“Penumbras, Formed By Emanations”: The Truth About The 1965 "Zones Of Privacy" Case Of Griswold v. Connecticut That Created A General Right To Privacy

The 1965 decision of Griswold v. Connecticut represents at its core inexcusable judicial activism and is truly one of the greatest representations of what is wrong with the modern Supreme Court. The challenged law banning the use of contraception had been on the books in Connecticut since 1879 (under the rationale that this prevents adulterous relationships). For eighty-six years no one thought it was unconstitutional. The reason is quite obvious. The Constitution is completely silent on the position a State must take on the use of contraceptives. Along comes the opinion of Justice Douglas famously declaring that the Bill of Rights has "penumbras, formed by emanations from those guarantees that help give them life and substance," and that the Bill of Rights therefore creates "zones of privacy" which demand this State law be overturned. This line is deservedly mocked by Justice Thomas in the form of a sign displayed in his office saying "Please do not emanate into the penumbra." Thomas says that “I’ve tried to steadfastly avoid doing that.” The reason to avoid “doing that” is the Supreme Court then becomes nothing more than the highest institution of outcome-driven policymaking without regard for any basis of that outcome in the Constitution itself. That’s a far cry from the form of judicial review laid out in Marbury v. Madison. Yet seven out of nine Justices had no problem emanating into penumbras.

The dissents of Justices Black and Stewart do a fine job explaining the major flaws in the opinions of the majority of the Court. Justice Stewart was correct when he observed that "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. But the [majority of the Supreme] Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law." As Justice Black similiarly wrote in dissent: "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... The [majority of the Supreme] 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... 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." Finding a law asinine or desiring a particular outcome to a case cannot be the basis of declaring whether a law is in accord with the Constitution. If I were a member of the Connecticut State legislature I would vote against this law. If I were a member of the Supreme Court I could not vote against this law. A specific provision of the Constitution must be violated for a law to be unconstitutional, and none is violated in this case. To think otherwise is nothing short of believing that the whims of five hotshot black-robed lawyers can substitute for our elected representatives and replace our written Constitution itself.

Furthermore, desirable outcomes in one case lay the groundwork as judicial precedent for undesirable unforeseen outcomes in a later case. The majority wrapped its whole decision around the privacy zone that is the “sacred precincts of marital bedrooms,” but the progeny of what began with Griswold extends far beyond that sacred precinct and now has absolutely no relation to it. And unlike with Darwin’s evolution, a precedent set forth in the “living Constitution” can “evolve” into an entirely unimagined new species of rulings quite quickly. The most obvious example of this is Roe v. Wade a mere eight years later which relying on Griswold declared there was a national right to abortion. But that example is too easy.

One should really look no further than one of the opinions within Griswold itself. Justice Goldberg’s concurrence declares, “The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication… [I]t should be said of the Court's holding today that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct.” The very case that invents out of thin air the general right to privacy declares laws against adultery and fornication to be constitutional beyond doubt! He then even quotes “my Brother Harlan” who “so well stated in his dissenting opinion in Poe v. Ullman” that “adultery, homosexuality and the like are sexual intimacies which the State forbids” and has every right to forbid as the State has “the power either to forbid extra-marital sexuality or to say who may marry.” I wonder why all those who find Griswold to be a landmark decision in the most positive sense never seem to quote this portion of Goldberg’s important concurrence? It is all too clear that the “zones of privacy” are being constantly and arbitrarily redefined by a Supreme Court whose rulings have absolutely no resemblance to Goldberg’s Griswold. For example, the Supreme Court in Lawrence v. Texas in 2003 declared there was a Constitutional right to sodomy, and a federal judge in San Francisco in 2010 has recently ruled that the Constitution demands gay marriage nationwide.

Judge Robert Bork was exactly right when he candidly expressed his views before the Senate Judiciary Committee during his nomination hearings in 1987 (candidly expressing views being something no contemporary Supreme Court nominee would dare engage in for fear of being “Borked”): "My objection [to Griswold] is simply to the undefined nature of what the Court did there, and I have tried to illustrate that for you by asking you whether you would vote for a statute that said nothing more than that 'everybody has a right of privacy and the courts shall enforce it.' I don't think you would." As he explained in his 1990 book The Tempting of America: “[T]he protection of marriage was not the point in Griswold. The creation of a new device for judicial power to remake the Constitution was the point… The truth is that ‘privacy’ will turn out to protect those activities that enough Justices to form a majority think ought to be protected and not activity with which they have little sympathy.” What is clear is that the Constitution itself is rather beside the point.

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