Griswold v. Connecticut, 381 U.S. 479 (1965), is one of the foundational cases of a constitutional “right to privacy” in the United States — though, as many have pointed out, the word “privacy” does not appear in the text of the Constitution itself. The precedent in the majority opinion by Justice Douglas is nonetheless strong and deeply rooted in tradition.

Two Kinds of Privacy

The line of “privacy” cases Griswold relies on is traceable back to, among other sources, Warren and Brandeis’ 1890 law-review article, “The Right to Privacy.” Unlike that argument, which concerned the right of individuals to be free from invasive newspaper photographers (a kind of “informational privacy”), Griswold emphasizes “privacy-as-autonomy” — that is, the freedom and liberty of an individual to make decisions for themselves and thus limiting the exercise of governmental power (in the case of the State of Connecticut, their general “police power” to protect “public safety, health, and morals“).

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
— Fourteenth Amendment, Section 1

The Lochner Problem

Justice Douglas, in his majority opinion, took pains to distinguish Griswold from the discredited decision of Lochner v. United States, 198 U.S. 45 (1905), which found an unenumerated right (“liberty of contract”) in the Constitution and applied it to the states via the Fourteenth Amendment. Douglas argued that the Court in Griswold was not doing what the Court did in Lochner:

We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation. Griswold at 482.

Of note is Douglas’ rhetorical connection, via marriage and the family, to that key fount of American privacy: the domestic home.

“Penumbras” and Enumerated Rights

To further bolster his position, Douglas connects his argument to explicit rights enumerated in the Constitution, such as the First Amendment and prior cases that defined its scope:

The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach. … Without those peripheral rights the specific [enumerated] rights [of the First Amendment] would be less secure. Griswold at 482-83.

His uses of precedent and arguments about “peripheral rights” helped lead into his famously controversial statement about “penumbras” and “emanations”:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Griswold at 484.

Douglas was not the first to write about “penumbras” of constitutional rights, however. Justice Holmes, for example, wrote that:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. Springer v. Philippine Islands, 277 U.S. 189, 209-210 (1928).

Enumerated Rights and “Zones of Privacy”

Douglas then goes on to list some of the various enumerated rights that implicate privacy in various forms, creating what he terms “zones of privacy”:

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. Griswold at 484.

And, of course, he suggests that the Framers never intended the listing of enumerated rights added to the Constitution to be all-inclusive anyway:

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Griswold at 484.

Back to Tradition

Rhetorically, Douglas returns to the long-standing theme of the sacredness of the domestic sphere, and of the bedroom in particular:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. Griswold at 485-86.

In his final rhetorical ending, Douglas reaches back to what the Founders might have called natural law to ground his argument in past legal traditions:

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Griswold at 486.

An interesting comparison is to Justice Kennedy’s opinion in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and his use of “dignity” in discussing marriage and rights.

Would Different Terminology Matter?

I sometimes wonder if current arguments against this constitutional “right to privacy” would have been different if Douglas had chosen to simply call it the “right to liberty” or some similar term. Would that change our discussion of contraception, abortion, or religion? Or would disconnecting it from the domestic sphere have weakened traditionalists support for the protections Douglas sought?