This is the 50th anniversary of Griswold v. Connecticut, and I’ve been thinking about the case as part of my research on the Bill of Rights. As I’ve mentioned in prior posts, Griswold is the only Supreme Court opinion that reads the first set of amendments holistically (“emanations” and “penumbras”), and Justice Douglas’s opinion makes some other statements about the Bill of Rights that have proved quite influential.
Let’s start with the holistic point. When the Court was issuing its liberty of contract cases from the 1890s until the 1930s, here’s what was not said: “The liberty of contract can be derived from various guarantees in the Bill of Rights. The Takings Clause protects property from expropriation without just compensation. The Second Amendment protects our right to contract to buy guns. The Third Amendment protects the home from a coerced rental of a room to a soldier. The Fourth Amendment protects papers (including contracts) from unreasonable searches and seizures. And then there is the Ninth Amendment.”
Why did the Court not approach the liberty of contract in this way? One reason is that there was no idea then that the first set of amendments should be read together or were special. Second, none of these rights (except for Takings) applied to the states, thus to use them to support an unwritten right that would bind the states would have been odd. The holistic reading in Griswold, in other words, was the product of the growth in the importance of the Bill of Rights by 1965 and the related success of incorporation.
Next, Griswold settled the longstanding debate about whether the Ninth Amendment was in the Bill of Rights. You can find several Supreme Court opinions before this that define the Bill of Rights as the first eight amendments. But Griswold says quite clearly that the Ninth is part of the holistic reading, and since then the Court has not revived the “first eight amendments” definition.
Finally, Griswold introduced the idea that rights or structural protections that predate the Bill of Rights must be really important because they are “older than the Bill of Rights.” This trope has appeared in many opinions since 1965, though I’m still researching that point.
More on the Bill of Rights tomorrow . . .