interpolation into the Constitution of an artificial and largely
illusory restriction on the content of the Due Process Clause. *
* 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.
MR. JUSTICE WHITE,
concurring in the judgment.
In my view this
Connecticut law as applied to married couples deprives them of
"liberty" without due process of law, as that concept is used in the
Fourteenth Amendment. I therefore concur in the judgment of the Court reversing
these convictions under Connecticut's aiding and abetting statute.
It would be unduly
repetitious, and belaboring the obvious, to expound on the impact of this
statute on the liberty guaranteed by the Fourteenth [***526]
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 [*503] the marriage relationship, "come[s] to
this Court with a momentum for respect lacking when appeal is made to liberties
which derive merely from shifting economic arrangements." Kovacs v.
Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).
The Connecticut
anti-contraceptive statute deals rather substantially with [**1692]
this relationship. For it forbids
all married persons the right to use birth-control devices, regardless of
whether their use is dictated by considerations of family planning, Trubek v. Ullman,
147 Conn. 633, 165 A. 2d 158, health, or indeed even of life itself. Buxton v. Ullman,
147 Conn. 48, 156 A. 2d 508. The anti-use statute, together with the general
aiding and abetting statute, prohibits doctors from affording advice to married
persons on proper and effective methods of birth control. Tileston
v. Ullman, 129 Conn. 84, 26 A. 2d 582. And the clear effect of these statutes, as
enforced, is to deny disadvantaged citizens of Connecticut, those without
either adequate knowledge or resources to obtain private counseling, access to
medical assistance and up-to-date information in respect to proper methods of
birth control. State v. Nelson, 126 Conn. 412, 11 A. 2d 856; State
v. Griswold, 151 Conn. 544, 200 A. 2d 479. In my view, a statute with
these effects bears a substantial burden of justification when attacked under
the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356; 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 [*504]
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.
[***527] "Where there is a
significant encroachment upon personal liberty, the State may prevail only upon
showing a subordinating interest which is compelling." Bates v. Little
Rock, 361 U.S. 516, 524. See also McLaughlin v. Florida, 379
U.S. 184. But such statutes, if reasonably necessary for the effectuation of a
legitimate and substantial state interest, and not arbitrary or capricious in
application, are not invalid under the Due Process Clause. Zemel v. Rusk,
381 U.S. 1. *
* Dissenting
opinions assert that the liberty guaranteed by the Due Process Clause is
limited to a guarantee against unduly vague statutes and against procedural
unfairness at trial. Under this view the
Court is without authority to ascertain whether a challenged statute, or its
application, has a permissible purpose and whether the manner of regulation
bears a rational or justifying relationship to this purpose. A long line of cases makes very clear that
this has not been the view of this Court.
Dent v. West Virginia, 129 U.S. 114; Jacobson v. Massachusetts,
197 U.S. 11; Douglas v. Noble, 261 U.S. 165; Meyer v. Nebraska,
262 U.S. 390; Pierce v. Society of Sisters, 268 U.S. 510; Schware v. Board of Bar Examiners, 353 U.S.
232; Aptheker v. Secretary of State,
378 U.S. 500; Zemel v. Rusk, 381 U.S.
1.
The traditional due
process test was well articulated, and applied, in Schware
v. Board of Bar Examiners, supra, a case which placed no reliance on the
specific guarantees of the Bill of Rights.
"A State
cannot exclude a person from the practice of law or from any other occupation
in a manner or for reasons that contravene the Due Process or Equal Protection
Clause of the Fourteenth Amendment. Dent v. West Virginia, 129
U.S. 114. Cf. Slochower
v. Board of Education, 350 U.S. 551; Wieman
v. 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).
[*505]
[**1693] 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 [***528] 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 [*506] been quite obviously ineffective and whose
most serious use has been against birth-control clinics rendering advice to
married, rather than unmarried, persons.
Cf. Yick
Wo v. Hopkins, 118 U.S. 356. 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 [**1694] will be no or less temptation to use them in
extramarital ones. This reasoning rests
on the premise that married people will comply with the ban in regard to their
marital relationship, notwithstanding total nonenforcement
in this context and apparent nonenforcibility, but
will not comply with criminal statutes prohibiting extramarital affairs and the
anti-use statute in respect to illicit sexual relationships, a premise whose
validity has not been [*507] demonstrated and whose intrinsic validity is
not very evident. At most the broad ban
is of marginal utility to the declared objective. A statute limiting its prohibition on use to
persons engaging in the prohibited relationship would serve the end posited by
Connecticut in the same way, and with the same effectiveness, or
ineffectiveness, as the broad anti-use statute under attack in this case. I find nothing in this record justifying the
sweeping scope of this statute, with its telling effect on the freedoms of
married persons, and therefore conclude that it deprives such persons of
liberty without due process of law.
DISSENTBY:
BLACK; STEWART
DISSENT:
[***529]
MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.
I agree with my
Brother STEWART'S dissenting opinion. And like him I do not to any extent
whatever base my view that this Connecticut law is constitutional on a belief
that the law is wise or that its policy is a good one. In order that there may be no room at all to
doubt why I vote as I do, I feel constrained to add that the law is every bit
as offensive to me as it is 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 [*508] protected by the First and Fourteenth
Amendments, which guarantee freedom of speech.
Cf. Brotherhood of Railroad
Trainmen v. Virginia ex rel. Virginia State
Bar, 377 U.S. 1; 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 [**1695]
so as to afford protection to the conduct of these defendants in
violating the Connecticut law. What
would be the constitutional fate of the law if hereafter applied to punish
nothing but speech is, as I have said, quite another matter.
The Court talks
about a constitutional "right of privacy" as though there is some
constitutional provision or provisions forbidding any law ever to be passed
which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain
specific constitutional provisions which are
[***530] designed in part to
protect privacy at certain times and places with respect to certain
activities. Such, for example, is the
Fourth [*509] Amendment's guarantee against
"unreasonable searches and seizures." But I think it belittles that
Amendment to talk about it as though it protects nothing but
"privacy." To treat it that way is to give it a niggardly
interpretation, not the kind of liberal reading I think any Bill of Rights
provision should be given. The average
man would very likely not have his feelings soothed any more by having his
property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not
more, irritated, annoyed and injured by an unceremonious public arrest by a
policeman as he is by a seizure in the privacy of his office or home.
One of the most
effective ways of diluting or expanding a constitutionally guaranteed right is
to substitute for the crucial word or words of a constitutional guarantee
another word or words, more or less flexible and more or less restricted in
meaning. This fact is well illustrated by
the use of the term "right of privacy" as a comprehensive substitute
for the Fourth Amendment's guarantee against "unreasonable searches and
seizures." "Privacy" is a broad, abstract and ambiguous concept
which can easily be shrunken in meaning but which can also, on the other hand,
easily be interpreted as a constitutional ban against many things other than
searches and seizures. I have expressed
the view many times that First Amendment freedoms, for example, have suffered
from a failure of the courts to stick to the simple language of the First
Amendment in construing it, instead of invoking multitudes of words substituted
for those the Framers used. See, e.
g., New York Times Co. v. Sullivan, 376 U.S. 254, 293 (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 [*510]
one or more constitutional provisions. n1 I like [**1696]
my privacy as well [***531] as the next one, but I am nevertheless
compelled to admit that government has a right to invade it unless prohibited
by some specific constitutional provision.
For these reasons I cannot agree with the Court's judgment and the
reasons it gives for holding this Connecticut law unconstitutional.
n1 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."
This brings me to
the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating
the Connecticut law. Brothers HARLAN n2
and WHITE would invalidate it by reliance on the Due Process Clause of the
Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN,
relies also on the Ninth Amendment. I have no doubt that the Connecticut law
could be applied in such a way as to abridge freedom of [*511]
speech and press and therefore violate the First and Fourteenth
Amendments. My disagreement with the
Court's opinion holding that there is such a violation here is a narrow one,
relating to the application of the First Amendment to the facts and
circumstances of this particular case.
But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more
basic. I think that if properly
construed neither the Due Process Clause nor the Ninth Amendment, nor both
together, could under any circumstances be a proper basis for invalidating the
Connecticut law. I discuss the due
process and Ninth Amendment arguments together because on analysis they turn
out to be the same thing -- merely using different words to claim for this
Court and the federal judiciary power to invalidate any legislative act which
the judges find irrational, unreasonable or offensive.
n2 Brother HARLAN'S
views are spelled out at greater length in his dissenting opinion in Poe
v. Ullman, 367 U.S. 497, 539-555.
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." n3 If these formulas
based on "natural justice," or others which mean the same thing, n4
are to prevail, they require
[**1697] judges to determine [*512]
what is or is not constitutional on
[***532] the basis of their own
appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course
that of a legislative body. Surely it has to be admitted that no
provision of the Constitution specifically gives such blanket power to courts
to exercise such a supervisory veto over the wisdom and value of legislative
policies and to hold unconstitutional those laws which they believe unwise or
dangerous. I readily admit that no
legislative body, state or national, should pass laws that can justly be given
any [*513] of the invidious labels invoked as
constitutional excuses to strike down state laws. But perhaps it is not too much to say that no
legislative body ever does pass laws without believing that they will
accomplish a sane, rational, wise and justifiable purpose. While I completely subscribe to the holding
of Marbury v. Madison, 1 Cranch 137,
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."
n5 [***533] Such an appraisal of the wisdom of
legislation is an attribute of the power to make laws, not of the power to
interpret them. The use by federal
courts of such a formula or doctrine or whatnot to veto federal or state laws
simply takes away from Congress and States the power to make laws based on
their own judgment of fairness and wisdom and transfers that power to this
Court for ultimate determination -- a power which was specifically [**1698]
denied to federal courts by the convention that framed the Constitution.
n6
n3 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."
n4 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.
n5 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.
n6 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 word illegible] of the members of each branch." 1 The Records
of the Federal Convention of 1787 (Farrand ed. 1911)
21.
In support of a
plan of this kind James Wilson of Pennsylvania argued that:
". . . It had
been said that the Judges, as expositors of the Laws would have an opportunity
of defending their constitutional rights.
There was weight in this observation; but this power of the Judges did
not go far enough. Laws may be unjust,
may be unwise, may be dangerous, may be destructive; and yet not be so
unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of
taking notice of these characters of a law, and of counteracting, by the weight
of their opinions the improper views of the Legislature." 2 id., at
73.
Nathaniel Gorham of
Massachusetts "did not see the advantage of employing the Judges in this
way. As Judges they are not to be
presumed to possess any peculiar knowledge of the mere policy of public
measures." Ibid.
Elbridge Gerry of Massachusetts
likewise opposed the proposal for a council of revision:
". . . He
relied for his part on the Representatives of the people as the guardians of
their Rights & interests. It [the
proposal] was making the Expositors of the Laws, the Legislators which ought
never to be done." Id., at 75.
And at another point:
"Mr. Gerry
doubts whether the Judiciary ought to form a part of it [the proposed council
of revision], as they will have a sufficient check agst.
encroachments on their own department by their exposition of the laws, which
involved a power of deciding on their Constitutionality. . . . It was quite foreign from the nature of ye.
office to make them judges of the policy of public measures." 1 Id.,
at 97-98.
Madison supported the proposal on
the ground that "a Check [on the legislature] is necessary." Id.,
at 108. John Dickinson of Delaware opposed it on the ground that "the
Judges must interpret the Laws they ought not to be legislators." Ibid. The proposal for a council of revision was
defeated.
The following proposal was also
advanced:
"To assist the
President in conducting the Public affairs there shall be a Council of State
composed of the following officers -- 1.
The Chief Justice of the Supreme Court, who shall from time to time
recommend such alterations of and additions to the laws of the U.S. as may in
his opinion be necessary to the due administration of Justice, and such as may
promote useful learning and inculcate sound morality throughout the Union . . .
." 2 id., at 342. This
proposal too was rejected.
[*514]
Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily,
undoubtedly the reasoning of two of them supports their result here -- as would
that of a number of others which they do not bother to name, e. g., [*515]
Lochner v. New York, 198 U.S.
45, [***534] 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 [**1699]
by Mr. Justice McReynolds which elaborated the same natural law due
process philosophy found in Lochner v. New
York, supra, one of the cases on which he relied in Meyer, along
with such other long-discredited decisions as, e. g., Adams v. Tanner,
244 U.S. 590, and Adkins v. Children's Hospital, supra. Meyer
held unconstitutional, as an "arbitrary" and unreasonable
interference with the right of a teacher to carry on his occupation and of
parents to hire him, a [*516] state law forbidding the teaching of modern
foreign languages to young children in the schools. n7 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, n8 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. n9 See Brotherhood
of Railroad Trainmen v. Virginia ex rel. [*517]
Virginia State Bar, 377 U.S. 1, 7-8. n10 Brothers WHITE and
GOLDBERG [***535] [**1700]
now apparently would start from this requirement that laws be narrowly
drafted so as not to curtail free speech and assembly, and extend it
limitlessly to require States to justify any law restricting
"liberty" as my Brethren define "liberty." This would mean
at the [*518] 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.
n11
n7 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.
n8 Compare Poe
v. Ullman, 367 U.S., at 543-544 (HARLAN, J.,
dissenting).
n9 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.
n10 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 it.
n11 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."
My Brother GOLDBERG
has adopted the recent discovery n12 that the Ninth Amendment as well as the
Due Process [***536] Clause can be used by this Court as authority
to strike down all state legislation which this Court thinks [*519]
violates "fundamental principles of liberty and justice," or
is contrary to the "traditions and [collective] conscience of our
people." He also states, without
proof satisfactory to me, that in making decisions on this basis judges will
not consider "their personal and private notions." One may ask how
they can avoid considering them. Our
Court certainly has no machinery with which to take a Gallup Poll. n13 And [**1701]
the scientific miracles of this age have not yet produced a gadget which
the Court can use to determine what traditions are rooted in the
"[collective] conscience of our people." Moreover, one would
certainly have to look far beyond the language of the Ninth Amendment n14 to
find that the Framers vested in this Court any such awesome veto powers over
lawmaking, either by the States or by the Congress. Nor does anything in the history of the
Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the
Constitution and Bill of Rights points the other way, and the very material
quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to
protect against the idea that "by enumerating particular exceptions to the
grant of power" to the Federal Government, "those rights which were
not singled out, were intended to be assigned into the hands of the General
Government [the United States], and were consequently [*520]
insecure." n15 That Amendment was passed, not to broaden the powers
of this Court or any other department of "the General Government,"
but, as every student of history knows, to assure the people that the
Constitution in all its provisions was intended to limit the Federal Government
to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws
unconstitutional because they offend what this Court conceives to be the
"[collective] conscience of our people" is vested in this Court by
the Ninth Amendment, the Fourteenth Amendment, or any other provision of the
Constitution, it was not given by the Framers, but rather has been bestowed on
the Court by the Court. This fact is
perhaps responsible for the peculiar phenomenon that for a period of a century
and a half no serious suggestion
[***537] 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.
n12 See Patterson,
The Forgotten Ninth Amendment (1955).
Mr. Patterson urges that the Ninth Amendment be used to protect
unspecified "natural and inalienable rights." P. 4. The Introduction by Roscoe Pound states that
"there is a marked revival of natural law ideas throughout the world. Interest in the Ninth Amendment is a symptom
of that revival." P. iii.
In Redlich, Are There "Certain Rights . . . Retained by
the People"?, 37 N. Y. U. L. Rev. 787, Professor Redlich,
in advocating reliance on the Ninth and Tenth Amendments to invalidate the
Connecticut law before us, frankly states:
"But for one
who feels that the marriage relationship should be beyond the reach of a state
law forbidding the use of contraceptives, the birth control case poses a
troublesome and challenging problem of constitutional interpretation. He may find himself saying, 'The law is
unconstitutional -- but why?' There are two possible paths to travel in finding
the answer. One is to revert to a
frankly flexible due process concept even on matters that do not involve
specific constitutional prohibitions.
The other is to attempt to evolve a new constitutional framework within
which to meet this and similar problems which are likely to arise."
n13 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.
n14 U.S. Const.,
Amend. IX, provides:
"The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
n15 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."
I repeat so as not
to be misunderstood that this Court does have power, which it should exercise,
to hold laws unconstitutional where they are forbidden by the Federal
Constitution. My point is that there is
no provision [*521] of the Constitution which either expressly or
impliedly vests power in this Court to sit as a supervisory agency over acts of
duly constituted legislative bodies and set aside their laws because of the
Court's belief that the legislative policies adopted are unreasonable, unwise,
arbitrary, capricious or irrational. The
adoption of such a loose, flexible, uncontrolled standard for holding laws
unconstitutional, if ever it is finally achieved, will amount to [**1702]
a great unconstitutional shift of power to the courts which I believe
and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an
unrestrained and unrestrainable judicial control as
to the wisdom of legislative enactments would, I fear, jeopardize the
separation of governmental powers that the Framers set up and at the same time
threaten to take away much of the power of States to govern themselves which
the Constitution plainly intended them
to have. n16
n16 Justice Holmes
in one of his last dissents, written in reply to Mr. Justice McReynolds'
opinion for the Court in Baldwin v. Missouri, 281 U.S. 586,
solemnly warned against a due process formula apparently approved by my concurring
Brethren today. He said:
"I have not yet adequately
expressed the more than anxiety that I feel at the ever increasing scope given
to the 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
[*522]
I realize that many good and able men have eloquently spoken and
written, sometimes in rhapsodical strains, about the
duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed
from time to time and that this Court is charged with a duty to make those
changes. For myself, I must with all
deference reject that philosophy. The
Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected
representatives can be submitted to the people or their selected agents for
ratification. That method of change was
good for our Fathers, and being somewhat old-fashioned I must add it is good
enough for me. And so, I cannot rely on
the Due Process Clause or [***538] 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.
n17 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.
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 n18 that
"The doctrine
that prevailed in Lochner, Coppage, Adkins, Burns, and like cases -- that due
process authorizes courts to hold laws unconstitutional when they believe the
legislature has acted unwisely -- has long since been discarded. We have returned to the original
constitutional proposition that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies, who are elected to
pass laws."
And only six weeks ago, without even bothering to hear
argument, this Court overruled Tyson & Brother v. Banton, 273 U.S. 418, which had held state laws
regulating ticket brokers to be a denial of due process of law. n19 Gold [*524]
v. DiCarlo, 380
n18 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.
n19 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.
n20 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 Brethren today.
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
[**1704] never resort to that
authority, but in a clear and urgent case.
If, on the other hand, the Legislature of the Union, or the Legislature
of any member of the Union, shall pass a law, within the [*525]
general scope of their constitutional power, the Court cannot pronounce
it to be void, merely because it is, in their judgment, contrary to the
principles of natural justice. The ideas
of natural justice are regulated by no fixed standard: the ablest and the
purest men have differed upon the subject; and all that the Court could
properly say, in such an event, would be, that the Legislature (possessed of an
equal right of opinion) had passed an act which, in the opinion of the judges,
was inconsistent with the abstract principles of natural justice." Calder
v. Bull, 3 Dall. 386, 399 (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
[***540] the Constitution: in the
other, they roam at will in the limitless
[*526] area of their own beliefs
as to reasonableness and actually select policies, a responsibility which the
Constitution entrusts to the legislative representatives of the people.' Federal
Power Commission v. Pipeline Co., 315 U.S. 575, 599, 601, n.
4." n21 (Footnotes omitted.)
The late Judge Learned Hand, after emphasizing his
view that judges should not
[**1705] use the due process
formula suggested in the concurring opinions today or any other formula like it
to invalidate legislation offensive to their "personal preferences,"
n22 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
[*527] knew how to choose them,
which I assuredly do not." n23
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.
n21 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.
n22 Hand, The Bill
of Rights (1958) 70. See note 5, supra. See generally id., at 35-45.
n23 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.
MR. JUSTICE STEWART,
whom MR. JUSTICE BLACK joins, dissenting.
Since 1879
Connecticut has had on its books a law which forbids the use of contraceptives
by anyone. I think this is an uncommonly
silly law. As a practical matter, the
law is obviously unenforceable, except in the oblique context of the present
case. As a philosophical matter, I
believe the use of contraceptives in the relationship of marriage should be
left to personal and private choice, based upon each individual's moral,
ethical, and religious beliefs. As a
matter of social policy, I think professional counsel about methods of birth
control should be available to all, so that each individual's choice can be
meaningfully made. But we are not asked
in this case to say whether we think this law is unwise, or even asinine. We are asked to [***541]
hold that it violates the United States Constitution. And that I cannot do.
In the course of
its opinion the Court refers to no less than six Amendments to the
Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the
Fourteenth. [*528] But the Court does not say which of these
Amendments, if any, it thinks is infringed by this Connecticut law.
We are told
that the Due Process Clause of the Fourteenth Amendment is not, as such, the
"guide" in this case. With
that much I agree. There is no claim
that this law, duly enacted by the Connecticut Legislature, is
unconstitutionally vague. There is no
claim that the appellants were denied any of the elements of procedural due
process at their trial, so as to make their convictions constitutionally
invalid. And, as the Court says, the day
has long passed since the Due Process Clause was regarded as a proper
instrument for determining "the wisdom, need, and propriety" of state
laws. Compare Lochner
v. 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. n1 It has
[*529] not even been argued [**1706]
that this is a law "respecting an establishment of religion, or
prohibiting the free exercise thereof." n2 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." n3 No soldier has
been quartered in any house. n4 There has been no search, and no seizure. n5
Nobody has been compelled [***542] to be a witness against himself. n6
n1 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).
n2 U.S.
Constitution, Amendment I. To be sure,
the injunction contained in the Connecticut statute coincides with the doctrine
of certain religious faiths. But if that
were enough to invalidate a law under the provisions of the First Amendment
relating to religion, then most criminal laws would be invalidated. See, e. g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James).
n3 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.
n4 U.S.
Constitution, Amendment III.
n5 U.S.
Constitution, Amendment IV.
n6 U.S.
Constitution, Amendment V.
The Court also
quotes the Ninth Amendment, and my Brother GOLDBERG's
concurring opinion relies heavily upon it.
But to say that the Ninth Amendment has anything to do with this case is
to turn somersaults with history. The
Ninth Amendment, like its companion the Tenth, which this Court held
"states but a truism that all is retained which has not been
surrendered," United States v. Darby, 312 U.S. 100, 124, was
framed by James Madison and adopted by the States simply to make clear that the
adoption of the Bill of Rights did not alter the plan that [*530]
the Federal Government was to be a government of express and
limited powers, and that all rights and powers not delegated to it were
retained by the people and the individual States. Until today no member of this Court has ever
suggested that the Ninth Amendment meant anything else, and the idea that a
federal court could ever use the Ninth Amendment to annul a law passed by the
elected representatives of the people of the State of Connecticut would have
caused James Madison no little wonder.
What provision of
the Constitution, then, does make this state law invalid? The Court says it is the right of privacy
"created by several fundamental constitutional guarantees." With all
deference, I can find no such general right of privacy in the Bill of Rights,
in any other part of the Constitution, or in any case ever before decided by
this Court. n7
n7 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 criminal law which
discriminated against Negroes.
The Court does not
say how far the new constitutional right of privacy announced today
extends. See, e. g., Mueller,
Legal Regulation of Sexual Conduct, at 127; Ploscowe,
Sex and the Law, at 189. I suppose,
however, that even after today a State can constitutionally still punish at
least some offenses which are not committed in public.
At [**1707]
the oral argument in this case we were told that the Connecticut law
does not "conform to current community standards." But it is not the
function of this Court to decide cases on the basis of community
standards. We are here to decide cases
"agreeably to the Constitution and laws of the United States." It is
the essence of judicial [*531] duty to subordinate our own personal views,
our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before
us does not reflect the standards of the people of Connecticut, the people of
Connecticut can freely exercise their true Ninth and Tenth Amendment rights to
persuade their elected representatives to repeal it. That is the constitutional way to take this
law off the books. n8
n8 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.