381 U.S. 479
GRISWOLD ET AL. v. CONNECTICUT.
APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT.
No. 496.
Argued March 29-30, 1965.
Decided June 7, 1965.
Appellants, the Executive Director of the Planned Parenthood League of
Connecticut, and its medical director, a licensed physician, were convicted as
accessories for giving married persons information and medical advice on how to
prevent conception and, following examination, prescribing a contraceptive
device or material for the wife's use. A Connecticut statute makes it a crime
for any person to use any drug or article to prevent conception. Appellants
claimed that the accessory statute as applied violated the Fourteenth
Amendment. An intermediate appellate court and the State's highest court
affirmed the judgment. Held:
1. Appellants have standing to
assert the constitutional rights of the married people. Tileston v. Ullman, 318
U.S. 44 , distinguished. P. 481.
2. The Connecticut statute
forbidding use of contraceptives violates the right of marital privacy which is
within the penumbra of specific guarantees of the Bill of Rights. Pp. 481-486.
151 Conn. 544, 200 A. 2d 479, reversed.
Thomas I. Emerson argued the cause for appellants. With him on the briefs
was Catherine G. Roraback.
Joseph B. Clark argued the cause for appellee. With him on the brief was
Julius Maretz.
Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour
and Eleanor M. Fox for Dr. John M. Adams et al.; by Morris L. Ernst, Harriet F.
Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America,
Inc.; by Alfred L. Scanlon for the Catholic Council on Civil Liberties, and by
Rhoda H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for the American Civil
Liberties Union et al. [381 U.S.
479, 480]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of
Connecticut. Appellant Buxton is a licensed physician and a professor at the
Yale Medical School who served as Medical Director for the League at its Center
in New Haven - a center open and operating from November 1 to November 10,
1961, when appellants were arrested.
They gave information, instruction, and medical advice to married persons as
to the means of preventing conception. They examined the wife and prescribed
the best contraceptive device or material for her use. Fees were usually
charged, although some couples were serviced free.
The statutes whose constitutionality is involved in this appeal are 53-32
and 54-196 of the General Statutes of Connecticut (1958 rev.). The former
provides:
"Any person who uses any drug,
medicinal article or instrument for the purpose of preventing conception shall
be fined not less than fifty dollars or imprisoned not less than sixty days nor
more than one year or be both fined and imprisoned."
Section 54-196 provides:
"Any person who assists,
abets, counsels, causes, hires or commands another to commit any offense may be
prosecuted and punished as if he were the principal offender."
The appellants were found guilty as accessories and fined
$100 each, against the claim that the accessory statute as so applied violated
the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed.
The Supreme Court of Errors affirmed that judgment. 151 Conn. 544, 200 A. 2d
479. We noted probable jurisdiction. 379
U.S. 926 . [381 U.S. 479, 481]
We think that appellants have standing to raise the constitutional rights of
the married people with whom they had a professional relationship. Tileston v.
Ullman, 318
U.S. 44 , is different, for there the plaintiff seeking to represent others
asked for a declaratory judgment. In that situation we thought that the
requirements of standing should be strict, lest the standards of "case or
controversy" in Article III of the Constitution become blurred. Here those
doubts are removed by reason of a criminal conviction for serving married
couples in violation of an aiding-and-abetting statute. Certainly the accessory
should have standing to assert that the offense which he is charged with
assisting is not, or cannot constitutionally be, a crime.
This case is more akin to Truax v. Raich, 239
U.S. 33 , where an employee was permitted to assert the rights of his
employer; to Pierce v. Society of Sisters, 268
U.S. 510 , where the owners of private schools were entitled to assert the
rights of potential pupils and their parents; and to Barrows v. Jackson, 346
U.S. 249 , where a white defendant, party to a racially restrictive
covenant, who was being sued for damages by the covenantors because she had
conveyed her property to Negroes, was allowed to raise the issue that
enforcement of the covenant violated the rights of prospective Negro purchasers
to equal protection, although no Negro was a party to the suit. And see Meyer
v. Nebraska, 262
U.S. 390 ; Adler v. Board of Education, 342
U.S. 485 ; NAACP v. Alabama, 357
U.S. 449 ; NAACP v. Button, 371
U.S. 415 . The rights of husband and wife, pressed here, are likely to be
diluted or adversely affected unless those rights are considered in a suit involving
those who have this kind of confidential relation to them.
Coming to the merits, we are met with a wide range of questions that
implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some
arguments [381 U.S. 479, 482]
suggest that Lochner v. New York, 198
U.S. 45 , should be our guide. But we decline that invitation as we did in
West Coast Hotel Co. v. Parrish, 300
U.S. 379 ; Olsen v. Nebraska, 313
U.S. 236 ; Lincoln Union v. Northwestern Co., 335
U.S. 525 ; Williamson v. Lee Optical Co., 348
U.S. 483 ; Giboney v. Empire Storage Co., 336
U.S. 490 . We do not sit as a super-legislature to determine the wisdom,
need, and propriety of laws that touch economic problems, business affairs, or
social conditions. This law, however, operates directly on an intimate relation
of husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the
Bill of Rights. The right to educate a child in a school of the parents' choice
- whether public or private or parochial - is also not mentioned. Nor is the
right to study any particular subject or any foreign language. Yet the First
Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters, supra, the right to educate one's children
as one chooses is made applicable to the States by the force of the First and
Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given
the right to study the German language in a private school. In other words, the
State may not, consistently with the spirit of the First Amendment, contract
the spectrum of available knowledge. The right of freedom of speech and press
includes not only the right to utter or to print, but the right to distribute,
the right to receive, the right to read (Martin v. Struthers, 319
U.S. 141, 143 ) and freedom of inquiry, freedom of thought, and freedom to
teach (see Wieman v. Updegraff, 344
U.S. 183, 195 ) - indeed the freedom of the entire university community.
Sweezy v. New Hampshire, 354
U.S. 234, 249 -250, 261-263; Barenblatt v. United States, 360
U.S. 109, 112 ; Baggett v. Bullitt, 377
U.S. 360, 369 . Without [381
U.S. 479, 483] those peripheral rights the specific rights would
be less secure. And so we reaffirm the principle of the Pierce and the Meyer
cases.
In NAACP v. Alabama, 357
U.S. 449, 462 , we protected the "freedom to associate and privacy in
one's associations," noting that freedom of association was a peripheral
First Amendment right. Disclosure of membership lists of a constitutionally
valid association, we held, was invalid "as entailing the likelihood of a
substantial restraint upon the exercise by petitioner's members of their right
to freedom of association." Ibid. In other words, the First Amendment has
a penumbra where privacy is protected from governmental intrusion. In like
context, we have protected forms of "association" that are not
political in the customary sense but pertain to the social, legal, and economic
benefit of the members. NAACP v. Button, 371
U.S. 415, 430 -431. In Schware v. Board of Bar Examiners, 353
U.S. 232 , we held it not permissible to bar a lawyer from practice,
because he had once been a member of the Communist Party. The man's
"association with that Party" was not shown to be "anything more
than a political faith in a political party" (id., at 244) and was not
action of a kind proving bad moral character. Id., at 245-246.
Those cases involved more than the "right of assembly" - a right
that extends to all irrespective of their race or ideology. De Jonge v. Oregon,
299
U.S. 353 . The right of "association," like the right of belief
(Board of Education v. Barnette, 319
U.S. 624 ), is more than the right to attend a meeting; it includes the
right to express one's attitudes or philosophies by membership in a group or by
affiliation with it or by other lawful means. Association in that context is a
form of expression of opinion; and while it is not expressly included in the
First Amendment its existence is necessary in making the express guarantees
fully meaningful. [381 U.S. 479,
484]
The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help give them
life and substance. See Poe v. Ullman, 367
U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition against
the quartering of soldiers "in any house" in time of peace without
the consent of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures."
The Fifth Amendment in its Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people."
The Fourth and Fifth Amendments were described in Boyd v. United States, 116
U.S. 616, 630 , as protection against all governmental invasions "of
the sanctity of a man's home and the privacies of life." * We recently referred [381 U.S. 479, 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).
We have had many controversies over these penumbral rights of "privacy
and repose." See, e. g., Breard v. Alexandria, 341
U.S. 622, 626 , 644; Public Utilities Comm'n v. Pollak, 343
U.S. 451 ; Monroe v. Pape, 365
U.S. 167 ; Lanza v. New York, 370
U.S. 139 ; Frank v. Maryland, 359
U.S. 360 ; Skinner v. Oklahoma, 316
U.S. 535, 541 . These cases bear witness that the right of privacy which
presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of
privacy created by several fundamental constitutional guarantees. And it concerns
a law which, in forbidding the use of contraceptives rather than regulating
their manufacture or sale, seeks to achieve its goals by means having a maximum
destructive impact upon that relationship. Such a law cannot stand in light of
the familiar principle, so often applied by this Court, that a
"governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."
NAACP v. Alabama, 377
U.S. 288, 307 . Would we allow the police to search the sacred precincts of
marital bedrooms for telltale signs of the use of contraceptives? The [381 U.S. 479, 486] very
idea is repulsive to the notions of privacy surrounding the marriage
relationship.
We deal with a right of privacy older than the Bill of Rights - older than
our political parties, older than our school system. Marriage is a coming
together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose
as any involved in our prior decisions.
Reversed.
[ Footnote * ] 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 [381
U.S. 479, 485] Lord Camden's judgment. Breaking into a house and
opening boxes and drawers are circumstances of aggravation; but any forcible
and compulsory extortion of a man's own testimony or of his private papers to
be used as evidence to convict him of crime or to forfeit his goods, is within
the condemnation of that judgment. In this regard the Fourth and Fifth
Amendments run almost into each other." 116
U.S., at 630 .
MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR.
JUSTICE BRENNAN join, concurring.
I agree with the Court that Connecticut's birth-control law unconstitutionally
intrudes upon the right of marital privacy, and I join in its opinion and
judgment. Although I have not accepted the view that "due process" as
used in the Fourteenth Amendment incorporates all of the first eight Amendments
(see my concurring opinion in Pointer v. Texas, 380
U.S. 400, 410 , and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen
v. Hurley, 366
U.S. 117, 154 ), I do agree that the concept of liberty protects those
personal rights that are fundamental, and is not confined to the specific terms
of the Bill of Rights. My conclusion that the concept of liberty is not so
restricted and that it embraces the right of marital privacy though that right
is not mentioned explicitly in the Constitution 1 is supported both by
numerous [381 U.S. 479, 487]
decisions of this Court, referred to in the Court's opinion, and
by the language and history of the Ninth Amendment. In reaching the conclusion
that the right of marital privacy is protected, as being within the protected
penumbra of specific guarantees of the Bill of Rights, the Court refers to the
Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of
that Amendment to the Court's holding.
The Court stated many years ago that the Due Process Clause protects those
liberties that are "so rooted in the traditions and conscience of our
people as to be ranked as fundamental." Snyder v. Massachusetts, 291
U.S. 97, 105 . In Gitlow v. New York, 268
U.S. 652, 666 , the Court said:
"For present purposes we may
and do assume that freedom of speech and of the press - which are protected by
the First Amendment from abridgment by Congress - are among the fundamental
personal rights and `liberties' protected by the due process clause of the
Fourteenth Amendment from impairment by the States." (Emphasis added.) [381 U.S. 479, 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 rights. 2 The language and history
of the Ninth Amendment reveal that the Framers of the Constitution believed
that there are additional fundamental rights, protected from governmental
infringement, which exist alongside those fundamental rights specifically
mentioned in the first eight constitutional amendments.
The Ninth Amendment reads, "The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by
the people." The Amendment is almost entirely the work of James Madison.
It was introduced in Congress by him and passed the House and Senate with
little or no debate and virtually no change in language. It was proffered to
quiet expressed fears that a bill of specifically enumerated rights 3 could not be
sufficiently broad to cover all essential [381 U.S. 479, 489] rights and that the specific
mention of certain rights would be interpreted as a denial that others were
protected. 4
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 [381 U.S. 479, 490] last clause of the
fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales
and Seaton ed. 1834).
Mr. Justice Story wrote of this argument against a bill of
rights and the meaning of the Ninth Amendment:
"In regard to . . . [a]
suggestion, that the affirmance of certain rights might disparage others, or
might lead to argumentative implications in favor of other powers, it might be
sufficient to say that such a course of reasoning could never be sustained upon
any solid basis . . . . But a conclusive answer is, that such an attempt may be
interdicted (as it has been) by a positive declaration in such a bill of rights
that the enumeration of certain rights shall not be construed to deny or
disparage others retained by the people." II Story, Commentaries on the
Constitution of the United States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth Amendment:
"This clause was manifestly
introduced to prevent any perverse or ingenious misapplication of the
well-known maxim, that an affirmation in particular cases implies a negation in
all others; and, e converso, that a negation in particular cases implies an
affirmation in all others." Id., at 651.
These statements of Madison and Story make clear that the
Framers did not intend that the first eight amendments be construed to exhaust
the basic and fundamental rights which the Constitution guaranteed to the
people. 5
While this Court has had little occasion to interpret the Ninth Amendment, 6 "[i]t cannot be
presumed that any [381 U.S. 479,
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 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 [381 U.S. 479, 492] "[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people." (Emphasis added.)
A dissenting opinion suggests that my interpretation of the Ninth Amendment
somehow "broaden[s] the powers of this Court." Post, at 520. With all
due respect, I believe that it misses the import of what I am saying. I do not
take the position of my Brother BLACK in his dissent in Adamson v. California, 332
U.S. 46, 68 , that the entire Bill of Rights is incorporated in the
Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is
applied against the States by the Fourteenth. Nor do I mean to state that the
Ninth Amendment constitutes an independent source of rights protected from
infringement by either the States or the Federal Government. Rather, the Ninth
Amendment shows a belief of the Constitution's authors that fundamental rights
exist that are not expressly enumerated in the first eight amendments and an
intent that the list of rights included there not be deemed exhaustive. As any
student of this Court's opinions knows, this Court has held, often unanimously,
that the Fifth and Fourteenth Amendments protect certain fundamental personal
liberties from abridgment by the Federal Government or the States. See, e. g.,
Bolling v. Sharpe, 347
U.S. 497 ; Aptheker v. Secretary of State, 378
U.S. 500 ; Kent v. Dulles, 357
U.S. 116 ; Cantwell v. Connecticut, 310
U.S. 296 ; NAACP v. Alabama, 357
U.S. 449 ; Gideon v. Wainwright, 372
U.S. 335 ; New York Times Co. v. Sullivan, 376
U.S. 254 . The Ninth Amendment simply shows the intent of the
Constitution's authors that other fundamental personal rights should not be
denied such protection or disparaged in any other way simply because they are
not specifically listed in the first eight constitutional amendments. I do not
see how this broadens the authority [381
U.S. 479, 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 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 [381 U.S. 479, 494] v.
Ullman, 367
U.S. 497, 517 (dissenting opinion of MR. JUSTICE DOUGLAS). 7
I agree fully with the Court that, applying these tests, the right of
privacy is a fundamental personal right, emanating "from the totality of
the constitutional scheme under which we live." Id., at 521. Mr. Justice
Brandeis, dissenting in Olmstead v. United States, 277
U.S. 438, 478 , comprehensively summarized the principles underlying the
Constitution's guarantees of privacy:
"The protection guaranteed by
the [Fourth and Fifth] Amendments is much broader in scope. The makers of our
Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man's spiritual nature, of his
feelings and of his intellect. They knew that only a part of the pain, pleasure
and satisfactions of life are to be found in material things. They sought to
protect Americans in their beliefs, their thoughts, their emotions and their
sensations. They conferred, as against the Government, the right to be let
alone - the most comprehensive of rights and the right most valued by civilized
men." [381 U.S. 479, 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 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."
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 [381 U.S. 479, 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
"[w]hile 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 . .
. ." 8 The vice of
the dissenters' views is that it would permit such experimentation by the
States in the area of the fundamental personal rights of its citizens. I cannot
agree that the Constitution grants such power either to the States or to the
Federal Government.
The logic of the dissents would sanction federal or state legislation that
seems to me even more plainly unconstitutional than the statute before us.
Surely the Government, absent a showing of a compelling subordinating state
interest, could not decree that all husbands and wives must be sterilized after
two children have been born [381
U.S. 479, 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 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 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 [381 U.S. 479,
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 extramarital relations. The rationality of this justification
is dubious, particularly in light of the admitted widespread availability to
all persons in the State of Connecticut, unmarried as well as married, of
birth-control devices for the prevention of disease, as distinguished from the
prevention of conception, see Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582.
But, in any event, it is clear that the state interest in safeguarding marital
fidelity can be served by a more discriminately tailored statute, which does
not, like the present one, sweep unnecessarily broadly, reaching far beyond the
evil sought to be dealt with and intruding upon the privacy of all married
couples. See Aptheker v. Secretary of State, 378
U.S. 500, 514 ; NAACP v. Alabama, 377
U.S. 288, 307 -308; McLaughlin v. Florida, supra, at 196. Here, as
elsewhere, where, "[p]recision of regulation must be the touchstone in an
area so closely touching our most precious freedoms." NAACP v. Button, 371
U.S. 415, 438 . The State of Connecticut does have statutes, the
constitutionality of which is beyond doubt, which prohibit adultery and
fornication. See Conn. Gen. Stat. 53-218, 53-219 et seq. These statutes
demonstrate that means for achieving the same basic purpose of protecting
marital fidelity are available to Connecticut without the need to "invade
the area of protected freedoms." NAACP v. Alabama, supra, at 307. See
McLaughlin v. Florida, supra, at 196.
Finally, it should be said of the Court's holding today that it in no way
interferes with a State's proper regulation [381 U.S. 479, 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 State forbids . . . but the intimacy
of husband and wife is necessarily an essential and accepted feature of the
institution of marriage, an institution which the State not only must allow,
but which always and in every age it has fostered and protected. It is one
thing when the State exerts its power either to forbid extra-marital sexuality
. . . or to say who may marry, but it is quite another when, having
acknowledged a marriage and the intimacies inherent in it, it undertakes to
regulate by means of the criminal law the details of that intimacy."
In sum, I believe that the right of privacy in the marital
relation is fundamental and basic - a personal right "retained by the
people" within the meaning of the Ninth Amendment. Connecticut cannot
constitutionally abridge this fundamental right, which is protected by the
Fourteenth Amendment from infringement by the States. I agree with the Court
that petitioners' convictions must therefore be reversed.
[ Footnote
1 ] My Brother STEWART dissents on the ground that he "can find no . .
. general right of privacy in the Bill of Rights, in any other part of the
Constitution, or in any case ever before decided by this Court." Post, at
530. He would require a more explicit guarantee than the one which the Court
derives from several constitutional amendments. This Court, however, has never
held that the Bill of Rights or the [381
U.S. 479, 487] Fourteenth Amendment protects only those rights
that the Constitution specifically mentions by name. See, e. g., Bolling v.
Sharpe, 347
U.S. 497 ; Aptheker v. Secretary of State, 378
U.S. 500 ; Kent v. Dulles, 357
U.S. 116 ; Carrington v. Rash, 380
U.S. 89, 96 ; Schware v. Board of Bar Examiners, 353
U.S. 232 ; NAACP v. Alabama, 360
U.S. 240 ; Pierce v. Society of Sisters, 268
U.S. 510 ; Meyer v. Nebraska, 262
U.S. 390 . To the contrary, this Court, for example, in Bolling v. Sharpe,
supra, while recognizing that the Fifth Amendment does not contain the
"explicit safeguard" of an equal protection clause, id., at 499,
nevertheless derived an equal protection principle from that Amendment's Due Process
Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that
the Fourteenth Amendment protects from arbitrary state action the right to
pursue an occupation, such as the practice of law.
[ Footnote 2 ] 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 .
[ Footnote 3 ]
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.
[ Footnote 4 ]
Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary
because the Federal Government was a government of delegated powers and it was
not granted the power to intrude upon fundamental personal rights. The
Federalist, No. 84 (Cooke ed. 1961), at 578-579. He also argued,
"I go further, and affirm that
bills of rights, in the sense and in the extent in which they are contended
for, are not only unnecessary in the proposed constitution, but would even be
dangerous. They would contain various exceptions to powers which are not
granted; and on this very account, would afford a colourable pretext to claim
more than were granted. For why declare that things shall not be done which
there 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.
[ Footnote 5 ] The
Tenth Amendment similarly made clear that the States and the people retained
all those powers not expressly delegated to the Federal Government.
[ Footnote 6 ] 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 [381
U.S. 479, 491] 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."
[ Footnote 7 ] In
light of the tests enunciated in these cases it cannot be said that a judge's
responsibility to determine whether a right is basic and fundamental in this
sense vests him with unrestricted personal discretion. In fact, a hesitancy to
allow too broad a discretion was a substantial reason leading me to conclude in
Pointer v. Texas, supra, at 413-414, that those rights absorbed by the
Fourteenth Amendment and applied to the States because they are fundamental
apply with equal force and to the same extent against both federal and state
governments. In Pointer I said that the contrary view would require "this
Court to make the extremely subjective and excessively 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.
[ Footnote 8 ]
Pointer v. Texas, supra, at 413. See also the discussion of my Brother DOUGLAS.
Poe v. Ullman, supra, at 517-518 (dissenting opinion).
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. [381 U.S. 479, 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 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 [381 U.S. 479, 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, 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 [381 U.S. 479, 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. *
[ Footnote * ]
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
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 [381
U.S. 479, 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
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 [381
U.S. 479, 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 . "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 . * [381 U.S. 479, 505]
As I read the opinions of the Connecticut courts and the argument of
Connecticut in this Court, the State claims but one justification for its
anti-use statute. Cf. Allied Stores of Ohio v. Bowers, 358
U.S. 522, 530 ; Martin v. Walton, 368
U.S. 25, 28 (DOUGLAS, J., dissenting). There is no serious contention that
Connecticut thinks the use of artificial or external methods of contraception
immoral or unwise in itself, or that the anti-use statute is founded upon any
policy of promoting population expansion. Rather, the statute is said to serve
the State's policy against all forms of promiscuous or illicit sexual
relationships, be they premarital or extramarital, concededly a permissible and
legitimate legislative goal.
Without taking issue with the premise that the fear of conception operates
as a deterrent to such relationships in addition to the criminal proscriptions
Connecticut has against such conduct, I wholly fail to see how the ban on the
use of contraceptives by married couples in any way reinforces the State's ban
on illicit sexual relationships. See Schware v. Board of Bar Examiners, 353
U.S. 232, 239 . Connecticut does not bar the importation or possession of
contraceptive devices; they are not considered contraband material under state
law, State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863, and
their availability in that State is not seriously disputed. The only way
Connecticut seeks to limit or control the availability of such devices is
through its general aiding and abetting statute whose operation in this context
has [381 U.S. 479, 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 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 [381 U.S. 479, 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.
[ Footnote * ]
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 [381 U.S.
479, 505] 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).
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 [381 U.S. 479, 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 so as to afford protection to
the conduct of these defendants in violating the Connecticut law. What would be
the constitutional fate of the law if hereafter applied to punish nothing but
speech is, as I have said, quite another matter.
The Court talks about a constitutional "right of privacy" as
though there is some constitutional provision or provisions forbidding any law
ever to be passed which might abridge the "privacy" of individuals.
But there is not. There are, of course, guarantees in certain specific
constitutional provisions which are designed in part to protect privacy at
certain times and places with respect to certain activities. Such, for example,
is the Fourth [381 U.S. 479, 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 [381 U.S. 479, 510] one or
more constitutional provisions. 1 I like my privacy as
well as the next one, but I am nevertheless compelled to admit that government
has a right to invade it unless prohibited by some specific constitutional
provision. For these reasons I cannot agree with the Court's judgment and the
reasons it gives for holding this Connecticut law unconstitutional.
This brings me to the arguments made by my Brothers HARLAN, WHITE and
GOLDBERG for invalidating the Connecticut law. Brothers HARLAN 2 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 [381 U.S. 479, 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.
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." 3 If these formulas
based on "natural justice," or others which mean the same thing, 4 are to prevail, they
require judges to determine [381
U.S. 479, 512] what is or is not constitutional on the basis of
their own appraisal of what laws are unwise or unnecessary. The power to make
such decisions is of course that of a legislative body. Surely it has to be
admitted that no provision of the Constitution specifically gives such blanket
power to courts to exercise such a supervisory veto over the wisdom and value
of legislative policies and to hold unconstitutional those laws which they
believe unwise or dangerous. I readily admit that no legislative body, state or
national, should pass laws that can justly be given any [381 U.S. 479, 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." 5 Such an appraisal of
the wisdom of legislation is an attribute of the power to make laws, not of the
power to interpret them. The use by federal courts of such a formula or
doctrine or whatnot to veto federal or state laws simply takes away from
Congress and States the power to make laws based on their own judgment of
fairness and wisdom and transfers that power to this Court for ultimate
determination - a power which was specifically denied to federal courts by the
convention that framed the Constitution. 6 [381 U.S. 479, 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., [381 U.S. 479, 515] Lochner
v. New York, 198
U.S. 45 , Coppage v. Kansas, 236
U.S. 1 , Jay Burns Baking Co. v. Bryan, 264
U.S. 504 , and Adkins v. Children's Hospital, 261
U.S. 525 . The two they do cite and quote from, Meyer v. Nebraska, 262
U.S. 390 , and Pierce v. Society of Sisters, 268
U.S. 510 , were both decided in opinions by Mr. Justice McReynolds which
elaborated the same natural law due process philosophy found in Lochner v. New
York, supra, one of the cases on which he relied in Meyer, along with such
other long-discredited decisions as, e. g., Adams v. Tanner, 244
U.S. 590 , and Adkins v. Children's Hospital, supra. Meyer held
unconstitutional, as an "arbitrary" and unreasonable interference
with the right of a teacher to carry on his occupation and of parents to hire
him, a [381 U.S. 479, 516] state
law forbidding the teaching of modern foreign languages to young children in
the schools. 7 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 State through the Fourteenth, 8 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. 9 See
Brotherhood of Railroad Trainmen v. Virginia ex rel. [381 U.S. 479, 517] Virginia State Bar, 377
U.S. 1, 7 -8. 10 Brothers
WHITE and GOLDBERG now apparently would start from this requirement that laws
be narrowly drafted so as not to curtail free speech and assembly, and extend
it limitlessly to require States to justify any law restricting
"liberty" as my Brethren define "liberty." This would mean
at the [381 U.S. 479, 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. 11
My Brother GOLDBERG has adopted the recent discovery 12 that the Ninth
Amendment as well as the Due Process Clause can be used by this Court as
authority to strike down all state legislation which this Court thinks [381 U.S. 479, 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. 13 And the scientific
miracles of this age have not yet produced a gadget which the Court can use to
determine what traditions are rooted in the "[collective] conscience of
our people." Moreover, one would certainly have to look far beyond the
language of the Ninth Amendment 14 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 Bother 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 [381 U.S. 479, 520] insecure."
15 That Amendment was
passed, not to broaden the powers of this Court or any other department of
"the General Government," but, as every student of history knows, to
assure the people that the Constitution in all its provisions was intended to
limit the Federal Government to the powers granted expressly or by necessary
implication. If any broad, unlimited power to hold laws unconstitutional
because they offend what this Court conceives to be the "[collective]
conscience of our people" is vested in this Court by the Ninth Amendment,
the Fourteenth Amendment, or any other provision of the Constitution, it was
not given by the Framers, but rather has been bestowed on the Court by the
Court. This fact is perhaps responsible for the peculiar phenomenon that for a period
of a century and a half no serious suggestion was ever made that the Ninth
Amendment, enacted to protect state powers against federal invasion, could be
used as a weapon of federal power to prevent state legislatures from passing
laws they consider appropriate to govern local affairs. Use of any such broad,
unbounded judicial authority would make of this Court's members a day-to-day
constitutional convention.
I repeat so as not to be misunderstood that this Court does have power,
which it should exercise, to hold laws unconstitutional where they are
forbidden by the Federal Constitution. My point is that there is no provision [381 U.S. 479, 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 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. 16 [381 U.S. 479, 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 the
Ninth Amendment or any mysterious and uncertain natural law concept as a reason
for striking down this state law. The Due Process Clause with an
"arbitrary and capricious" or "shocking to the conscience"
formula was liberally used by this Court to strike down economic legislation in
the early decades of this century, threatening, many people thought, the
tranquility and stability of the Nation. See, e. g., Lochner v. New York, 198
U.S. 45 . That formula, based on subjective considerations of "natural
justice," is no less dangerous when used to enforce this Court's views
about personal rights than those about economic rights. I had thought that we
had laid that formula, as a means for striking down state legislation, to rest
once and for all in cases like West Coast Hotel Co. v. Parrish, 300
U.S. 379 ; Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313
U.S. 236 , and many other [381
U.S. 479, 523] opinions. 17 See also Lochner v.
New York, 198
U.S. 45, 74 (Holmes, J., dissenting).
In Ferguson v. Skrupa, 372
U.S. 726, 730 , this Court two years ago said in an opinion joined by all
the Justices but one 18 that
"The doctrine that prevailed
in Lochner, Coppage, Adkins, Burns, and like cases - that due process
authorizes courts to hold laws unconstitutional when they believe the
legislature has acted unwisely - has long since been discarded. We have
returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws."
And only six weeks ago, without even bothering to hear
argument, this Court overruled Tyson & Brother v. Banton, 273
U.S. 418 , which had held state laws regulating ticket brokers to be a
denial of due process of law. 19 Gold [381 U.S. 479, 524] v.
DiCarlo, 380
U.S. 520 . I find April's holding hard to square with what my concurring
Brethren urge today. They would reinstate the Lochner, Coppage, Adkins, Burns line
of cases, cases from which this Court recoiled after the 1930's, and which had
been I thought totally discredited until now. Apparently my Brethren have less
quarrel with state economic regulations than former Justices of their
persuasion had. But any limitation upon their using the natural law due process
philosophy to strike down any state law, dealing with any activity whatever,
will obviously be only self-imposed. 20
In 1798, when this Court was asked to hold another Connecticut law
unconstitutional, Justice Iredell said:
"[I]t has been the policy of
all the American states, which have, individually, framed their state
constitutions since the revolution, and of the people of the United States,
when they framed the Federal Constitution, to define with precision the objects
of the legislative power, and to restrain its exercise within marked and
settled boundaries. If any act of Congress, or of the Legislature of a state,
violates those constitutional provisions, it is unquestionably void; though, I
admit, that as the authority to declare it void is of a delicate and awful
nature, the Court will never resort to that authority, but in a clear and
urgent case. If, on the other hand, the Legislature of the Union, or the
Legislature of any member of the Union, shall pass a law, within the [381 U.S. 479, 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 the Constitution; in the
other, they roam at will in the limitless [381 U.S. 479, 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." 21 (Footnotes omitted.)
The late Judge Learned Hand, after emphasizing his view that
judges should not use the due process formula suggested in the concurring
opinions today or any other formula like it to invalidate legislation offensive
to their "personal preferences," 22 made the statement,
with which I fully agree, that:
"For myself it would be most
irksome to be ruled by a bevy of Platonic Guardians, even if I [381 U.S. 479, 527] knew
how to choose them, which I assuredly do not." 23
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.
[ Footnote 1 ] The
phrase "right to privacy" appears first to have gained currency from
an article written by Messrs. Warren and (later Mr. Justice) Brandeis in 1890
which urged that States should give some form of tort relief to persons whose
private affairs were exploited by others. The Right to Privacy, 4 Harv. L. Rev.
193. Largely as a result of this article, some States have passed statutes
creating such a cause of action, and in others state courts have done the same
thing by exercising their powers as courts of common law. See generally 41 Am.
Jur. 926-927. Thus the Supreme Court of Georgia, in granting a cause of action
for damages to a man whose picture had been used in a newspaper advertisement
without his consent, said that "A right of privacy in matters purely
private is . . . derived from natural law" and that "The conclusion
reached by us seems to be . . . thoroughly in accord with natural justice, with
the principles of the law of every civilized nation, and especially with the
elastic principles of the common law. . . ." Pavesich v. New England Life
Ins. Co., 122 Ga. 190, 194, 218, 50 S. E. 68, 70, 80. Observing that "the
right of privacy . . . presses for recognition here," today this Court,
which I did not understand to have power to sit as a court of common law, now
appears to be exalting a phrase which Warren and Brandeis used in discussing
grounds for tort relief, to the level of a constitutional rule which prevents
state legislatures from passing any law deemed by this Court to interfere with
"privacy."
[ Footnote 2 ]
Brother HARLAN'S views are spelled out at greater length in his dissenting
opinion in Poe v. Ullman, 367
U.S. 497, 539 -555.
[ Footnote 3 ]
Indeed, Brother WHITE appears to have gone beyond past pronouncements of the
natural law due process theory, which at least said that the Court should
exercise this unlimited power to declare state acts unconstitutional with
"restraint." He now says that, instead of being presumed constitutional
(see Munn v. Illinois, 94
U.S. 113, 123 ; compare Adkins v. Children's Hospital, 261
U.S. 525, 544 ), the statute here "bears a substantial burden of
justification when attacked under the Fourteenth Amendment."
[ Footnote 4 ] A
collection of the catchwords and catch phrases invoked by judges who would
strike down under the Fourteenth Amendment laws which offend their notions of
natural justice would fill many pages. Thus it has been said that this Court
can forbid state action [381 U.S. 479,
512] 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.
[ Footnote 5 ] See
Hand, The Bill of Rights (1958) 70:
"[J]udges are seldom content
merely to annul the particular solution before them; they do not, indeed they
may not, say that taking all things into consideration, the legislators'
solution is too strong for the judicial stomach. On the contrary they wrap up
their veto in a protective veil of adjectives such as `arbitrary,'
`artificial,' `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.
[ Footnote 6 ]
This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power
to invalidate laws on the ground that they exceed [381 U.S. 479, 514] the constitutional power of
Congress or violate some specific prohibition of the Constitution. See also
Fletcher v. Peck, 6 Cranch 87. But the Constitutional Convention did on at
least two occasions reject proposals which would have given the federal
judiciary a part in recommending laws or in vetoing as bad or unwise the
legislation passed by the Congress. Edmund Randolph of Virginia proposed that
the President
". . . and a convenient number
of the National Judiciary, ought to compose a council of revision with
authority to examine every act of the National Legislature before it shall
operate, & every act of a particular Legislature before a Negative thereon
shall be final; and that the dissent of the said Council shall amount to a
rejection, unless the Act of the National Legislature be again passed, or that
of a particular Legislature be again negatived by [original wording illegible]
of the members of each branch." 1 The Records of the Federal Convention of
1787 (Farrand ed. 1911) 21.
In support of a plan of this kind James Wilson of
Pennsylvania argued 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 [381
U.S. 479, 515] 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.
[ Footnote 7 ] In
Meyer, in the very same sentence quoted in part by my Brethren in which he
asserted that the Due Process Clause gave an abstract and inviolable right
"to marry, establish a home and bring up children," Mr. Justice
McReynolds also asserted the heretofore discredited doctrine that the Due
Process Clause prevented States from interfering with "the right of the
individual to contract." 262
U.S., at 399 .
[ Footnote 8 ]
Compare Poe v. Ullman, 367
U.S., at 543 -544 (HARLAN, J., dissenting).
[ Footnote 9 ] The
Court has also said that in view of the Fourteenth Amendment's major purpose of
eliminating state-enforced racial discrimination, this Court will scrutinize
carefully any law embodying a racial classification to make sure that it does
not deny equal protection of the laws. See McLaughlin v. Florida, 379
U.S. 184 .
[ Footnote 10 ]
None of the other cases decided in the past 25 years which Brothers WHITE and
GOLDBERG cite can justly be read as holding that judges have power to use a
natural law due process formula to strike down all state laws which they think
are unwise, dangerous, or irrational. Prince v. Massachusetts, 321
U.S. 158 , upheld a state law forbidding minors from selling publications
on the streets. Kent v. Dulles, 357
U.S. 116 , recognized the power of Congress to restrict travel outside the
country so long as it accorded persons the procedural safeguards of due process
and did not violate any other specific constitutional provision. Schware v.
Board of Bar Examiners, 353
U.S. 232 , held simply that a State could not, consistently with due
process, refuse a lawyer a license to practice law on the basis of a finding
that he was morally unfit when there was no evidence in the record, 353
U.S., at 246 -247, to support such a finding. Compare Thompson v. City of
Louisville, 362
U.S. 199 , in which the Court relied in part on Schware. See also
Konigsberg v. State Bar, 353
U.S. 252 . And Bolling v. Sharpe, 347
U.S. 497 , merely recognized what had been the understanding from the
beginning of the country, an understanding shared by many of the draftsmen of
the Fourteenth Amendment, that the whole Bill of Rights, including the Due
Process Clause of the Fifth Amendment, was a guarantee that all persons would
receive equal treatment under the law. Compare Chambers v. Florida, 309
U.S. 227, 240 -241. With one exception, the other 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.
[ Footnote 11 ]
Compare Adkins v. Children's Hospital, 261
U.S. 525, 568 (Holmes, J., dissenting):
"The earlier decisions upon
the same words [the Due Process Clause] in the Fourteenth Amendment began
within our memory and went no farther than an unpretentious assertion of the
liberty to follow the ordinary callings. Later that innocuous generality was
expanded into the dogma, Liberty of Contract. Contract is not specially
mentioned in the text that we have to construe. It is merely an example of
doing what you want to do, embodied in the word liberty. But pretty much all
law consists in forbidding men to do some things that they want to do, and
contract is no more exempt from law than other acts."
[ Footnote 12 ] 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."
Id., at 798.
[ Footnote 13 ] Of
course one cannot be oblivious to the fact that Mr. Gallup has already
published the results of a poll which he says show that 46% of the people in
this country believe schools should teach about birth control. Washington Post,
May 21, 1965, p. 2, col. 1. I can hardly believe, however, that Brother
GOLDBERG would view 46% of the persons polled as so overwhelming a proportion
that this Court may now rely on it to declare that the Connecticut law
infringes "fundamental" rights, and overrule the long-standing view
of the people of Connecticut expressed through their elected representatives.
[ Footnote 14 ]
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."
[ Footnote 15 ] 1
Annals of Congress 439. See also II Story, Commentaries on the Constitution of
the United States (5th ed. 1891): "This clause was manifestly introduced
to prevent any perverse or ingenious misapplication of the well-known maxim,
that an affirmation in particular cases implies a negation in all others; and,
e converso, that a negation in particular cases implies an affirmation in all
others. The maxim, rightly understood, is perfectly sound and safe; but it has
often been strangely forced from its natural meaning into the support of the
most dangerous political heresies." Id., at 651 (footnote omitted).
[ Footnote 16 ]
Justice Holmes in one of his last dissents, written in reply to Mr. Justice
McReynolds' opinion for the Court in Baldwin v. Missouri, 281
U.S. 586 , solemnly warned against a due process formula apparently
approved by my concurring Brethren today. He said:
"I have not yet adequately
expressed the more than anxiety that I feel at the ever increasing scope given
to the 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 [381 U.S. 479, 522]
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
State may pass." 281
U.S., at 595 . See 2 Holmes-Pollock Letters (Howe ed. 1941) 267-268.
[ Footnote 17 ] 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.
[ Footnote 18 ]
Brother HARLAN, who has consistently stated his belief in the power of courts
to strike down laws which they consider arbitrary or unreasonable, see, e. g.,
Poe v. Ullman, 367
U.S. 497, 539 -555 (dissenting opinion), did not join the Court's opinion
in Ferguson v. Skrupa.
[ Footnote 19 ]
Justice Holmes, dissenting in Tyson, said:
"I think the proper course is
to recognize that a state legislature can do whatever it sees fit to do unless
it is restrained by some express prohibition in the Constitution of the United
States or of the State, and that Courts should be careful not to extend such
prohibitions beyond their obvious meaning by reading into them conceptions of
public policy that the particular Court may happen to entertain." 273
U.S., at 446 .
[ Footnote 20 ]
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.
[ Footnote 21 ]
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 .
[ Footnote 22 ]
Hand, The Bill of Rights (1958) 70. See note 5, supra. See generally id., at
35-45.
[ Footnote 23 ]
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 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. [381 U.S. 479,
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, "[w]e have
returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative
bodies, who are elected to pass laws." Ferguson v. Skrupa, supra, at 730.
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in
any of them to invalidate this Connecticut law, even assuming that all those
Amendments are fully applicable against the States. 1 It has [381 U.S. 479, 529] not
even been argued that this is a law "respecting an establishment of
religion, or prohibiting the free exercise thereof." 2 And surely, unless the
solemn process of constitutional adjudication is to descend to the level of a
play on words, there is not involved here any abridgment of "the freedom
of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances." 3 No soldier has been
quartered in any house. 4 There
has been no search, and no seizure. 5 Nobody has been
compelled to be a witness against himself. 6
The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S
concurring opinion relies heavily upon it. But to say that the Ninth Amendment
has anything to do with this case is to turn somersaults with history. The
Ninth Amendment, like its companion the Tenth, which this Court held
"states but a truism that all is retained which has not been
surrendered," United States v. Darby, 312
U.S. 100, 124 , was framed by James Madison and adopted by the States
simply to make clear that the adoption of the Bill of Rights did not alter the
plan that [381 U.S. 479, 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 annual a law
passed by the elected representatives of the people of the State of Connecticut
would have caused James Madison no little wonder.
What provision of the Constitution, then, does make this state law invalid?
The Court says it is the right of privacy "created by several fundamental
constitutional guarantees." With all deference, I can find no such general
right of privacy in the Bill of Rights, in any other part of the Constitution,
or in any case ever before decided by this Court. 7
At the oral argument in this case we were told that the Connecticut law does
not "conform to current community standards." But it is not the
function of this Court to decide cases on the basis of community standards. We
are here to decide cases "agreeably to the Constitution and laws of the
United States." It is the essence of judicial [381 U.S. 479, 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. 8
[ Footnote 1 ] The
Amendments in question were, as everyone knows, originally adopted as
limitations upon the power of the newly created Federal Government, not as
limitation 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).
[ Footnote 2 ] U.S.
Constitution, Amendment I. To be sure, the injunction contained in the
Connecticut statute coincides with the doctrine of certain religious faiths.
But if that were enough to invalidate a law under the provisions of the First
Amendment relating to religion, then most criminal laws would be invalidated.
See, e. g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James).
[ Footnote 3 ] U.S.
Constitution, Amendment I. If all the appellants had done was to advise people
that they thought the use of contraceptives was desirable, or even to counsel
their use, the appellants would, of course, have a substantial First Amendment
claim. But their activities went far beyond mere advocacy. They prescribed
specific contraceptive devices and furnished patients with the prescribed
contraceptive materials.
[ Footnote 4 ] U.S.
Constitution, Amendment III.
[ Footnote 5 ] U.S.
Constitution, Amendment IV.
[ Footnote 6 ] U.S.
Constitution, Amendment V.
[ Footnote 7 ]
Cases like Shelton v. Tucker, 364
U.S. 479 and Bates v. Little Rock, 361
U.S. 516 , relied upon in the concurring opinions today, dealt with true
First Amendment rights of association and are wholly inapposite here. See also,
e. g., NAACP v. Alabama, 357
U.S. 449 ; Edwards v. South Carolina, 372
U.S. 229 . Our decision in McLaughlin v. Florida, 379
U.S. 184 , is equally far afield. That case held invalid under the Equal
Protection Clause, a state 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.
[ Footnote 8 ] See
Reynolds v. Sims, 377
U.S. 533, 562 . The Connecticut House of Representatives recently passed a bill
(House Bill No. 2462) repealing the birth control law. The State Senate has
apparently not yet acted on the measure, and today is relieved of that
responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p.
1, col. 4, and p. 13, col. 7. [381
U.S. 479, 532]