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1964-1969: LOTS of material. The election of 1964. Lyndon! The Great Society. The War on Poverty, Medicare. The Immigration Act of 1965. The Voting Rights Act of 1965. The Vietnam War, from the Gulf of Tonkin resolution to the Tet Offensive. The Warren Court: Gideon v Wainright, Miranda v Arizona, Griswold v Connecticut, Loving v Virginia. The Smothers Brothers Show. The various strains of the women's movement. Black nationalism. The police riot that accompanied the Democratic National Convention of 1968. Monterey Pop! The election of 1968 and Richard Nixon's secret plan to end the war. Stonewall! Woodstock! The Moon Landing. It makes it no easier that this overlaps with your diarist's teenage years (15-20, actually; when the period begins I'm a sophomore in high school, when it ends, I'm finishing the fall semester of my junior year of college).

The liberation movements are next week (women, gays, Indians). Monterey Pop I've been giving you in Top Comments diaries, and why I didn't go to Woodstock (have you seen the lineup for the Friday night concert?) doesn't expand to much of a diary. Plus, for teaching purposes, I teach this in as much of a chronological order as I can as an example of how history is experienced by the people who live in it. That affects how my class notes work too. So what do I need to learn more about, then? Griswold and the right to privacy is what. Especially because Justice Douglas expressed it this way:  

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.
So Griswold it will be! Especially since I haven't written about a Supreme Court decision yet.

The particulars are simple, and eerily familiar. In 1961, Planned Parenthood opened a clinic in New Haven, CT. They immediately ran afoul of Connecticut state law. I don't think I've covered this here, but the period after the Civil War saw a concerted attempt to rein in pornography and obscenity in the United States.  These efforts were led by a zealot from New York, Anthony Comstock (the link is to a post by Paul Campos over at lawyersgunsmoneyblog.com; Campos's postings on labor history and this posting ESPECIALLY are what inspired me to write my history diaries here). To make a long story short, Comstock drafted a law that prohibited the dissemination of obscenity, pornography and information about contraception and abortion (ads for abortifacients in the 1870s with anatomical drawings could be considered obscene, and after all, anything that had anything to do with sex was part of the sex trade) and got Congress to pass it in 1873. Over the next ten years, states drew up their own laws, many of which were even harsher than the national Comstock Law.

Connecticut's was particularly harsh. Passed into law in 1879, it prohibited the use of

any drug, medicinal article or instrument for the purpose of preventing conception.
No condoms, no IUDs, no diaphragms, NOTHING. And this bill was still in force in 1961. Although the Connecticut authorities had never prosecuted anyone under the law, a complaint against the existence of a clinic that called itself "Planned Parenthood" led the New Haven police arrest the director of the clinic, Estelle Griswold (about whom Diana in NoVa wrote an excellent diary in February 2012). She was delighted, because the Supreme Court had recently dismissed a challenge to the law on a standing argument because nobody had been arrested. Griswold and the clinic's medical director, Dr. Thomas Buxton (a member of the Yale Medical School faculty) pleaded guilty and were fined $100 each for prescribing contraceptives to married couples. Naturally, they appealed.

The Supreme Court heard the case in March 1965. Griswold's attorney attacked the law because it infringed on personal liberty. Connecticut's attorney finally settled on the promotion of marital fidelity as a defense of the law (the availability of contraceptives might cause a wayward spouse to sin). As the political scientist Peter Irons writes:

Given the state's weak argument, the Court could have easily struck it down under the "rational basis" test. But Griswold reached the justices at the height of the Warren Court's "activist" phase, and the liberal majority relished this chance to invalidate a law they viewed as a relic of Victorian morality.
the court voted 7-2 to invalidate the Connecticut law. Justice Douglas was assigned the majority opinion, and he had already created an opening for himself twenty-three years earlier. In the case of Skinner v Oklahoma, a judge in Oklahoma had ruled in 1936 that Jack Skinner should undergo a vasectomy after his third conviction for robbery under Oklahoma's Habitual Criminal Sterilization Act. The case reached the Supreme Court in 1942, by which time people knew about Nazi eugenics. Douglas wrote for a unanimous court:
We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.
That wasn't quite enough for Griswold.
Douglas (official portrait below, courtesy Wikimedia Commons) combed through earlier court decisions that used the First Amendment to establish a right of association and found four. Two supported the rights of parents to make educational decisions for their children and two kept southern officials from harassing the NAACP. He also cited Meyer v Nebraska (1923), which struck down a 1919 law prohibiting the teaching of German in Nebraska's public schools. All that produced the language about "penumbras." Irons suggests that Douglas was trying to avoid basing his opinion entirely on the Due Process Clause of the Fourteenth Amendment to make sure it could not be used as precedent by sweatshop operators or racial bigots. His opinion was joined by Justice Clark.

There were three other concurring opinions and two dissenting opinions. Justice Harlan supported the reversal, but said it should have been based on the Fourteenth Amendment, while Justice White said that Connecticut simply had not proved its case. The dissenting judges, Black and Stewart, each joined each other's opinions. Black just didn't find the law unconstitutional, while Stewart, who found the law "silly," said the State of Connecticut should repeal it.

I've saved Justice Goldberg's opinion (which was joined by Chief Justice Warren and Justice Brennan) for last because it reflects the argument I'm most comfortable with, one that grounds the right of privacy in the Ninth Amendment. Here is its core:

The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, and may be forgotten by others, but, since 1791, it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that [p492] "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, Justice Douglas didn't go far enough. Why this is important is because the right to privacy articulated in Griswold was used in a somewhat different way in Roe v Wade (1972). In Bowers v Hardwick (1986), the Court (5-4) refused to extend the Fourteenth Amendment's privacy protection to homosexual acts, but in Lawrence v Texas (2003), six members of the Court decided they had defined privacy and liberty too narrowly in Bowers.

I should remind you right now that I am not an attorney, and that my interpretation of these primary documents is inflected by my own personal understanding of the United States Constitution. My source for the history of these decisions is Peter Irons, A People's History of the Supreme Court, which happens to be a particularly good read.

Originally posted to History for Kossacks on Fri May 03, 2013 at 03:40 PM PDT.

Also republished by Feminism, Pro-Feminism, Womanism: Feminist Issues, Ideas, & Activism and RaceGender DiscrimiNATION.

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