griswold v. connecticut and justice harlan and justice white and vague and overbroad

This essay concludes my reflections on the discovery/invention of the right of privacy in Griswold. Of course the majority will not claim that they are "inventing" the doctrine. They will claim that it is implicit in many of the Court's earlier decisions, going back to the 1920s, and that the finding of a constitutional right to privacy where there are no words expressly assuring this right is different from Lochner's "discovery" of freedom to contract which was then used to overturn a NY statute [Recall that Griswold is about the invalidation of a CT statute forbidding sale of/counseling regarding contraceptives]. But the distinction between the decision that there was a right of privacy somewhere in the Constitution and the actual finding of that right by the majority is an important one to maintain. Several places where that right might be found are expressed in the four majority opinions.

Reviewing the First Two Decisions

Douglas was the most eloquent of the four in fashioning a theory of constitutional rights which led to a discovery of the right of privacy. As I mentioned previously, this theory relied on "emanations" and "penumbras," or, more precisely, on the fact that the right to privacy resided in the "penumbra" (shadow) of a "bright light" (the major constitutional rights) and that you get to the "penumbra" by way of an "emanation" from the light source. So, the right to privacy, even though not explicitly spelled out in the text of any amendment, was as real and as strong and as valid as freedom of religion or speech from the First Amendment. That right to privacy, for Douglas, was found in the "penumbras" of the First, Third, Fourth and Fifth Amendments. Ok. One theory.

Goldberg, Warren and Brennan argued that the Ninth Amendment, ignored until a scholar wrote a book on it in 1955, was the Constitutional source for the right of privacy. Well, I need to be more precise on this point. I can best establish what I want to say by first quoting the Amendment's language: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What Goldberg said was not that the 9th Amendment was actually a source of new rights (that is, you can't "open the trunk" of the 9th Amendment and "find" the right of privacy in the trunk) but that the 9th Amendment indicates that the enumeration of rights in Amendments 1-8 isn't exhaustive. Therefore, there are other rights, basic constitutional rights, that aren't found in the first eight amendments. The 9th Amendment tells us this. But, where are they they then found? Well, once you know that they exist, they may be found in Douglas' penumbras or they may be found, I suppose, outside of the Bill of Rights. They might emerge out of other passages in the Constitution. Thus, these concurrers were not necessarily buying Douglas' analysis with respect to the various Amendments he listed; they were satisfied to say that the 9th Amendment points to (unspecified) sources of additional rights. The most that they say is that "the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights." I suppose that means that they found, with the help of the 9th Amendment, their right to privacy in the word "liberty" in the due process clause of the 14th Amendment. Theory two.

Harlan's Concurrence

Justice Harlan has no need to find the right of privacy in the language of one of the first nine Amendments. In his words, "The Due Process Clause of the Fourteenth Amendment stands, in my, opinion, on its own bottom." I don't know how things stand on their bottoms, but I know how they stand on their feet, and that is probably what he means. But he makes a comment on another subject, incorporation, which I will mention here.

Incorporation is another doctrine that I only imperfectly understood in law school, even though people bandied it about quite frequently. Harlan brings up the doctrine when he says:

"The reason [why he couldn't join the Court's opinion] is that it seems to me to evince an approach to this case very much like that taken by my Brothers Black and Stewart in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights. In other words, what I find implicit in the Court's opinion is that the 'incorporation' doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the 'incorporation' approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them."

This is not the place to discuss the contours of incorporation completely. Suffice it to say that is a doctrine developed in the 1940s which held that some (Black would say all) the rights given to individuals as against the federal government in the first eight amendments would also apply against the states through the application of the 14th Amendment Due Process Clause. It is really quite a creative doctrine which I will not here address.

Justice Harlan is saying that the majority opinions suggest that only if a right could be found in the first eight amendments (or their penumbras) would the Due Process Clause protect it (my summary of the Goldberg concurrence would have allowed them to find the right to privacy outside the first eight amendments). Harlan disagrees. The 14th Amendment Due Process Clause itself is the source of rights. In this case the clause protects "basic values implicit in the concept of ordered liberty" (quoting a 1937 case). Thus, Harlan would argue that the right of privacy is one of these "basic values." How do you know? "Only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms." So, it is a historical and cultural inquiry of sorts to give us this information. Theory three.

White's Concurrence

He, like Harlan, would find the right to privacy implicit in the "liberty" word of the 14th Amendment, but his analysis of this word and statute is different from Harlan's. White would bring into the analysis a balancing test or an "interests" test. That is, he would inquire about the nature of the right invaded by the CT statute (the marital relationship), the nature of the interest of the state (is it compelling?) and the resultant constitutionality of the law. But he quotes some language from two previous cases that appears to be in tension as to the "test" to be used even if he wants to speak of competing interests. On the one hand, the Bates case talks about "where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." On the other hand, in the Zemel case, the Court talked about a "legitimate and substantial state interest" in a statute--which would then not be invalid under the Due Process Clause.

I think the language of these two cases is not fully compatible. A state's "compelling" interest is not the same as a "substantial" interest. Even though White seems to use both of these cases to give him guidance in weighing the CT statute, the asserted state interest (the policy against all forms of promiscuous or illicit sexual relationships) sweeps too broadly. The statute also sweeps into the bedroom of the married couple, and this has nothing to do with "promiscuous or illicit" sexual relationships. Thus, White seems to support invalidation of the statute because it is overbroad and not because the state's interest isn't compelling or substantial. Hm. It seems that White is kind of smushing together the two rationales, but the overbroad reach of the statute is his final word.

Conclusion

White's overbreadth analysis, combined with Stewart's words in dissent that the liberty interest in the Due Process Clause only relates to "vague" or "procedural" due process problems, brings up the issue of how broadly the 'liberty' interest really does sweep. But this question is beyond the scope of this essay. For now we conclude that Griswold teaches that there is a right of privacy, but under which Constitutional bushel or in which trunk it is lurking seems to be a mystery. Nevertheless we can be sure, the majority tells us, that it is there.

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