• INSIDE THE COURT
The Theory and Drafting of Justice Douglas's Opinion in Griswold v.
Connecticut
After the justices' conference, Chief Justice Earl Warren assigned Justice
Douglas the task of drafting an opinion to announce the Court's decision in
Griswold v. Connecticut. His initial draft, however, did not develop the
theory that a constitutional right of privacy was based on penumbrae of
various guarantees of the Bill of Rights, as eventually announced in
Griswold. Rather, Douglas sought to justify the decision based on earlier
cases recognizing a First Amendment right of associational privacy. The
analogy and precedents, he admitted, "do not decide this case. . . .
Marriage does not fit precisely any of the categories of First Amendment
rights. But it is a form of association as vital in the life of a man or a
woman as any other, and perhaps more so."
Both Black and Brennan strongly objected to Douglas's extravagant
reliance on First Amendment precedents. In a three-page letter, Brennan
detailed an alternative approach, as the following excerpt indicates:
I have read your draft opinion in Griswold v. Connecticut, and,
while I agree with a great deal of it, I should like to suggest a
substantial change in emphasis for your consideration. It goes without
saying, of course, that your rejection of any approach based on Lochner v.
New York is absolutely right. [In Lochner, a majority read into the
Fourteenth Amendment a "liberty of contract" to strike down economic
legislation. Although the Court later abandoned the doctrine of a liberty
of contract, Lochner continues to symbolize the original sin of
constitutional interpretation—that is, the Court's creation and enforcement
of unenumerated rights.] And I agree that the association of husband and
wife is not mentioned in the Bill of Rights, and that that is the obstacle
we must hurdle to effect a reversal in this case.
But I hesitate to bring the husband-wife relationship within the
right to association we have constructed in the First Amendment context. .
.. . In the First Amendment context, in situations like NAACP v. Alabama,
privacy is necessary to protect the capacity of an association for fruitful
advocacy. In the present context, it seems to me that we are really
interested in the privacy of married couples quite apart from any interest
in advocacy.... Instead of expanding the First Amendment right of
association to include marriage, why not say that what has been done for
the First Amendment can also be done for some of the other fundamental
guarantees of the Bill of Rights? In other words, where fundamentals are
concerned, the Bill of Rights guarantees are but expressions or examples of
those rights, and do not preclude applications or extensions of those
rights to situations unanticipated by the Framers.
The restriction on the dissemination and use of contraceptives,
Brennan explained,"would, on this reasoning, run afoul of a right to
privacy created out of the Fourth Amendment and the self-incrimination
clause of the Fifth, together with the Third, in much the same way as the
right of association has been created out of the First. Taken together,
those amendments indicate a fundamental concern with the sanctity of the
home and the right of the individual to be alone." "With this change of
emphasis," Brennan concluded, the opinion "would be most attractive to me
because it would require less departure from the specific guarantees and
because I think there is a better chance it will command a Court."
Douglas subsequently revised his opinion and based the right of
privacy on the penumbrae of the First, Third, Fourth, Fifth, Ninth, and
Fourteenth Amendments. In the end, his opinion was joined by only a
plurality of the Court. Justice Goldberg, joined by Chief Justice Warren
and Justice Brennan, wrote a separate concurring opinion, as did Justices
Harlan and White. Justices Black and Stewart each wrote separate dissenting
opinions.
Source: Library of Congress, William J. Brennan, Jr., Letter of April 24,
1965, in Justice William J. Brennan, Jr., Papers.
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SOURCE: CONSTITUTIONAL LAW AND POLITICS , Civil Rights and Civil Liberties,
Vol. 2, 5th Edition, David M. O'Brien, U. VA, W.W. Norton & Company N.Y.
(2003) pp 333-334
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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