The right to privacy is not in the Constitution. For some this is sufficient to maintain that it does not exist. Other argued that it exists in the loose language of clearly stated rights in the Bill of Rights. Scalia was no fan of the right since it did not fit his preferred means of interpreting constitutional language.
Here's the story of how the right was claimed in the case of Griswold v Connecticut.
- Click here for it.
Here's the story of how the right was claimed in the case of Griswold v Connecticut.
- Click here for it.
For 50 years, thanks to the Supreme Court’s landmark decision in Griswold v. Connecticut, Americans have enjoyed a constitutional right to privacy. That right, nowhere expressly mentioned in the Constitution but now relied upon by millions, has since been invoked to cover everything from contraception to abortion to gay rights, helping to ignite a raging culture war along the way. But few realize that this right, considered by some a “bedrock principle” of American law — and one that has prevented countless unwanted pregnancies and births over the past half century — came very close to never being born.
In fact, just two months before the Supreme Court issued its controversial decision in Griswold on June 7, 1965, the embryonic right was mostly confined to the scribblings of a 66-year-old jurist. Shortly after being assigned to write the majority opinion in the case, Justice William O. Douglas, a committed civil libertarian who authored 1,164 opinions in 36 years on the Court, had sketched out a first draft — a mere six typewritten pages in length.
. . . None of the nine men sitting on the Supreme Court thought Connecticut’s 1879 anti-contraception law, both prohibiting the use of contraceptives and abetting that use, was a sensible law (in his dissent, Justice Potter Stewart called it “uncommonly silly”). But the problem was finding something in the Constitution that agreed, a task willingly undertaken by the seven-justice majority. Douglas’ solution, cobbled together like an all-you-can-justify meal from a Bill of Rights buffet, was ingenious and somewhat laughable — and one reason Griswold has since become a lighting rod for those decrying the court’s judicial activism.
According to Douglas, the specific guarantees enunciated in the Bill of Rights “have penumbras, formed by emanations from those guarantees that help give them life and substance,” and the “right to marital privacy” violated by the Connecticut statute emanated from the “zones of privacy” created by several constitutional amendments, including the first (free association), third (prohibition on the quartering of troops), fourth (searches and seizures) and ninth (other rights retained by the people).
When Douglas’ draft opinion was circulated, says Garrow, the clerks in other chambers were shocked at how thin it was, and the references to “penumbras” and “emanations” elicited more than a few sniggers. Could such an unorthodox opinion command a majority of the court? Even Chief Justice Earl Warren, the court’s liberal lion who had assigned Douglas the opinion, was hesitant to sign on. One of Warren’s clerks, John Hart Ely, later a preeminent constitutional scholar, wrote him a 30-page memo on the case. “No matter how strong a dislike for a piece of legislation may be,” Ely counseled, “I do not think the Court should enforce clauses which are not there.”
