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Mr. Justice STEWART, whom Mr. Justice BLACK joins,
dissenting.
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
Since 1879 Connecticut has had on its books a
law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly
law. As a practical matter, the law is obviously unenforceable, except in the oblique
context of the present case. As a philosophical matter, I believe the use of
contraceptives in the relationship of marriage should be left to personal and private
choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of
social policy, I think professional counsel about methods of birth control should be
available to all, so that each individual's choice can be meaningfully made. But we are
not asked in this case to say whether we think this law is unwise, or even asinine. We are
asked to hold that it violates the United States Constitution. And that I cannot do.
In the course of its opinion the Court refers
to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the
Fifth, the Ninth, and the Fourteenth. *528 But the Court does not say which of
these Amendments, if any, it thinks is infringed by this Connecticut law.
We are told that the Due Process
Clause of the Fourteenth Amendment is not, as such, the 'guide' in this case. With that
much I agree. There is no claim that this law, duly enacted by the Connecticut
Legislature, is unconstitutionally vague. There is no claim that the appellants were
denied any of the elements of procedural due process at their trial, so as to make their
convictions constitutionally invalid. And, as the Court says, the day has long
passed since the Due Process Clause was regarded as a proper instrument for determining
'the wisdom, need, and propriety' of state laws. Compare Lochner v. State of New York, 198
U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, with Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028,
10 L.Ed.2d 93. My Brothers HARLAN and WHITE to the contrary, '(w)e have returned to the
original constitutional proposition that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies, who are elected to pass laws.'
Ferguson v. Skrupa, supra, 372 U.S. at 730, 83 S.Ct. at 1031.
As to the First, Third, Fourth, and Fifth
Amendments, I can find nothing in any of them to invalidate this Connecticut law, even
assuming that all those Amendments are fully applicable against the States. [Fn1] It has
*529 not even been argued that this is a law 'respecting an establishment of religion,
or prohibiting the free exercise thereof.' [Fn2] And surely, unless the solemn process of
constitutional adjudication is to descend to the level of a play on words, there is not
involved here any abridgment of 'the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.' [Fn3] No soldier has been quartered in any house. [Fn4] There has been no
search, and no seizure. [Fn5] Nobody has been compelled to be a witness against himself.
[Fn6]
Fn1. The Amendments in question were, as
everyone knows, originally adopted as limitations upon the power of the newly created
Federal Government, not as limitations upon the powers of the individual States. But the
Court has held that many of the provisions of the first eight amendments are fully
embraced by the Fourteenth Amendment as limitations upon state action, and some members of
the Court have held the view that the adoption of the Fourteenth Amendment made every
provision of the first eight amendments fully applicable against the States. See Adamson
v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684 (dissenting opinion
of Mr. Justice Black).
Fn2. U.S.Constitution, Amendment I. To be
sure, the injunction contained in the Connecticut statute coincides with the doctrine of
certain religious faiths. But if that were enough to invalidate a law under the provisions
of the First Amendment relating to religion, then most criminal laws would be invalidated.
See, e.g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James).
Fn3. U.S.Constitution, Amendment I. If all
the appellants had done was to advise people that they thought the use of contraceptives
was desirable, or even to counsel their use, the appellants would, of course, have a
substantial First Amendment claim. But their activities went far beyond mere advocacy.
They prescribed specific contraceptive devices and furnished patients with the prescribed
contraceptive materials.
Fn4. U.S.Constitution, Amendment III.
Fn5. U.S.Constitution, Amendment IV.
Fn6. U.S.Constitution, Amendment V.
The Court also quotes the Ninth Amendment,
and my Brother GOLDBERG's concurring opinion relies heavily upon it. But to say that the
Ninth Amendment has anything to do with this case is to turn somersaults with history. The
Ninth Amendment, like its companion the Tenth, which this Court held 'states but a truism
that all is retained which has not been surrendered,' United States v. Darby, 312 U.S.
100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609, was framed by James Madison and adopted by the
States simply to make clear that the adoption of the Bill of Rights did not alter the plan
that *530 the Federal Government was to be a government of express and
limited powers, and that all rights and powers not delegated to it were retained by the
people and the individual States. Until today no member of this Court has ever suggested
that the Ninth Amendment meant anything else, and the idea that a federal court could ever
use the Ninth Amendment to annul a law passed by the elected representatives of the people
of the State of Connecticut would have caused James Madison no little wonder.
What provision of the Constitution, then,
does make this state law invalid? 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. [Fn7]
Fn7. Cases like Shelton v. Tucker, 364 U.S.
479, 81 S.Ct. 247, 5 L.Ed.2d 231, and Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct.
412, 4 L.Ed.2d 480, relied upon in the concurring opinions today. dealt with true First
Amendment rights of association and are wholly inapposite here. See also, e.g.,
NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Edwards v. South
Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Our decision in McLaughlin v. State
of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, is equally far afield. That case
held invalid under the Equal Protection Clause a state criminal law which discriminated
against Negroes.
The Court does not say how far the new
constitutional right of privacy announced today extends. See, e.g., Mueller,
Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose,
however, that even after today a State can constitutionally still punish at least some
offenses which are not committed in public.
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.' It is
the essence of judicial *531 duty to subordinate our own personal views, our own
ideas of what legislation is wise and what is not. 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. [Fn8]
Fn8. See Reynolds v. Sims, 377 U.S. 533, 562,
84 S.Ct. 1362, 1381, 12 L.Ed.2d 506. The Connecticut House of Representatives recently
passed a bill (House Bill No. 2462) repealing the birth control law. The State Senate has
apparently not yet acted on the measure, and today is relieved of that responsibility by
the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7.
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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