Connecticut and Contraception
In 1879, Connecticut – like many states around this time – passed a law banning contraception. It stated:
“any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.” It further stated that “any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principle offender.”
In 1965, the Supreme Court heard the case of Estelle Grisworld, the executive director of Planned Parenthood League of Connecticut, who was arrested for distributing contraception in violation of the Connecticut law. Many at the time argued that the contraception law was obsolete but, rather than simply seeking the normal solution of a repeal by the Connecticut legislature, she chose to seek a judicial finding of a Constitutional right to contraception. The problem? As one might expect, there is no mention of contraception in the Constitution. Well, what about the right to privacy- that might cover contraception?
There is no mention of “privacy” in the Constitution
Nope, no mention of privacy either. This isn’t really surprising. Privacy is a relatively new phenomenon, a product of the industrial revolution and so only about 150 years old. When the framers wrote the Constitution, most people lived in small, farming communities where everyone knows everyone and everyone’s business. So what were they thinking when they wrote the 3rd amendment (no housing soldiers in homes) or the 4th amendment (no unreasonable searches or seizures)?
What were the framers thinking if not privacy?
The framers of the Constitution were primarily concerned with property not privacy. The right to property is something the enlightenment thinkers that inspired the framers wrote extensively about. Therefore, it stands to reason that they were trying to protect property rights (which they saw as essential) rather than privacy rights.
To understand Griswold, you’ve got to know some astronomy
Griswold v. Connecticut, in finding a right to privacy and thus a right to contraception, makes use of some terms normally used only by astronomers. This brings us to eclipses and their emanations and penumbras as mentioned by the Supreme Court in their decision.
Let’s Talk Astronomy and the Supreme Court
Look at a picture of a solar eclipse. Do you see the moon in it? The answer is “no”. You might think you see the moon but in fact you are only see a shadow, a shadow that we can assume is made by the moon. This assumption is not natural, of course, it is based on our understanding of the solar system. The ancient Chinese, for example, believed the sun was being eaten by a dragon. For some Native Americans, the hungry beast was a bear. The ancient Greeks believed it was a sign of angry gods. We know it is the moon because we know about the orbits and behaviors of celestial bodies.
In astronomy, a penumbra is something you can only see because of adjacent emanation, for example, the moon during a solar eclipse. You cannot really the see the moon at this time. You can only tell it exists because of the adjacent emanation of light.
So what does astronomy have to do with the Constitution?
Justice Douglas writing for the majority in Griswold v. Connecticut said “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.” He goes on to state that even though the Constitution doesn’t say “privacy” it must exist because why else would we care if the police searched our house (4th amendment) or put soldiers in our homes (3rd amendment). In Douglas’ mind, the right to privacy is the moon in the solar eclipse – not seen directly but it must be there. There is a serious weakness to this line of thinking, however.
Right to Privacy? What about the Right of Property?
In Douglas’ mind only a right to privacy could justify us not wanting the government searching our homes or housing soldiers in our spare bedrooms. But what if there’s another possible explanation? What if the framers of the Constitution didn’t value privacy so much as they valued property. That the right to property and not the right to privacy is the cause of the 3rd and 4th amendments – the “emanation” – is not only possible, it is the most likely if one were to read the writings of the framers as well as the works they based their ideas upon.
Privacy is important but not in the Constitution.
This is not to say that privacy is not important – it is! It is just to say that an honest reading of the Constitution doesn’t find it. Even a staunch liberal of the Court, Justice Hugo Black, recognized this in his dissent when he wrote: For these reasons, I get nowhere in this case by talk about a constitutional “right of privacy” as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.
This kind of Constitutional stretching is dangerous and unnecessary.
One of the problems with this type of Constitutional creativity is that it can lead to unintended consequences. One could argue today, of course, that few people are in favor of a ban on contraception but this misses the point. When the Supreme Court rules on a case it establishes a precedent for future scenarios it might not even imagine at the time. In the instance, Griswold was specifically cited as precedent eight years later in Roe v. Wade. Decades of debate and division would follow all for an issue that could have been addressed in the Connecticut state legislature.