June 7, 2013
On January 22, 1973, the Supreme Court decided Roe v. Wade, invalidating criminal abortion bans across the country and instantly changing the face of one front in the nation’s “culture war.”
Over 30 years later, on June 26, 2003, the Supreme Court decided Lawrence v. Texas, striking down the nation’s criminal sodomy bans as unconstitutional and scoring a major victory for LGBT rights.
What do these two cases have in common besides their respective historic nature?
They are both products of the new individual rights established by the Supreme Court in Griswold v. Connecticut, decided on June 7, 1965.
Griswold may be most famously remembered, especially in law school classrooms, as striking down a state ban on contraceptives. But the ruling did not establish a new individual right to contraceptives per se.
Instead, the constitutional rights created by Griswold that made possible both Roe and Lawrence – and that have arguably had a larger impact on constitutional jurisprudence at large – is the right to privacy.
In recognizing this newfound right to privacy, the Griswold Court, as mentioned earlier, struck down Connecticut’s state law banning the use of contraceptives.
This law penalized anyone “who uses any drug, medicinal article or instrument for the purpose of preventing conception.”
Another section of the criminal code sanctioned anyone who “assists, abets, counsels, causes, hires or commands another to commit any offense,” meaning doctors and clinics could be prosecuted for providing contraceptives to their patients.
The Court relied on several different provisions of the Constitution in fashioning this new privacy right.
First, the Court admitted that the Constitution contained no explicit right to privacy. However, the Court also noted that the Constitution also contained no specific right to educate a child in a school of the parents’ choice (whether public or private or parochial), yet the Court had previously recognized that right as protected by the Constitution – as it had done with many others.
These rights not specifically named by the Constitution are part of the “penumbra” of rights that are named. These “penumbras” are “formed by emanations from those [specified] guarantees” and help “give [enumerated rights] life and substance.”
According to the Griswold Court, “without those peripheral rights the specific rights would be less secure.”
This penumbral right to privacy rested within the periphery of not one, but five of the Bill of Rights.
The First Amendment lends to this right in its freedom of association recognized by the Supreme Court in 1958’s NAACP v. Alabama, in which protected the “freedom to associate and privacy in one’s associations.”
The Court found another “facet” of the constitutional right to privacy in the Third Amendment’s prohibition against the quartering of soldiers “in any house” in time of peace without the owner’s consent.
The Fourth Amendment’s explicit guarantee of “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” provided the Court with yet another component.
The Court noted that the Fifth Amendment’s “Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.”
Finally, the Court interpreted the Ninth Amendment’s statement, “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” 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.”
This right to privacy established by Griswold initially only applied to the marital relationship; it wasn’t until 1972’s Eisenstadt v. Baird that the Court clarified this right to privacy to be an individual right that applied to unmarried persons just the same.
Today, this constitutional right to privacy is a jurisprudential mainstay to all but the staunchest Originalists (such as Justice Thomas).
Although this right was invoked to strike down bans on contraceptives and sodomy, the outer boundaries of its reach have yet to be established.
It may be celebrating its 48th anniversary, but we’ll be looking to future cases to develop its full implications.