Saturday, February 18, 2012

Revisiting Griswold v. Connecticut – Because Its Statement of Freedom is Something That Seems to be Forgotten – Particularly by Mr. Santorum

Limited Government Involvement In People’s Private Lives Should be a Conservative Cause – Why Isn’t It

            "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."  -  Connecticut Law in the 1960's.

As the culture wars have supplanted, at least temporarily the war on the poor and the economic wars in the current campaign, it seems necessary to go back to one of the source documents in the culture wars, the Supreme Court decision in Griswold v. Connecticut.  Republican Presidential hopeful Rick Santorum has made a part of his campaign the idea that the case was decided incorrectly.

Tapper asked, “Democrats say that one of the reasons you lost that year was because you are, in their view, out of the mainstream and they talk about the Griswold v. Connecticut case--that was an issue that Casey used against you--about whether or not a state has the right to make a law against married couples using contraceptives. Is that something you’re at all concerned about?

“The state has a right to do that,” said Santorum. “I have never questioned that the state has a right to do that. It is not a constitutional right. The state has the right to pass whatever statues they have.”

“That is the thing I have said about the activism of the Supreme Court--they are creating rights, and they should be left up to the people to decide,” he added.

So what was this case all about?  Well it was a decision by the Supreme Court on this law in Connecticut.

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.

That’s right, in 1965 (yes, 1965 not 1865 or 1765) it was illegal to use birth control pills or even condoms in the state of Connecticut.  Do so and you could go to jail for a year.  Here is Justice Douglas stating his reasons for declaring such a vile and foul law Unconstitutional.  It is indeed an eloquent defense of Conservative doctrine,  that the government may not invade the privacy of the individual and the family without just cause.

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 [p485] 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 an 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 [p486] very idea is repulsive to the notions of privacy surrounding the marriage relationship. (emphasis added)

And there is also this statement that everyone should know and support\

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.

Gosh, doesn’t that sound a lot like something Mr. Santorum would agree with (and it doesn’t even mention same sex marriage!). 

The dissent by Justice Stewart goes to the core of the arguments by Conservatives, that the rights granted to Connecticut residents in Griswold are not enumerated in the Constitution,

"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"

But if there is no right to privacy from government interference in the lives of people where government has no basis for conducting that interference, what does freedom basically means?  The opinion in Griswold ends with this quote from a much earlier case, words which effectively destroy the position of people like Mr. Santorum who would allow the use of government power to force their positions onto individuals who do not share those positions.

"The principles laid down in this opinion 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 employees of the sanctity of a man's home and the privacies of life.  (emphasis added)

It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offence -- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment."

There Mr. Santorum, is your answer.  That is why if you were President you cannot Constitutionally inflict your religious and moral views upon the nation and why you cannot use the power of government, any government to do so.

You have no right to do so sir, you have no right.


  1. Excellent, TDPE! As usual, you so simply and with precision, render a cause, a belief, a movement, of those who state, with almost religions fervor, their reverence for the constitution, to be but, the vile, contradictory selfish motive it really is.

  2. I wish Douglas had just argued that his decision was necessary given "Boyd," and left his "penumbrations" in the garbage can

  3. Good writeup. Griswold vs CT was a 7-2 decision. Justice Stewart in fact called the law 'uncommonly silly' but constitutional. He changed his mind on the right to privacy 8 years later on Roe v Wade. No one talks about that.

    The Supreme Court protects Americans from populist State legislatures that want to attack the liberties of minorities to score political points with the majority. If Santorum is given the power to nominate judges, women, gays, Latinos, blacks and Muslims will attacked in every Red State.