Forty years ago, in Griswold v. Connecticut, the
Supreme Court of the United States struck down state laws
forbidding the sale, distribution, and use of contraceptives on
the basis of a novel constitutional doctrine known as the “right
to marital privacy.” At the time, the decision appeared to be
After all, Griswold simply allowed married couples to decide
whether to use contraceptives. But the Supreme Court soon transformed
the “right to privacy” (the reference to marriage quickly disappeared)
into a powerful tool for making public policy. In Eisenstadt v.
Baird (1972), the Court changed a right of spouses —
justified in Griswold precisely by reference to the importance of
marriage — into a right of unmarried adults to buy and use
contraceptives. Then, in a move that plunged the United States into a
“culture war,” the Court ruled in Roe v. Wade and Doe
v. Bolton (1973) that this generalized “right to privacy” also
encompassed a woman’s virtually unrestricted right to have an abortion.
No one doubts that there are true privacy rights in the Constitution,
especially in the Fourth Amendment, which protects against unreasonable
searches and seizures and ensures that warrants issue only upon a
showing of probable cause that a crime has been committed. (Indeed,
these rights prevented any kind of aggressive enforcement of the laws
struck down in Griswold.) But the justices in Griswold
produced a non-text-based and generalized right. “Privacy”
functioned as a euphemism for immunity from those public-morals laws
deemed by the justices to reflect benighted moral views.
The privacy decisions that sprang from Griswold have been widely
criticized, and in the last 20 years there have been two notable efforts
to silence and stigmatize that criticism. The first occurred in 1987,
when a coalition of liberal interest groups helped to scotch Judge
Robert Bork’s nomination to the Supreme Court, partly because of Bork’s
misgivings about this novel doctrine. The second occurred in 1992, when
the Supreme Court decided Planned Parenthood v. Casey,
which reaffirmed the “central holding” of Roe v. Wade.
Neither of these efforts succeeded. To this day, millions of Americans
cannot accept Roe v. Wade as constitutionally legitimate.
And thanks to recent developments, public suspicion of the Court’s
“privacy” doctrine is now greater than ever.
In American law schools, decisions such as
Roe, Casey, and Lawrence are widely praised — not
because of their legal merits (which are dubious), but because
they comport with the ideology of “lifestyle liberalism” that
enjoys hegemony there. Consequently, since 1973 most legal
scholars have had no incentive to reassess Griswold.
Two years ago, in Lawrence v. Texas, the Supreme Court
pushed the doctrine into new territory by overruling Bowers v.
Hardwick (1986), a decision that had upheld a state’s authority to
prohibit homosexual sodomy. But in Lawrence, Justice Anthony
Kennedy provocatively remarked that Bowers was wrong the day it
was decided. Criticism of the ruling in Lawrence intensified a
few months later when the supreme judicial court of Massachusetts
promulgated a right to same-sex marriage in that state. In Goodridge
v. Department of Public Health (2003), the court cited
Lawrence to support this newly minted right. It evidently mattered
little to these judges that the majority opinion in Lawrence
expressly denied that the case involved the issue of marriage.
As the courts push the “privacy” doctrine further and further, public
criticism keeps pace. Griswold, however, has received little
attention. Even harsh critics of Roe and Lawrence are
loath to say that Griswold was wrongly decided. Most of those who
worry about the judicial abuse of the right to privacy do not want or
expect the Supreme Court to revisit the case. Yet the cogency of any
serious critique of “privacy” may depend on the willingness to reexamine
the roots of the doctrine in Griswold.
Consider abortion. Conceding the correctness of Griswold gives a
huge advantage to the defenders of Roe and Casey. They
benefit because so many influential jurists and scholars say that the
“inner logic” of the contraception cases must yield something like
Roe. Outsiders may regard this argument with skepticism, but its
purpose is clear: It tries to smooth the road from Griswold to
Eisenstadt to Roe — and beyond.
But one point is rarely mentioned. Even though Griswold was less
consequential than Roe, the two cases suffer from similar flaws.
The many shortcomings of Griswold are less well known, because
the case is enveloped in myths.
In American law schools, decisions such as Roe, Casey, and
Lawrence are widely praised — not because of their legal merits
(which are dubious), but because they comport with the ideology of
“lifestyle liberalism” that enjoys hegemony there. Consequently, since
1973 most legal scholars have had no incentive to reassess Griswold.
But if Griswold was wrongly decided, Roe — intellectually
shaky on any account — loses even the meager jurisprudential support on
which it rests.
The lack of scholarly engagement with Griswold partly explains
the myths now surrounding it. Exposing those myths further undermines
the arguments for a generalized right to privacy.
Myth #1: The Connecticut laws were “purposeless restraints,” serving no
Supreme Court justice David Souter is one of several jurists to make
this assertion. The confusion arises from Griswold, whose
majority opinion nowhere identifies a legislative purpose.
For anyone who cares to look, the purposes of the laws are apparent in
the record of the case: Connecticut sought to promote marital fidelity
and stable families by discouraging attempts to avoid the possible
consequences of non-marital sexual relations through the use of
contraceptives. Prominent judges in Connecticut recognized the
legitimacy of these purposes, and the state’s supreme court upheld the
laws against several constitutional challenges from 1940 to 1964.
Did Connecticut’s policy go too far in its efforts to promote marital
fidelity? Many thought so. But roughly 30 states regulated
contraceptives in the early 1960s, and the uniqueness of Connecticut’s
statutory scheme was long recognized as its constitutional prerogative.
Myth #2: The decision in
Griswold rested on some overarching or time-honored constitutional
Ostensibly, that principle was “privacy.” But the Griswold
doctrine would have been unrecognizable to the Supreme Court even a few
years earlier. In Gardner v. Massachusetts (1938), for
example, the Court dismissed a similar challenge, noting that the suit
failed to present “a substantial federal question.”
In the majority opinion in Griswold, Justice William O. Douglas
referred — as comically metaphysical as it sounds — to “penumbras formed
by emanations” of specific constitutional guarantees as the source of
the new right. He had nothing else to go on.
Other jurists have since argued that the right to marital privacy could
be derived from cases before 1965 involving the rights of parents to
direct the upbringing of their children. But the cases they cite have
little in common with Griswold.
What, then, was the operative “principle” in Griswold? Nothing
other than the Court’s desire to place its imprimatur on “enlightened”
views about human sexuality. This project continued beyond Griswold
and culminated in Lawrence, where the Court essentially said that
all adults in America have a right to engage in consenting, non-marital
sexual relations. Consistently missing from the Court’s discourse on
privacy, however, has been any discussion of parental duties, public
health, and the welfare of children.
Myth #3: No sensible jurist or commentator
would say that the case was wrongly decided.
In fact, two widely respected and sensible jurists, Justices Hugo Black
and Potter Stewart, dissented in Griswold. Black was a noted
liberal and, like Stewart, recorded his opposition to Connecticut’s
policy as a political matter. Yet both jurists insisted that the policy
was a valid exercise of the state’s power to promote public health,
safety, and morals.
To Justices Black and Stewart, the “right to privacy” cloaked a naked
policy preference. Justices in the majority were, without constitutional
warrant, substituting their own judgments for those of the elected
representatives in Connecticut. This, according to jurists across the
political spectrum, is precisely what had brought shame on the Court
during the “Lochner era,” from roughly 1890 to 1937, when in the name of
an unwritten “liberty of contract” the justices invalidated state
social-welfare and worker-protection laws. But the crucial distinction
underscored by Black and Stewart between the desirability or justice of
a policy and the state’s constitutional authority to enact it lost much
of its currency as the right to privacy expanded.
Myth #4: The legislation invalidated in
Griswold might be widely used again
if the case was overturned.
This line was often repeated in 1987 when Robert Bork was nominated to
the Supreme Court. Meant to frighten ordinary citizens who approve of
contraceptive use, this scenario simply fails to acknowledge changes in
public opinion since 1965. Laws like those struck down in Griswold
clearly have little chance of passing today even in the most
Myth #5: The widespread use of contraceptives
in the United States today provides a post hoc justification for
When Griswold was decided, adults could buy and use
contraceptives in almost every state (despite various regulations on
their sale and distribution). Given the social ferment of the 1960s and
’70s, the Connecticut policy would sooner or later have been modified.
But the ubiquity of contraceptives in America today does not justify
Griswold — any more than the widespread use of abortion justifies
It might seem fanciful to say that the idea of a generalized
constitutional right to “privacy” could now be repudiated; many believe
that it has become an integral part of American law. But no one should
accept this conclusion. The struggle against usurpations by the Supreme
Court committed under the pretext of giving effect to unwritten
constitutional rights has a historical precedent. As noted, from roughly
1890 to 1937, the Supreme Court invalidated worker-protection and
social-welfare legislation on the basis of an unenumerated right to
“liberty of contract.” After much criticism, the Court relented and in
1937 announced that it would defer to legislative judgment where
policies did not run afoul of constitutional principles. They promised,
in short, to halt the practice of reading into the Constitution their
own personal judgments about social and economic policy and the morality
of economic relations.
The Supreme Court will not revisit the question of state or federal laws
banning contraceptives. Yet the Court can and should find an occasion to
admit that the manipulation of constitutional law that began with
Griswold has been a colossal mistake. Such an admission would hardly
be radical or, as we have observed, unprecedented. The Court’s
confession of error in repudiating its Griswold jurisprudence,
far from harming its reputation, would enhance its prestige. We have no
doubt that the same good effect would redound to the Court if the
justices were candidly to speak the truth: The idea of a generalized
right to privacy floating in penumbras formed by emanations was a pure
judicial invention — one designed to license the judicial usurpation of
democratic legislative authority.
Robert P. George & David L. Tubbs. "The Bad Decision That Started It
All." National Review (July 18, 2005): 39-40.