-Submitted by David Drumm (Nal), Guest Blogger
Considering the recent and ongoing opposition of many Republicans to contraception, a review of this landmark 7-2 Supreme Court decision was conceived. The case involved a Connecticut law that prohibited the use of contraceptives by married couples. The Appellants were Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a licensed physician and professor at the Yale Medical School, who served as Medical Director for the League at its Center in New Haven.
The appellants were found guilty as accessories and fined $100 each. An intermediate appeals court and the supreme Connecticut court affirmed.
The Connecticut statute in question had been enacted in 1879 (and originally written by P.T. Barnum, of circus fame) 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.
[and]
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 Court held that the Connecticut statute violates the right of marital privacy.
In writing for the majority, Justice Douglas notes many rights, and their associated Supreme Court cases, that aren’t enumerated in the Constitution or the Bill of Rights. The freedom of speech and press also includes the freedom to read, the freedom to distribute, the right to receive, and freedom of thought.
The freedom of association, the right to educate one’s children as one chooses, the choice of private or public schooling for your children, freedom to read, all “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
Justice Douglas goes on to reference aspects of the First, Third, Fourth, Fifth, and Ninth Amendments whose penumbra create a zone of privacy. In Snyder v. Massachusetts, Justice Cardozo wrote that there are “some principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The right to privacy is such a fundamental right. So fundamental as not to require enumeration.
The dissenters, even though they found the Connecticut law offensive and silly, could not find any constitutional provision that would prevent the government from abridging the “privacy” of individuals. Justice Black wrote: “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.”
This is the very attitude that James Madison warned about in addressing the Ninth Amendment:
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.
If the Ninth Amendment has any effect at all, it is to protect the most basic and fundamental rights not explicitly guaranteed in the other eight.
H/T: Slate, Austin Cline, University of Missouri.
I appreciate the information Bob (and the correct amendment), but my questions were intended to raise points related to how the Court has viewed the issue in the 200 plus years since ratification. I am not as sophisticated as some of the attorneys that comment here, but to me, there appear to be inconsistencies with respect to our privacy (and other) rights.
Henry’s post provides an example: a woman may have an abortion or use contraception, but, based on federal law, she may not be allowed to specify the “particular drugs” she wants to use for contraception. Similarly, a woman with cervical cancer will violate federal law if she uses the “wrong” drug in her treatment regime.
Another example is cruel and unusual punishment. As I understand it, in just last year or so, the Court ruled that that definition is subject to change based on the states’ policies with respect to capital punishment. Did the 8th A change? Did the 8th A create new rights? Did the Court create new rights? Were the executions before this decision a usurpation of rights or the result of tyranny?
The Madison quotation is irrelevant, because he was talking about the federal government, and the contraception statute at issue was a state law. States have “police power,” which the federal government does not, and can do anything that the U.S. Constitution does not prohibit them from doing. But, as Justice Douglas wrote, the U.S. Constitution may implicitly prohibit something. Governments exist for the purpose of regulating public matters, not private matters. It should go without saying that the government prohibit anyone from using contraceptives, engaging in particular sex acts, having abortions, eating particular foods, taking particular drugs — in short, interfering with our control over our own bodies.
mahtso,
“How and when are these rights defined? The word retained shows that it is limited to those in existence on adoption.”
They are retained FIRST during the creation of the social contract; primarily by the distinction between alienable and inalienable rights. The exercise of power over an alienable right is termed ‘usurpation’ and the exercise of power over an inalienable right is termed ‘tyranny.’ This is what prevents the social contract from becoming illusory.
Those rights are further retained by the principle of the people “specifically enumerating powers” to their government; and the states doing likewise to create the federal constitution.
You need to review Locke’s Second Treatise, the Declaration of Independence and the federalist papers.
mahtso,
First of all, you’re talking about the third amendment.
Second, we do not base our base our government on the theory of the abridgment of powers of a feudal sovereign (or king).
This republic was founded upon the social contract.
Finally, according to the basic structure of the social contract, all power begins with the people, not a King, and is specifically delegated to a sovereign via a constitution.
Rights confer power; not vice versa.
Thus Hamilton wrote:
“I go further, and affirm that bills of rights, in the sense and to 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 not granted; and, on this very account, would afford a colorable 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 pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
http://www.constitution.org/fed/federa84.htm
To say that the constitution confers any rights whatsoever is tantamount to declaring that the earth is flat.
“If the Ninth Amendment has any effect at all, it is to protect the most basic and fundamental rights not explicitly guaranteed in the other eight.”
How and when are these rights defined? The word retained shows that it is limited to those in existence on adoption. Under a natural rights theory, I assume that list would never change. But if it is that straightforward why did the Roe Court need to use penumbras?
I’m not so sure that Bob, Esq. is correct. I think the Constitution did convey or create rights. For example, correct me if I am wrong, but the 4th A created the right to keep the government from quartering troops in your home. This was not a right under British rule.
What the 9th A did was to make explicit that unnamed existing rights were retained (i.e., not being waived by failure to list.) So the question is: Assuming the dissent was correct and there is no right of privacy in the Constitution, was there a right to privacy before that?
Madison is simply referring to the objections raised in Fed 84 written by Hamilton.
On its face, the Ninth is nothing more than a tautology intended to remind the bug-wits about the order of operations per interpreting the constitution.
That James Madison was a sharp fellow.
Rights confer power; not vice versa.
To suggest that we enjoy a right to privacy thanks to the penumbras created by a bill of rights reverses the above equation.
We do not derive our rights from the constitution; the constitution does not confer any rights whatsoever. To say otherwise while pointing to the Ninth is to ignore the very purpose for which it was drafted. See Federalist 84.
The plurality was wrong as a matter of process and the dissent was wrong for failing to apply their analysis correctly to the right of privacy existing before the constitution.
Nal,
That is one of the single and greatest cases that people take for granted…. Its not really about that right its about the right to be left alone and to chose what one wants to do with their own destiny….without government intervention…. this is one of those cases where “Parental” choice of medical treatment comes into play… I am torn between saving the child and leaving the parents to make the proper decision…. exactly what is the balance…. I do not know….but you cannot have the government stepping in every aspect of an individuals life…