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Mr. Justice HARLAN, concurring in the judgment.
Griswald v. Connecticut
Court Cases
Index
Court's Opinion, Justice Douglas
Justice White's concurring opinion
Justice Harlan's concurring opinion
Justice Goldberg's concurring opinion
Justice Black's dissenting opinion
Justice Stewart's dissenting opinion
I fully agree with the judgment of reversal,
but find myself unable to join the Court's opinion. The reason 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.
*500 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. See,
e.g., my concurring opinions in Pointer v. State of Texas, 380 U.S. 400, 408, 85
S.Ct. 1065, 1070, 13 L.Ed.2d 923, and Griffin v. California, 380 U.S. 609, 615, 85 S.Ct.
1229, 1233, 14 L.Ed.2d 106, and my dissenting opinion in Poe v. Ullman, 367 U.S. 497, 522,
at pp. 539-545, 81 S.Ct. 1752, 1774, 1778.
In my view, the proper constitutional inquiry
in this case is whether this Connecticut statute infringes the Due Process Clause of the
Fourteenth Amendment because the enactment violates basic values 'implicit in the concept
of ordered liberty,' Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152,
82 L.Ed. 288. For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra,
I believe that it does. While the relevant inquiry may be aided by resort to one or more
of the provisions of the Bill of Rights, it is not dependent on them or any of their
radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on
its own bottom.
A further observation seems in order
respecting the justification of my Brothers BLACK and STEWART for their 'incorporation'
approach to this case. Their approach does not rest on historical reasons, which are of
course wholly lacking (see Fairman, Does the Fourteenth Amendment Incorporate the Bill of
Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949)), but on the thesis that by
limiting the content of the Due Process Clause of the Fourteenth Amendment to the
protection of rights which can be found elsewhere in the Constitution, in this instance in
the Bill of Rights, judges will thus be confined to 'interpretation' of specific
constitutional *501 provisions, and will thereby be restrained from introducing
their own notions of constitutional right and wrong into the 'vague contours of the Due
Process Clause.' Rochin v. People of State of California, 342 U.S. 165, 170, 72 S.Ct. 205,
208, 96 L.Ed. 183.
While I could not more heartily agree that
judicial 'self restraint' is an indispensable ingredient of sound constitutional
adjudication, I do submit that the formula suggested for achieving it is more hollow than
real. 'Specific' provisions of the Constitution, no less than 'due process,' lend
themselves as readily to 'personal' interpretations by judges whose constitutional outlook
is simply to keep the Constitution in supposed 'tune with the times' (post, p.
1702). Need one go further than to recall last Term's reapportionment cases, Wesberry v.
Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, and Reynolds v. Sims, 377 U.S. 533, 84
S.Ct. 1362, 12 L.Ed.2d 506, where a majority of the Court 'interpreted' 'by the People'
(Art. I, s 2) and 'equal protection' (Amdt. 14) to command 'one person, one vote,' an
interpretation that was made in the face of irrefutable and still unanswered history to
the contrary? See my dissenting opinions in those cases, 376 U.S., at 20, 84 S.Ct. at 536;
377 U.S., at 589, 84 S.Ct. at 1395.
Judicial self-restraint will not, I suggest,
be brought about in the 'due process' area by the historically unfounded incorporation
formula long advanced by my Brother BLACK, and now in part espoused by my Brother STEWART.
It will be achieved in this area, as in other constitutional areas, 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. See Adamson v. People of State of California, 332 U.S. 46,
59, 67 S.Ct. 1672, 91 L.Ed. 1903 (Mr. Justice Frankfurter, concurring). Adherence to these
principles will not, of course, obviate all constitutional differences of opinion among
judges, nor should it. Their continued recognition *502 will, however, go farther
toward keeping most judges from roaming at large in the constitutional field than will the
interpolation into the Constitution of an artificial and largely illusory restriction on
the content of the Due Process Clause. [Fn*]
Fn* Indeed, my Brother BLACK, in arguing his
thesis, is forced to lay aside a host of of cases in which the Court has recognized
fundamental rights in the Fourteenth Amendment without specific reliance upon the Bill of
Rights. Post, p. 1696, n. 4.
Griswald v. Connecticut
Court Cases
Index
Court's Opinion, Justice Douglas
Justice White's concurring opinion
Justice Harlan's concurring opinion
Justice Goldberg's concurring opinion
Justice Black's dissenting opinion
Justice Stewart's dissenting opinion
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