Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (review)

This book comes out of an extremely admirable and valuable series called Landmark Law Cases and American Society. The series is especially useful because it is generally committed to the idea of rescuing important cases in American history from the dead hand of legal scholarship. The goal is to bring them back into the real world—that is, the social, political, economic, and cultural context that gave them birth. The books in this series also modify and enrich the legal context. Treatises and case books tend to look at Supreme Court cases as if they somehow sprang full-blown from the heads of the nine justices. But they all have significant pre-histories: They all struggle up the pyramid of courts, and they are all shaped, influenced, and molded by briefs, oral arguments, memoranda circulating in chambers, discussions between clerks and Justices, and so on.

Griswold v. Connecticut struck down a stubborn Connecticut law that, in effect, outlawed contraception and contraceptive advice. At the time (1965), no other state had so restrictive a law on the subject. Johnson recounts, in some detail, the futile attempts to persuade the legislature of Connecticut to repeal the law. Repeated failure led to a judicial strategy—trying to convince the judges, state and federal, to step into the breach. For the most part, the judges were extremely reluctant to get involved. There were all sorts of detours along the way; but finally, in Griswold, the majority of the justice swept the Connecticut law into the dustbin of history.

The fate of one archaic law in one small state would ordinarily be of only marginal historical interest. But Griswold is the case that, in the standard account, invented the constitutional right of privacy, and of course in a sense it did. But Johnson points out how the concept of privacy, and the language of privacy, had popped up here and there, almost incidentally, in cases turning on other questions of constitutional law. He also shows the role that the concept played in the briefs and arguments, and in the debate among the justices inside the Supreme Court. The narrative account does not end with Griswold. Johnson also follows, succinctly, the dramatic career of this new constitutional right, through Roe v. Wade to Lawrence v. Texas. The Griswold case, as Johnson tells us in his concluding paragraph, "unleashed" the constitutional right of privacy, which has "transformed the legal landscape"; its "repercussions have touched the most intimate aspects of human life" (234). The key word in this last sentence is "intimate." As Johnson points out, the tort of invasion of privacy, launched in the late nineteenth century, was never successfully applied against law enforcement officers (62). It is an interesting fact that the dramatic increase in protection of "intimate" choices coexists with the Patriot Act, and a scary expansion of the government's right to snoop into private affairs in other than these "intimate" aspects of life. This development does not downsize the importance of the right of privacy in those regions of intimacy.

Griswold's legacy has been deeply controversial in at least two areas, abortion rights and gay rights. Yet Griswold itself seems serenely unassailable. Nobody calls for overruling it, even though scholars are critical of the actual opinions in the case (rather than the result). In particular, scholars sneer at what Justice William O. Douglas wrote, his "sloppiness and facile reasoning," and his invocation of such weird ideas as "emanations" from, and "penumbras" surrounding, the Bill of Rights (224). Somehow, the result in Griswold suited the temper of the times. Contraception was on its way to becoming a non-issue, for the most part, and, though there is dispute about boundary lines, personal privacy and rights of intimate choice are also in essence wildly popular. Many new constitutions, all over the world, make explicit mention of rights of privacy, or something equivalent. In the United States, we...