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Constitutional Opinions
Mrs. Griswold’s Ghost
One can only imagine what Potter Stewart would have made of Campaign 2012.
It looks like the presidential election is going to be haunted by the ghost of Estelle Griswold. She was the director of Planned Parenthood in Connecticut when she was fined $100 for violating laws of the Nutmeg State against disseminating contraceptives. It was in her appeal that the Supreme Court discovered, among the penumbras, emanations, and shadows in the Constitution, a right to privacy. Nearly 50 years later, it seems the questions she raised are again at the center of our political debate—not because anyone wants to ban contraception, but because the government wants everyone to pay for it.
These questions burst into the presidential debates in January at Saint Anselm College in Manchester, New Hampshire. ABC’s moderator, George Stephanopoulos, kept pressing Mitt Romney to explain whether he thinks states have the right to outlaw contraception. “Or,” Stephanopoulos asked, “is that trumped by a constitutional right to privacy?” Mr. Romney tried to dodge the question, and complained it was silly and hypothetical, given that no state wants to ban contraception. The exchange went on until Mr. Romney suggested referring the matter to “our constitutionalist here”—and gestured to Ron Paul.
In an editorial at the time, the New York Sun suggested the governor should have confronted the substance of the question, even if Mr. Stephanopoulos’s intent was to make trouble. Mr. Romney is, after all, a graduate of Harvard Law School, and he had to know all about Mrs. Griswold.
The court’s opinion, written by one of the most radical judges ever to sit on the bench, William O. Douglas, declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Connecticut’s ban on contraception, the official case summary says, violated “the right of marital privacy which is written in the penumbra of specific guarantees of the Bill of Rights.”
The right to privacy, established in a seven-to-two decision, has proven hard to assail. Connecticut was defeated even though its people had been exercising the power to regulate birth control for more than a century. In and of itself, that doesn’t make the court’s ruling wrong. It does put a premium on parsing the dissent, which was written by one of the plainest-spoken judges on the court, Potter Stewart.
Stewart was a moderate Republican from Ohio who had once been the youngest judge on the federal bench. President Eisenhower used a recess appointment to raise him to the high court, though he was later confirmed by a wide margin. He was a common-sense man. It was Stewart who uttered the formulation that although he mightn’t be able to define pornography, he knew it when he saw it. When it came to Mrs. Griswold and the question of contraceptives, he delivered a dissent that, even though it was joined only by Justice Hugo Black, is remembered as a classic.
Stewart quoted an earlier case about how “courts do not substitute their social and economic beliefs for the judgment of legislative bodies…” He reckoned the law that had snared Mrs. Griswold was “uncommonly silly,” but he mocked the notion that the First, Third, Fourth, and Fifth Amendments, which were cited by the majority, prohibited the Connecticut legislature from regulating birth control. He noted that no one even argued Connecticut’s was a law respecting an establishment of religion or prohibiting the free exercise thereof.
Nor, he wrote, “unless the solemn process of constitutional adjudication is to descend to the level of a play on words,” was there any abridgement of the rights to speech, the press, peaceable assembly, or petition. He seemed astounded that one of the constitutional articles in which the majority found a right to privacy affecting birth control was the Third Amendment, which prohibits the quartering of soldiers in a private home in time of peace without the owner’s consent. “No soldier,” he exclaimed in his dissent, “has been quartered in any house.”
“What provision of the Constitution, then, does make this state law invalid?” Stewart demanded. “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. At the oral argument in this case, we were told that the Connecticut law does not ‘conform to current community standards.’ But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases ‘agreeably to the Constitution and laws of the United States.’”
Finally, Stewart noted, it was “the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.” He remarked that powers not delegated to the federal government by the Constitution are reserved to the states and to the people. “If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.”
How all this might have gone had the court left Connecticut to deal with the question is something to think about right now. The right to privacy the court discovered in Griswold was one of the bases on which Norma McCorvey, being heard as Jane Roe, pressed her case against the district attorney of Dallas County, Henry Wade, in the appeal that became Roe v. Wade. Instead of resolving the great conflict, Griswold has extended it for decades. We have reached a point where the question is no longer whether contraception is protected by a right to privacy, but whether the government may require private companies to pay for it, whether they want to or not.
One can only imagine what Potter Stewart would have made of all this. Having been outvoted in Griswold, he fell in with the majority in Roe v. Wade. He stepped down from the high bench in the first summer of the Reagan administration and was succeeded by Justice Sandra Day O’Connor. He died in 1985, four years after Mrs. Griswold herself passed away in Florida.
It may be that by the time this column is published, Senator Santorum will have dropped out of the Republican primaries, and the social issues of which he is a tribune will have abated. But it may also be that Mrs. Griswold’s ghost will flit in and out of the courts for some time, along with the spirit of Potter Stewart.
About the Author
Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen’s Constitution: An Annotated Guide (Basic Books).
Jack in Wi.| 5.15.12 @ 6:32AM
Mr Lipsky does a pretty good job on Griswald. It is the linchpin of all that has followed. The unelected courts now regulate most social policy, not the elected legislatures of the people. The country's cultural and moral decline begins right there.
Pseudo Intellectual | 5.15.12 @ 7:32AM
William O. Douglas, declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Mr. Douglas ought to be hung for that statement, if he wasn't already in hell.
Albert Constantine Jr.| 5.15.12 @ 8:23AM
If hell is a personal one, as opposed to the lake of fire and brimstone, Douglas' is the one where he remains trapped in his post stroke body, unable to chase young coeds, climb his mountains, or express his "brilliance".
Appleby| 5.15.12 @ 7:24AM
Well written and relective of the arguments that were going on in what used to be called "bull sessions" at universities all over America in the Sixties, when people still studied the Founding Documents and debate had not yet descended wholly to cries of "Whaaaaaaaaaaaaaaaa!"
Barky K. Nine | 5.15.12 @ 7:29AM
Romney gave a really good answer when Georgie kept hounding him: "I don't know if the states can ban contraception. I do know that none of them intend to." Santorum originally brought up the contraception issue, and the Democrats jumped on that as a winning issue, but Georgie was unable to tie Romney to that issue. Well done, Gov.Romney.
Wethal| 5.15.12 @ 8:03AM
Romney is not a graduate of Harvard Law School; He got an MBA from the Harvard School of Business.
Stormzeye| 5.15.12 @ 8:16AM
You are wrong Wethal.
Mitt Romney not only has an MBA from Harvard, he also has a JD from Harvard. Remarkably, he did a combined program in 4 years after graduating from Brigham Young in 1971. A truly amazing feat of intellectual depth coupled with great discipline.
Purple Lips| 5.15.12 @ 8:10AM
I believe Mr Lipsky left out more of the story. Conneticut kept this old Blue Law (the ban on contraception) on the books for no other reason than to make a statement of moral principle. It was written in the 1880s, and Robert Bork (then a Yale Law professor) could find no instance of it ever being enforced. Yale Law assisted Mrs Griswold in her attempt to reach social and political fame, by encouraging a local Conneticut policeman to arrest her for purchasing contraception. It was all a sham. Once arrested, a complaint was issued in federal court, and the case was fast-tracked to the SCOTUS. One could argue that the entire affaire was orchastrated from Planned Parenthood, to Yale Law, and even the judges themselves.
The one mistake O'Douglas did make in his opinion was to limit this new found "privacy" to married couples. But, have no fear, in the 1972 Eisdenstadt ruling, SCOTUS discovered, hidden in the deep reaches of our Constitution the right to privacy (to buy birth control) extended to unmarried couples as well! And in more recent years, SCOTUS again found another penumbra enamating from Griswold, the right to buggery!
Albert Constantine Jr.| 5.15.12 @ 8:20AM
Yes, the sharp grade in this slippery slope was carved with penumbras.
DaveS| 5.15.12 @ 9:43PM
Do you even know what a 'blue law' is?
R Martin| 5.15.12 @ 9:02AM
Apart from the specifics of the Griswold case, Mr. Lipsky highlights the dangers of the legal cornerstone, judicial precedence.
Judicial precedence seems a lot like the cow path theory of business management. That theory relates certain management practices to the behavior of cows returning to the barn each afternoon. The cows tend to tread the same route because that’s the way cows have always walked home, even though the path may not be the most direct or fastest track to the meal which awaits.
Judicial precedence seems a lot like that. Even though some cases pass with the barest majority and are clearly at odds with the spirit of the Constitution (Kelo/New London eminent domain) while others rely on a contrived play on words, we become forever stuck with the biased political views of justices such as Ginsburg, Kagan or Douglas as subsequent decisions rely on previous ones. Seems an odd way to do business.
Anthony| 5.15.12 @ 3:20PM
You have a profound ignorence of judicial precedence R Martin, otherwise known as "Stare Decisis". "Stare Decisis" is defined as a policy of the courts to stand by precedent and not disturb settled points of law.
The obvious purpose of "Stare Decisis" was to have consistancy in judicial decisions rooted in honest Constitutional interpretation, rather than the partisan political process the law has devolved into.
Obviously some cases beg to be reversed, Dred Scott, Koramatsu, because we humans are frail and imperfect.
That said, the spiraling out of control of our culture coincides with the politicization of the law. In other words, from order to CHAOS.
R Martin| 5.15.12 @ 9:19PM
I guess it's good to be profound about something.
However, you support my point that your cherished consistancy is increasingly based on politicized law. I'm not objecting to Stare Decisis based on honest constitutional intrepretation; I'm objecting to building on a legal foundation based on partisan politics. Isn't that what Mr. Lipsky was pointing out?
Crassus| 5.15.12 @ 9:52AM
Potter Stewart was in reality a jealous hack. Irate that Richard Nixon nominated Warren Burger for Chief Justice of the Supreme Court instead of elevating him he later became Bob Woodward's chief source for "The Brethren", which trashed the Warren Court unmercifully.
Crassus| 5.15.12 @ 9:53AM
Oops, I meant to say Burger Court.
Purple Lips| 5.15.12 @ 10:27AM
Good point. If you read his Wiki entry, he more or less "grew in office". As time went by, he certainly became more of a judicial activist. But, at least he did everyone a favor by retiring at age 66.
H Abdullah Shabazz| 5.15.12 @ 11:55AM
Stewart has the slaughter of 55 million unborn children to forever condemn his name.
Along with those who put these barabarian tyrants in power: FDR Truman Ike Kennedy LBJ Nixon Reagan Bush Clinton and Obama. Enablers of mass murder all.
May God give them forgiveness
They sure need it.
Purple Lips| 5.15.12 @ 1:59PM
You forgot Harrison. I'm sure his 30 days as President were days of horror.
Vern Crisler | 5.15.12 @ 2:55PM
Huh, the abortion decision was after the presidencies of FDR, Truman, Ike, Kennedy, and LBJ. And if you regard Reagan as a mass murderer, you are a nutcase, probably a Paulista or a loony Lew Rockwell type.
Pseudo Intellectual | 5.16.12 @ 1:20AM
Reagan nominated Sandy O'Connor, who voted for abortion, so the writer is correct.
Bush 1 nominated Souter, another abortionist.
Ford- pro-abortion Stevens
Clinton-Ginsburg & Breyer: 2 pro-abortion Jews
Nixon: Blackmun & Burger both voted for Roe.
Strange how the Democrats never nominate a judge who turns out to be pro-life, but Republican presidents nominate pro-abortionists: O'Connor,
Souter, Stevens, Burger, Blackmun.
No wonder we're in trouble.
cicero| 5.15.12 @ 3:37PM
To repeat, our judicial system has done more damage to our culture and civilization that any foreigne enemy or other governmental institution. Unless we get some kind of control on it, it will destroy us as a nation. Anyone who thinks there is equal judtice under the law, or equal standing before the courts has not been paying attention.You need only follow the recent and current Federal prosecutions to see how far over the edge we have gone. Skooter Libby is prosecuted, but Eric Holder won't even be made to answer a congressional subpoena.
DaveS| 5.15.12 @ 9:53PM
Can penumbras, in turn, have penumbras? Seven out of nine on the SCOTUS would probably agree (1966). If yes, then the right to privacy could lead eventually to a right to purple lips.
POST American| 5.17.12 @ 1:42AM
---Great piece!
NOW, speaking of the Constitution
and the USURPING and destruction
thereof --
could we PLEASE get some quality light
on sitting Justice Ginzburg's act of
deliberate TREASON with her, mere
months ago, public DISS of the U.S.
Constitution while visiting the 'RA'--dick--
ALL' ised capstone mecca ---Egypt?
In this, the 11th hour of the CFR---RED
China handover and American takedown
op ---it would be sort of be 'nice' to pretend
you still care. . .
BTW ------BILDERBERG, the very pow wow
central for the RED China handover and
Global CULL op ---is meeting at the
Westfiedl Marriot Hotel near Dulles
airport in DC next week.
Capstone USURY, 'Glow--ballists'
and EUGENISTS all toegther to clink
glasses and mull their ever beloved,
NEVER ----EVER changing 'age---enda'.
-----------BE THERE!
------------------OR STAY ----A SLAVE!
POST American| 5.17.12 @ 1:42AM
---Great piece!
NOW, speaking of the Constitution
and the USURPING and destruction
thereof --
could we PLEASE get some quality light
on sitting Justice Ginzburg's act of
deliberate TREASON with her, mere
months ago, public DISS of the U.S.
Constitution while visiting the 'RA'--dick--
ALL' ised capstone mecca ---Egypt?
In this, the 11th hour of the CFR---RED
China handover and American takedown
op ---it would be sort of be 'nice' to pretend
you still care. . .
BTW ------BILDERBERG, the very pow wow
central for the RED China handover and
Global CULL op ---is meeting at the
Westfiedl Marriot Hotel near Dulles
airport in DC next week.
Capstone USURY, 'Glow--ballists'
and EUGENISTS all toegther to clink
glasses and mull their ever beloved,
NEVER ----EVER changing 'age---enda'.
-----------BE THERE!
------------------OR STAY ----A SLAVE!
Ralph Novy| 12.6.12 @ 5:50PM
"Mr. Romney is, after all, a graduate of Harvard Law School, and he had to know all about Mrs. Griswold."
No.
Not at all.
Griswold v. Connecticut is a decisive decision much decidedly ignored.
The Ninth Amendment's portents, after all, are the "third rail" of SCOTUS politics.
Yes? No?