Throughout the more than two centuries since the ratification of the US Constitution, there have been “schools” of thinking about how it should be interpreted. In other words, groups of political thinkers and judges have tried to think of principles that should guide judges as they exercise this great power to interpret, or say whether a law conforms with, the US Constitution. More conservative judges tend to argue that the text of the Constitution and the previous legal decisions of the Court, or precedents, are the only things that should guide decisions. More liberal judges argue that one can not literally apply the text of the Constitution to modern cases. There is so much happening now that the Framers did not discuss or could have possibly anticipated. Thus, one must take into account broader issues when interpreting. The Constitution must be allowed to evolve with the times, and the Court must consider the public good in their interpretations.

One court case in particular highlighted the debate of original and evolving meaning in the interpretation of the Constitution — Griswold v. Connecticut (1965). The state of Connecticut had a law from 1879 that prohibited couples, even married couples, from using contraceptives and physicians from prescribing them. Estelle Griswold opened a Planned Parenthood clinic in Connecticut which offered contraceptive devices to women. It was promptly shut down. She appealed to the US Supreme Court and won the right to distribute contraceptives.

The majority of judges, 7-2, argued in their opinions that the women who received the contraceptives had a “right to marital privacy.” While the word “privacy” does not appear in the Constitution, the majority argued that the penumbra, the shadow cast or the implied meanings, in the 9th Amendment, as well as other parts of the Constitution, protected people in their persons (and in their marital intimacy) from state intrusion, something Connecticut had done with this law. The minority judges responded that the majority was simply making up law. The opinions of the justices in Griswolddemonstrate the constant debate of original and evolving meaning in the US Constitution.


Source 1: Justice William O. Douglas, Majority Opinion

“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…. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Source 2: Justice Arthur Goldberg, Majority Opinion

“ [T]he intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which, always and in every age, it has fostered and protected. It is one thing when the State exerts its power either to forbid extramarital sexuality … or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy…. In sum, I believe that the right of privacy in the marital relation is fundamental and basic — a personal right “retained by the people” within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners’ convictions must therefore be reversed.”

Source 3: Justice Hugo Black, Minority Opinion

“[T]his Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose flexible uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have. I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.”

Source 4: Justice Potter Stewart, Minority 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.
“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.
“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 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.”


Analyze the Evidence


What seems to be the differences of more conservative and liberal justices with regard to the Griswolddecision?

Instructions: Fill in the chart with quotations from majority and minority opinions on these questions of constitutional interpretation. Make sure you note the name of the justice.

Questions and Evidence Chart

Can the justices see an implied meaning (penumbra) in the constitution, and what can they do?

Majority Opinion :

Minority Opinion :

Can a more flexible interpretation of the constitution hold up and, if so, what guides the interpretation?

Majority Opinion :

Minority Opinion :

If Connecticut’s law was so bad that most people in 1965 thought that Griswold’s rights were being violated, what should she do?

Majority Opinion :

Minority Opinion :

Should the justices give more deference to states like Connecticut or to individuals like Griswold?

Majority Opinion :

Minority Opinion :

What amendment seems to be most concerned in interpreting Griswold and what does the justice think is most critical in that law?

Majority Opinion :

Minority Opinion :

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