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Is Griswold v. Connecticut Consistent with the Original Meaning?

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum.

But is Griswold in accord with the original meaning? I don’t believe any of the justifications offered in Griswold – substantive due process, the 9th Amendment, emanations from penumbras – work from an originalist perspective. But I do believe that another basis may do the trick.

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms). Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time. Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect. It may be that those rights should have been protected over a period of time, not just for a particular instant. I will try to explain the basis for this view in a future post.

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States. According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”

If Justice Harlan is right, then this would support a right to use contraceptives. Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right.

I should note that I have changed my mind about this issue. Based on the feeble justifications given for the right in Griswold and subsequent cases, I have for a long time believed that Griswold did not accord with the original meaning. But now I am inclined (although am not certain) that it is justified under the original meaning.

Reader Discussion

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on July 17, 2014 at 09:56:11 am

I want to agree, but cannot. I agree that P&I in the 19th Century meant the popular understanding of the day as to what privileges people naturally had; witness the long laundry list of privileges one can find in a case like Corfield v. Coryell, 6 F. Cas. 546 (1823). However, giving judges the ability to preclude legislative action based on what they might believe the current idea of a “privilege” to be seems several bridges too far.

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Ron Johnson
on July 17, 2014 at 15:03:42 pm

Ron:

I think you are absolutely correct on this.
Why would we ever consider providing our Black Robed masters with another opportunity to further expand the present judicially concocted cornucopia of "rights."

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gabe
on July 17, 2014 at 15:48:50 pm

Just because Griswold is a popular case, and just because the result was good, doesn't mean that there is any methodological basis for it in Originalism. This is one of those cases where the Originalist response must be: so what? As Justice Scalia has said, 'you can get all sorts of good results with a King or an absolute dictator that the messy processes of Democracy won't produce, but that's no good argument for monarchy or dictatorship.' The law in Griswold was idiotic and unfair, and wrought terrible consequences for the families burdened by it, but those are all valid arguments why it should have been repealed, not struck down.

I think Originalism's apologists have a much easier road defeating the idea that Plessy v. Ferguson, along with the Slaughterhouse and Civil Rights Cases, was an Originalist opinion, since Railroad Company v. Brown preceded it and there the Court held that the 13th Amendment by itself (since the 14th was then pending) provided sufficient grounds to believe that Congress's desire in enacting a rail charter providing that no person "should be excluded from the cars on account of color" meant no segregation.

How the Court in light of that could later interpret the full 14th Amendment, with its explicit equal protection clause, not only not to require such accommodation, but also not even to authorize, through its enforcement clause, statutory accommodations like the 1875 Civil Rights Act, which would have totally obviated the later issue in Plessy, is a mystery if one thinks of those opinions as representing Originalism rather than an activist backlash representing the public's waning patience with Reconstruction.

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Matt L
on July 18, 2014 at 19:58:54 pm

Mike, you state, “(E)ven if Griswold is not in accord with the original meaning, a proper ‘theory of precedent’ would enforce it as having widespread support across the political spectrum… I do believe that another basis may do the trick… These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment…”
Yet, you do not proceed “towards the ‘following view of the Privileges or Immunities Clause of the 14th Amendment’…” You do speak of something “termed the prevalent rights view”-- with no clear ‘view’ of the “prevalent rights”. And you sum it up with, “I will try to explain the basis for this view in a future post… parameters of that right… I am inclined (although am not certain) that it is justified under the ‘original meaning’.”
Mike, I am trying to understand the ‘meanings’ in your post here.
1. What do you mean by “Original Meaning” – “original meaning” of the founders, “original meaning” of the Constitution, original meaning of the Ninth & Tenth Amendments, original meaning of the Privileges or Immunities Clause of the 14th Amendment?
2. Please, list the ‘enumerations’ of the Privileges or Immunities Clause of the 14th Amendment.
3. Please, list the enumerations’ of the Privileges or Immunities Clause of Article IV of the Constitution.
4. What law did the State of Connecticut enforce that abridged “the privileges or immunities of citizens of the United States”?
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins
on July 18, 2014 at 22:03:56 pm

Mike Rappaport writes: "Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case." That is certainly the conventional wisdom, but I am not convinced that it is correct, and a lot depends upon how the question is posed.

I myself would certainly agree that it would be fine for the U.S. Constitution to bar laws that take away contraceptives. But that is not a correct way to phrase the issue.

Suppose that nothing in the Constitution actually means what the Court in Griswold said it means. If pollsters asked people to make that assumption, would Griswold really be popular? If so, would it still be popular if the pollster also mentions that overturning Griswold would very quickly lead to an Article V amendment enshrining the right in question?

I doubt most people would agree that judges should pretend the Constitution means something that it does not mean, or that constitutional amendments are a waste of time because the Constitution means whatever five Supreme Court justices want it to mean. All of that goes double if the pollster mentions that a right to contraceptives could very easily be inserted into the Constitution via Article V, if and when Griswold is overturned.

So, my hunch is that the alleged popularity of Griswold is more myth than reality. More generally, if you polled people as to whether bad and unwise laws are unconstitutional --- or at least ought to be unconstitutional --- then probably upwards of 75% of Americans would say "yes". But if you polled people as to whether a judicial dictatorship would be better than a representative democracy, then the same overwhelming majority would probably say "no". In reality, you can't have one without the other (i.e. giving judges power to decide what laws are "good" would make legislators pretty much irrelevant), but what pollster ever mentioned that?

Bottom line: I am not convinced that Griswold is a popular decision, assuming that people are told that it was unwarranted by the Constitution. After all, that document itself remains fairly popular, and the right declared in Griswold could easily be inserted via Article V, assuming that that right is not already there.

I won't elaborate here about the rest of Professor Rappaport's blog post, except to say that I disagree with him about the meaning of the Privileges or Immunities Clause, and also about the propriety of clearly erroneous precedents prevailing over the constitutional clauses that they mangled.

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Andrew Hyman
on July 19, 2014 at 00:38:59 am

Look, this isn't any different than the living constitution dimwits claim the constitution evolves with the advancement of society. It is a charter for unelected judges to rewrite laws according to their whims. Liberal hope those whims will make buggery the national pastime. Conservatives hope those whims will make must issue concealed carry mandatory. The only way out of this swamp is to ensure that the courts enforce the constitution and laws as they are written. Everything else is another step down the path to hell that we are on.

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Walter Sobchak
on July 19, 2014 at 01:05:21 am

Here is something I wrote on this very topic 5 years ago:

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z9z99
on July 20, 2014 at 19:11:40 pm

Z:

Nice piece!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.