'Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.' Section 54—196, General Statutes of Connecticut (1958 rev.)
This was the statute that was struck down by the Supreme Court in 1965 in
Griswold v. Connecticut. In doing so, the Supreme Court stated, "This law... operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation." As the Court then put it, "We deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system." We are on the precipice of laws such as this being reinstated around the country. Do we want to be?
The Court rested its decision on the concept that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." It is the same basis that informed the Court's decision in
Roe v. Wade. But three of the then-Justices, in concurrence, went further and specifically addressed the Ninth Amendment's application to the issue: "My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution
1 is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the
Ninth Amendment." ('The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.')
The concurrence noted that "The language and history of the
Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments." They concluded "the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people."
I have always preferred the concurrence's argument over the "penumbra" argument, as it stands on firmer footing. I think almost anyone would agree that privacy is a fundamental interest of all of us, even if it is not explicitly stated in the Constitution's "Bill of Rights". As the concurrence notes, "The
Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights."
How are we to protect fundamental rights from governmental erasure if we don't acknowledge that the Constitution is broader than its four corners?
