Today is a special day for Law Talkin’ Guy, as this is the first original blog post on the new site. To mark this august occasion, we will explore an important, “recent” right, the right to privacy. Now wait a second, eagle-eyed Constitution readers may say. A Constitutional right to privacy? I have read that document cover to cover and have found no such thing. What is this sorcery?
That’s a fair question, but no, this is not sorcery, this time. This is the Supreme Court building on decades of precedent, and/or adapting the Constitutions to fit the times, and/or making stuff up. Regardless of how you characterize it, it is law, it’s real, and it’s spectacular. The story begins long ago, arguably 1886, but we’ll join in at 1965. Star Trek had not yet aired, and Connecticut had a statute that banned the use of contraception (and aiding and abetting the use of contraception.) Estelle Griswold, the Executive Director of Planned Parenthood in CT, and Dr. C. Lee Buxton, noted gynecologist, opened up a clinic to challenge the state law and saw several patients, examining women and providing contracetive devices. Shortly thereafter, Griswold and Boxton were arrested, tried, and fined for violating the anti-contraception law. As noted by the Supreme Court, Griswold and Buxton provided “information, instruction, and medical advice to married persons.” (Griswold v. CT, 381 U.S. 479, 480 (1965).
By a 7-2 majority, the Court held the statute unconstitutional, and there was much rejoicing.
But wait, there’s more! Griswold, a case firmly sitting on the “legal realism” side of the fence, established far-reaching precedent. Some conservatives argue, like Justice Black did at the time, that Griswold is wrongly-decided, with the “right to privacy” appearing nowhere in the Constitution, and the Court thus not having the power to invalidate what he acknowledges is a bad law. I personally agree with the Griswold Court, and I’ve been open about my feelings on legal realism, so I will not belabor that point. What I will do is highlight some of the reasoning that went into the extraordinary step of recognizing a “new” Constitutional right, and let the Court belabor the point for me.
If you follow Constitutional law (RBG trading cards?), you’ve likely heard of “penumbras,” the implicit rights connected to explicit rights, and you have Griswold to thank for that. The Court begins by noting that the right to educate one’s children as one choose, the right to study whatever language you desire, the rights to distribute, receive, read, inquire, think, and teach are all protected by the First Amendment, although none are explicitly mentioned. Why?
“Without those periperhal rights, the specific rights would be less secure … In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association. Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold, 381 U.S. at 482-483 (emphasis added).
The Court goes on to say that the Bill of Rights contains specific guarantees, while the penumbras around them provide life and substance. The right of association in the First Amendment, with the rights contained in the Third, Fourth, Fifth, and Ninth Amendments create “zones of privacy.” If you are still uncomfortable with penumbras and zones, turn to the Griswold concurrences. Justice Goldberg used the Ninth Amendment, while Justices White and Harlan II rested on the 14th Amendment. I’ll add that while the “right to privacy” is not in the Constitution and Griswold takes a lot of flack for making that up (in some circles), Griswold is far from the first case to discuss a Constititioal right to privacy. From Boyd v. U.S. (1886), to Mapp v. Ohio (1961), and several others throughout the 20th century, the Court issued several opinions concerned privacy.
The right to privacy is perhaps the best example of a recognized, beloved Constitutional right that’s nonetheless not explicitly in the Constitution. Among other things, that means the right is susceptible to challenge (although precedent mounts against it). Griswold provides a foundation for Roe, so it is not a stretch to say that some groups have been targetted Griswold since it became law. Stay vigilant, and guard your rights.