Griswold v. Connecticut, 381 U.S.

479 (1965)
No. 496

Argued March 29-30, 1965

Decided June 7, 1965
381 U.S. 479

APPEAL FROM THE SUPREME COURT

OF ERRORS OF CONNECTICUT

Syllabus

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its
medical director, a licensed physician, were convicted as accessories for giving married persons
information and medical advice on how to prevent conception and, following examination,
prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it
a crime for any person to use any drug or article to prevent conception. Appellants claimed that
the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate
appellate court and the State's highest court affirmed the judgment.

Held:

1. Appellants have standing to assert the constitutional rights of the married people. Tileston v.
Ullman, 318 U. S. 44, distinguished. P. 381 U. S. 481.

2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy
which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 381 U. S. 481-486.

151 Conn. 544, 200 A.2d 479, reversed.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut.

Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served
as Medical Director for the League at its Center in New Haven -- a center open and operating
from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instruction, and medical advice to married persons as to the means of
preventing conception. They examined the wife and prescribed the best contraceptive device or
material for her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-196 of the
General Statutes of Connecticut (1958 rev.). The former provides:

"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 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any
offense may be prosecuted and punished as if he were the principal offender."

The appellants were found guilty as accessories and fined $100 each, against the claim that the
accessory statute, as so applied, violated the Fourteenth Amendment. The Appellate Division of
the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. 151 Conn. 544,
200 A.2d 479. We noted probable jurisdiction. 379 U.S. 926.

We think that appellants have standing to raise the constitutional rights of the married people
with whom they had a professional relationship. Tileston v. Ullman, 318 U. S. 44, is different, for
there the plaintiff seeking to represent others asked for a declaratory Judgment. In that situation,
we thought that the requirements of standing should be strict, lest the standards of "case or
controversy" in Article III of the Constitution become blurred. Here, those doubts are removed
by reason of a criminal conviction for serving married couples in violation of an aiding-and-
abetting statute. Certainly, the accessory should have standing to assert that the offense which
he is charged with assisting is not, or cannot constitutionally be, a crime.

This case is more akin to Truax v. Raich, 239 U. S. 33, where an employee was permitted to
assert the rights of his employer; to Pierce v. Society of Sisters, 268 U. S. 510, where the
owners of private schools were entitled to assert the rights of potential pupils and their parents,
and to Barrows v. Jackson, 346 U. S. 249, where a white defendant, party to a racially restrictive
covenant, who was being sued for damages by the covenantors because she had conveyed her
property to Negroes, was allowed to raise the issue that enforcement of the covenant violated
the rights of prospective Negro purchasers to equal protection, although no Negro was a party
to the suit. And see Meyer v. Nebraska, 262 U. S. 390; Adler v. Board of Education, 342 U. S.
485; NAACP v. Alabama, 357 U. S. 449; NAACP v. Button, 371 U. S. 415. The rights of
husband and wife, pressed here, are likely to be diluted or adversely affected unless those
rights are considered in a suit involving those who have this kind of confidential relation to them.

Coming to the merits, we are met with a wide range of questions that implicate the Due Process
Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v.
New York, 198 U. S. 45, should be our guide. But we decline that invitation, as we did in West
Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v.
Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v.
Empire Storage Co., 336 U. S. 490. We do not sit as a super-legislature to determine the
wisdom, need, and propriety of laws that touch economic problems, business affairs, or social
conditions. This law, however, operates directly on an intimate relation of husband and wife and
their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right
to educate a child in a school of the parents' choice -- whether public or private or parochial -- is
also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet
the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is
made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer
v. Nebraska, supra, the same dignity is given the right to study the German language in a
private school. In other words, the State may not, consistently with the spirit of the First
Amendment, contract the spectrum of available knowledge. The right of freedom of speech and
press includes not only the right to utter or to print, but the right to distribute, the right to receive,
the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry,
freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S.
195) -- indeed, the freedom of the entire university community. Sweezy v. New Hampshire, 354
U. S. 234, 354 U. S. 249-250, 354 U. S. 261-263; Barenblatt v. United States, 360 U. S. 109,
360 U. S. 112; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369. Without those peripheral rights,
the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the
Meyer cases.

In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the "freedom to associate
and privacy in one's associations," noting that freedom of association was a peripheral First
Amendment right. Disclosure of membership lists of a constitutionally valid association, we held,
was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's
members of their right to freedom of association."

Ibid. In other words, the First Amendment has a penumbra where privacy is protected from
governmental intrusion. In like context, we have protected forms of "association" that are not
political in the customary sense, but pertain to the social, legal, and economic benefit of the
members. NAACP v. Button, 371 U. S. 415, 371 U. S. 430-431. In Schware v. Board of Bar
Examiners, 353 U. S. 232, we held it not permissible to bar a lawyer from practice because he
had once been a member of the Communist Party. The man's "association with that Party" was
not shown to be "anything more than a political faith in a political party" (id. at 353 U. S. 244),
and was not action of a kind proving bad moral character. Id. at 353 U. S. 245-246.

Those cases involved more than the "right of assembly" -- a right that extends to all, irrespective
of their race or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of "association," like the
right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to attend a
meeting; it includes the right to express one's attitudes or philosophies by membership in a
group or by affiliation with it or by other lawful means. Association in that context is a form of
expression of opinion, and, while it is not expressly included in the First Amendment, its
existence is necessary in making the express guarantees fully meaningful.

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. See Poe
v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). 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."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 116
U. S. 630, as protection against all governmental invasions "of the sanctity of a man's home and
the privacies of life." * We recently referred
in Mapp v. Ohio, 367 U. S. 643, 367 U. S. 656, to the Fourth Amendment as creating a "right to
privacy, no less important than any other right carefully an particularly reserved to the people."
See Beaney, The Constitutional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to
be Let Alone, 55 Nw.U.L.Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See,
e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S. 644; Public Utilities Comm'n
v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139;
Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These
cases bear witness that the right of privacy which presses for recognition here is a legitimate
one.

The present case, then, concerns a relationship lying within the zone of privacy created by
several fundamental constitutional guarantees. And it concerns a law which, in forbidding the
use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its
goals by means having a maximum destructive impact upon that relationship. Such a law
cannot stand in light of the familiar principle, so often applied by this Court, that a

"governmental purpose to control or prevent activities constitutionally subject to state regulation

may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms."

NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307. Would we allow the police to search the
sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very
idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights -- older than our political parties,
older than our school system. Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.

Reversed.

* The Court said in full about this right of privacy:

"The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How.St.Tr.
1029] affect the very essence of constitutional liberty and security. They reach farther than the
concrete form of the case then before the court, with its adventitious circumstances; they apply
to all invasions on the part of the government and its employes of the sanctity of a man's home
and the privacies of life. It is not the breaking of his doors, and the rummaging of his
drawers, that constitutes the essence of the offence; but it is the invasion of his
indefeasible right of personal security, personal liberty and private property, where that
right has never been forfeited by his conviction of some public offence -- it is the invasion
of this sacred right which underlies and constitutes the essence of Lord Camden's
judgment. Breaking into a house and opening boxes and drawers are circumstances of
aggravation; but any forcible and compulsory extortion of a man's own testimony or of his
private papers to be used as evidence to convict him of crime or to forfeit his goods is within the
condemnation of that judgment. In this regard, the Fourth and Fifth Amendments run almost into
each other."

116 U.S. at 116 U. S. 630.

MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join,
concurring.

I agree with the Court that Connecticut's birth control law unconstitutionally intrudes upon
the right of marital privacy, and I join in its opinion and judgment. Although I have not
accepted the view that "due process," as used in the Fourteenth Amendment, incorporates all of
the first eight Amendments (see my concurring opinion in Pointer v. Texas, 380 U. S. 400, 380
U. S. 410, and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen v. Hurley, 366 U. S.
117, 366 U. S. 154), I do agree that the concept of liberty protects those personal rights
that are fundamental, and is not confined to the specific terms of the Bill of Rights. 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, [Footnote
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. In reaching the conclusion that the right of
marital privacy is protected as being within the protected penumbra of specific guarantees of the
Bill of Rights, the Court refers to the Ninth Amendment, ante at 381 U. S. 484. I add these
words to emphasize the relevance of that Amendment to the Court's holding.

The Court stated many years ago that the Due Process Clause protects those liberties that are
"so rooted in the traditions and conscience of our people as to be ranked as fundamental."
Snyder v. Massachusetts, 291 U. S. 7, 291 U. S. 105. In Gitlow v. New York, 268 U. S. 652, 268
U. S. 666, the Court said:

"For present purposes, we may and do assume that freedom of speech and of the press --
which are protected by the First Amendment from abridgment by Congress -- are among the
fundamental personal rights and 'liberties' protected by the due process clause of the
Fourteenth Amendment from impairment by the States."

(Emphasis added.)

And, in Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399, the Court, referring to the Fourteenth
Amendment, stated:

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the
term has received much consideration, and some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom from bodily restraint, but also [for
example,] the right . . . to marry, establish a home and bring up children. . . ."

This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and
applies to the States those specifics of the first eight amendments which express fundamental
personal rights. [Footnote 2] 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. The Ninth Amendment
reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." The Amendment is almost entirely the work of James
Madison. It was introduced in Congress by him and passed the House and Senate with little or
no debate and virtually no change in language. It was proffered to quiet expressed fears that a
bill of specifically enumerated rights [Footnote 3] could not be sufficiently broad to cover all
essential rights, and that the specific mention of certain rights would be interpreted as a denial
that others were protected. [Footnote 4]

In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights that, by enumerating particular exceptions to
the grant of power, it would disparage those rights which were not placed in that enumeration,
and it might follow, by implication, that those rights which were not singled out were intended to
be assigned into the hands of the General Government and were consequently insecure. This is
one of the most plausible arguments I have ever heard urged against the admission of a bill of
rights into this system, but I conceive that it may be guarded against. I have attempted it, as
gentlemen may see by turning to the last clause of the fourth resolution [the Ninth
Amendment]."

I Annals of Congress 439 (Gales and Seaton ed. 1834). Mr. Justice Story wrote of this argument
against a bill of rights and the meaning of the Ninth Amendment:

"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or
might lead to argumentative implications in favor of other powers, it might be sufficient to say
that such a course of reasoning could never be sustained upon any solid basis. . . . But a
conclusive answer is that such an attempt may be interdicted (as it has been) by a positive
declaration in such a bill of rights that the enumeration of certain rights shall not be construed to
deny or disparage others retained by the people."

II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891). He
further stated, referring to the Ninth Amendment:

"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of
the well known maxim that an affirmation in particular cases implies a negation in all others,
and, e converso, that a negation in particular cases implies an affirmation in all others."

Id. at 651. These statements of Madison and Story make clear that 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. [Footnote 5]

While this Court has had little occasion to interpret the Ninth Amendment, [Footnote 6] "[i]t
cannot be presumed that any clause in the constitution is intended to be without effect."
Marbury v. Madison, 1 Cranch 137, 5 U. S. 174. In interpreting the Constitution, "real effect
should be given to all the words it uses." Myers v. United States, 272 U. S. 52, 272 U. S. 151.
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 "[t]he enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people." (Emphasis
added.)

A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow

"broaden[s] the powers of this Court." Post at 381 U. S. 520. With all due respect, I believe that
it misses the import of what I am saying. I do not take the position of my Brother BLACK in his
dissent in Adamson v. California, 332 U. S. 46, 332 U. S. 68, that the entire Bill of Rights is
incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth
Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the
Ninth Amendment constitutes an independent source of rights protected from infringement by
either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of
the Constitution's authors that fundamental rights exist that are not expressly enumerated in the
first eight amendments, and an intent that the list of rights included there not be deemed
exhaustive. As any student of this Court's opinions knows, this Court has held, often
unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal
liberties from abridgment by the Federal Government or the States. See, e.g., Bolling v. Sharpe,
347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116,
Cantwell v. Connecticut, 310 U. S. 296; NAACP v. Alabama, 357 U. S. 449; Gideon v.
Wainwright, 372 U. S. 335; New York Times Co. v. Sullivan, 376 U. S. 254. 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.

Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a
case dealing with a State's infringement of a fundamental right. While the Ninth Amendment --
and indeed the entire Bill of Rights -- originally concerned restrictions upon federal power, the
subsequently enacted Fourteenth Amendment prohibits the States as well from abridging
fundamental personal liberties. And the Ninth Amendment, in indicating that not all such liberties
are specifically mentioned in the first eight amendments, is surely relevant in showing the
existence of other fundamental personal rights, now protected from state, as well as federal,
infringement. In sum, the Ninth Amendment simply lends strong support to the view that the
"liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal
Government or the States is not restricted to rights specifically mentioned in the first eight
amendments. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 330 U.S. 94-95.

In determining which rights are fundamental, judges are not left at large to decide cases in light
of their personal and private notions. Rather, they must look to the "traditions and [collective]
conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be
ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105. The inquiry is
whether a right involved

"is of such a character that it cannot be denied without violating those 'fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions.' . . ."

Powell v. Alabama, 287 U. S. 45, 287 U. S. 67. "Liberty" also "gains content from the
emanations of . . . specific [constitutional] guarantees," and "from experience with the
requirements of a free society." Poe v. Ullman, 367 U. S. 497, 367 U. S. 517 (dissenting opinion
of MR. JUSTICE DOUGLAS). [Footnote 7]

I agree fully with the Court that, applying these tests, the right of privacy is a fundamental
personal right, emanating "from the totality of the constitutional scheme under which we live."
Id. at 367 U. S. 521. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U. S.
438, 277 U. S. 478, comprehensively summarized the principles underlying the Constitution's
guarantees of privacy:

"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope.
The makers of our Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man's spiritual nature of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found
in material things. They sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the Government, the right to be let
alone -- the most comprehensive of rights and the right most valued by civilized men. "

The Connecticut statutes here involved deal with a particularly important and sensitive area of
privacy -- that of the marital relation and the marital home. This Court recognized in Meyer v.
Nebraska, supra, that the right "to marry, establish a home and bring up children" was an
essential part of the liberty guaranteed by the Fourteenth Amendment. 262 U.S. at 262 U. S.
399. In Pierce v. Society of Sisters, 268 U. S. 510, the Court held unconstitutional an Oregon
Act which forbade parents from sending their children to private schools because such an act
"unreasonably interferes with the liberty of parents and guardians to direct the upbringing and
education of children under their control." 268 U.S. at 268 U. S. 534-535. As this Court said in
Prince v. Massachusetts, 321 U. S. 158, at 321 U. S. 166, the Meyer and Pierce decisions
"have respected the private realm of family life which the state cannot enter."

I agree with MR. JUSTICE HARLAN's statement in his dissenting opinion in Poe v. Ullman, 367
U. S. 497, 367 U. S. 551-552:

"Certainly the safeguarding of the home does not follow merely from the sanctity of property
rights. The home derives its preeminence as the seat of family life. And the integrity of that life is
something so fundamental that it has been found to draw to its protection the principles of more
than one explicitly granted Constitutional right. . . . Of this whole 'private realm of family life,' it is
difficult to imagine what is more private or more intimate than a husband and wife's marital
relations."

The entire fabric of the Constitution and the purposes that clearly underlie its specific
guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of
similar order and magnitude as the fundamental rights specifically protected.

Although the Constitution does not speak in so many words of the right of privacy in marriage, I
cannot believe that it offers these fundamental rights no protection. The fact that no particular
provision of the Constitution explicitly forbids the State from disrupting the traditional relation of
the family -- a relation as old and as fundamental as our entire civilization -- surely does not
show that the Government was meant to have the power to do so. Rather, as the Ninth
Amendment expressly recognizes, there are fundamental personal rights such as this one,
which are protected from abridgment by the Government, though not specifically mentioned in
the Constitution.
My Brother STEWART, while characterizing the Connecticut birth control law as "an
uncommonly silly law," post at 381 U. S. 527, would nevertheless let it stand on the ground that
it is not for the courts to "substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws.'" Post at 381 U. S. 528. Elsewhere, I have
stated that,

"[w]hile I quite agree with Mr. Justice Brandeis that . . . 'a . . . State may . . . serve as a
laboratory, and try novel social and economic experiments,' New State Ice Co. v. Liebmann,
285 U. S. 262, 285 U. S. 280, 285 U. S. 311 (dissenting opinion), I do not believe that this
includes the power to experiment with the fundamental liberties of citizens. . . . [Footnote 8]"

The vice of the dissenters' views is that it would permit such experimentation by the States in
the area of the fundamental personal rights of its citizens. I cannot agree that the Constitution
grants such power either to the States or to the Federal Government.

The logic of the dissents would sanction federal or state legislation that seems to me even more
plainly unconstitutional than the statute before us. Surely the Government, absent a showing of
a compelling subordinating state interest, could not decree that all husbands and wives must be
sterilized after two children have been born to them. Yet, by their reasoning, such an invasion of
marital privacy would not be subject to constitutional challenge, because, while it might be
"silly," no provision of the Constitution specifically prevents the Government from curtailing the
marital right to bear children and raise a family. While it may shock some of my Brethren that
the Court today holds that the Constitution protects the right of marital privacy, in my view, it is
far more shocking to believe that the personal liberty guaranteed by the Constitution does not
include protection against such totalitarian limitation of family size, which is at complete variance
with our constitutional concepts. Yet if, upon a showing of a slender basis of rationality, a law
outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law
requiring compulsory birth control also would seem to be valid. In my view, however, both types
of law would unjustifiably intrude upon rights of marital privacy which are constitutionally
protected.

In a long series of cases, this Court has held that, where fundamental personal liberties are
involved, they may not be abridged by the States simply on a showing that a regulatory statute
has some rational relationship to the effectuation of a proper state purpose.

"Where there is a significant encroachment upon personal liberty, the State may prevail only
upon showing a subordinating interest which is compelling,"

Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. The law must be shown "necessary, and not
merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v.
Florida, 379 U. S. 184, 379 U. S. 196. See Schneider v. Irvington, 308 U. S. 147, 308 U. S. 161.

Although the Connecticut birth control law obviously encroaches upon a fundamental personal
liberty, the State does not show that the law serves any "subordinating [state] interest which is
compelling," or that it is "necessary

. . . to the accomplishment of a permissible state policy." The State, at most, argues that there is
some rational relation between this statute and what is admittedly a legitimate subject of state
concern -- the discouraging of extramarital relations. It says that preventing the use of birth
control devices by married persons helps prevent the indulgence by some in such extramarital
relations. The rationality of this justification is dubious, particularly in light of the admitted
widespread availability to all persons in the State of Connecticut. unmarried as well as married,
of birth control devices for the prevention of disease, as distinguished from the prevention of
conception, see Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582. But, in any event, it is clear that
the state interest in safeguarding marital fidelity can be served by a more discriminately tailored
statute which does not, like the present one, sweep unnecessarily broadly, reaching far beyond
the evil sought to be dealt with and intruding upon the privacy of all married couples. See
Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 514; NAACP v. Alabama, 377 U. S.
288, 377 U. S. 307-308; McLaughlin v. Florida, supra, at 379 U. S. 196. Here, as elsewhere,
"[p]recision of regulation must be the touchstone in an area so closely touching our most
precious freedoms." NAACP v. Button, 371 U. S. 415, 371 U. S. 438. The State of Connecticut
does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and
fornication. See Conn.Gen.Stat. §§ 53-218, 53-219 et seq. These statutes demonstrate that
means for achieving the same basic purpose of protecting marital fidelity are available to
Connecticut without the need to "invade the area of protected freedoms." NAACP v. Alabama,
supra, at 377 U. S. 307. See McLaughlin v. Florida, supra, at 379 U. S. 196.

Finally, it should be said of the Court's holding today that it in no way interferes with a State's
proper regulation of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in
his dissenting opinion in Poe v. Ullman, supra, at 367 U. S. 553.

"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . , but the
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.

[Footnote 1]

My Brother STEWART dissents on the ground that he

"can find no . . . 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."

Post at 381 U. S. 530. He would require a more explicit guarantee than the one which the Court
derives from several constitutional amendments. This Court, however, has never held that the
Bill of Rights or the Fourteenth Amendment protects only those rights that the Constitution
specifically mentions by name. See, e.g., Bolling v. Sharpe, 347 U. S. 497; Aptheker v.
Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116; Carrington v. Rash, 380 U. S.
89, 380 U. S. 96; Schware v. Board of Bar Examiners, 353 U. S. 232; NAACP v. Alabama, 360
U. S. 240; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. To the
contrary, this Court, for example, in Bolling v. Sharpe, supra, while recognizing that the Fifth
Amendment does not contain the "explicit safeguard" of an equal protection clause, id. at 347 U.
S. 499, nevertheless derived an equal protection principle from that Amendment's Due Process
Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that the Fourteenth
Amendment protects from arbitrary state action the right to pursue an occupation, such as the
practice of law.

[Footnote 2]

See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Gitlow v. New York, supra;
Cantwell v. Connecticut, 310 U. S. 296; Wolf v. Colorado, 338 U. S. 25; Robinson v. California,
370 U. S. 660; Gideon v. Wainwright, 372 U. S. 335; Malloy v. Hogan, 378 U. S. 1; Pointer v.
Texas, supra; Griffin v. California, 380 U. S. 609.

[Footnote 3]

Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact
that "no language is so copious as to supply words and phrases for every complex idea." The
Federalist, No. 37 (Cooke ed.1961) at 236.

[Footnote 4]

Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary,
because the Federal Government was a government of delegated powers, and it was not
granted the power to intrude upon fundamental personal rights. The Federalist, No. 84 (Cooke
ed.1961), at 578-579. He also argued,

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are
contended for, are not only unnecessary in the proposed constitution, but would even be
dangerous. They would contain various exceptions to powers which are not granted, and, on
this very account, would afford a colourable pretext to claim more than were granted. For why
declare that things shall not be done which there is no power to do? Why, for instance, should it
be said that the liberty of the press shall not be restrained when no power is given by which
restrictions may be imposed? I will not contend that such a provision would confer a regulating
power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for
claiming that power."

Id. at 579. The Ninth Amendment, and the Tenth Amendment, which provides,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people,

were apparently also designed in part to meet the above-quoted argument of Hamilton.

[Footnote 5]

The Tenth Amendment similarly made clear that the States and the people retained all those
powers not expressly delegated to the Federal Government.

[Footnote 6]
This Amendment has been referred to as "The Forgotten Ninth Amendment," in a book with that
title by Bennett B. Patterson (1955). Other commentary on the Ninth Amendment includes
Redlich, Are There "Certain Rights . . . Retained by the People"? 37 N.Y.U.L.Rev. 787 (1962),
and Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind.L.J. 309 (1936). As far as
I am aware, until today, this Court has referred to the Ninth Amendment only in United Public
Workers v. Mitchell, 330 U. S. 75, 330 U.S. 94-95; Tennessee Electric Power Co. v. TVA, 306
U. S. 118, 306 U. S. 143-144, and Ashwander v. TVA, 297 U. S. 288, 297 U. S. 330-331. See
also Calder v. Bull, 3 Dall. 386, 3 U. S. 388; Loan Assn. v. Topeka, 20 Wall. 655, 87 U. S. 662-
663.

In United Public Workers v. Mitchell, supra, at 330 U.S. 94-95, the Court stated:

"We accept appellants' contention that the nature of political rights reserved to the people by the
Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the
right of a citizen to act as a party official or worker to further his own political views. Thus, we
have a measure of interference by the Hatch Act and the Rules with what otherwise would be
the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look
upon due process as a guarantee of freedom in those fields, there is a corresponding
impairment of that right under the Fifth Amendment."

[Footnote 7]

In light of the tests enunciated in these cases, it cannot be said that a judge's responsibility to
determine whether a right is basic and fundamental in this sense vests him with unrestricted
personal discretion. In fact, a hesitancy to allow too broad a discretion was a substantial reason
leading me to conclude, in Pointer v. Texas, supra, at 380 U. S. 413-414, that those rights
absorbed by the Fourteenth Amendment and applied to the States because they are
fundamental apply with equal force and to the same extent against both federal and state
governments. In Pointer, I said that the contrary view would require

"this Court to make the extremely subjective and excessively discretionary determination as to
whether a practice, forbidden the Federal Government by a fundamental constitutional
guarantee, is, as viewed in the factual circumstances surrounding each individual case,
sufficiently repugnant to the notion of due process as to be forbidden the States."

Id. at 380 U. S. 413.

[Footnote 8]

Pointer v. Texas, supra at 380 U. S. 413. See also the discussion of my Brother DOUGLAS,
Poe v. Ullman, supra, at 367 U. S. 517-518 (dissenting opinion).

MR. JUSTICE HARLAN, concurring in the judgment.

I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The
reason is that it seems to me to evince an approach to this case very much like that taken by my
Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth
Amendment does not touch this Connecticut statute unless the enactment is found to violate
some right assured by the letter or penumbra of the Bill of Rights.
Page 381 U. S. 500

In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may
be used to restrict the reach of Fourteenth Amendment Due Process. For me, this is just as
unacceptable constitutional doctrine as is the use of the "incorporation" approach to impose
upon the States all the requirements of the Bill of Rights as found in the provisions of the first
eight amendments and in the decisions of this Court interpreting them. See, e.g., my concurring
opinions in Pointer v. Texas, 380 U. S. 400, 380 U. S. 408, and Griffin v. California, 380 U. S.
609, 380 U. S. 615, and my dissenting opinion in Poe v. Ullman, 367 U. S. 497, 367 U. S. 522,
at pp. 381 U. S. 539-545.

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute
infringes the Due Process Clause of the Fourteenth Amendment because the enactment
violates basic values "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S.
319, 302 U. S. 325. For reasons stated at length in my dissenting opinion in Poe v. Ullman,
supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of
the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The
Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

A further observation seems in order respecting the justification of my Brothers BLACK and
STEWART for their "incorporation" approach to this case. Their approach does not rest on
historical reasons, which are, of course, wholly lacking (see Fairman, Does the Fourteenth
Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949)),
but on the thesis that, by limiting the content of the Due Process Clause of the Fourteenth
Amendment to the protection of rights which can be found elsewhere in the Constitution, in this
instance, in the Bill of Rights, judges will thus be confined to "interpretation" of specific
constitutional

Page 381 U. S. 501

provisions, and will thereby be restrained from introducing their own notions of constitutional
right and wrong into the "vague contours of the Due Process Clause." Rochin v. California, 342
U. S. 165, 342 U. S. 170. While I could not more heartily agree that judicial "self-restraint" is an
indispensable ingredient of sound constitutional adjudication, I do submit that the formula
suggested for achieving it is more hollow than real. "Specific" provisions of the Constitution, no
less than "due process," lend themselves as readily to "personal" interpretations by judges
whose constitutional outlook is simply to keep the Constitution in supposed "tune with the times"
(post, p. 381 U. S. 522). Need one go further than to recall last Term's reapportionment cases,
Wesberry v. Sanders, 376 U. S. 1, and Reynolds v. Sims, 377 U. S. 533, where a majority of the
Court "interpreted" "by the People" (Art. I, § 2) and "equal protection" (Amdt. 14) to command
"one person, one vote," an interpretation that was made in the face of irrefutable and still
unanswered history to the contrary? See my dissenting opinions in those cases, 376 U.S. at 376
U. S. 20; 377 U.S. at 377 U.S. 589.

Judicial self-restraint will not, I suggest, be brought about in the "due process" area by the
historically unfounded incorporation formula long advanced by my Brother BLACK, and now in
part espoused by my Brother STEWART. It will be achieved in this area, as in other
constitutional areas, only by continual insistence upon respect for the teachings of history, solid
recognition of the basic values that underlie our society, and wise appreciation of the great roles
that the doctrines of federalism and separation of powers have played in establishing and
preserving American freedoms. See Adamson v. California, 332 U. S. 46, 332 U. S. 59 (Mr.
Justice Frankfurter, concurring). Adherence to these principles will not, of course, obviate all
constitutional differences of opinion among judges, nor should it. Their continued recognition

Page 381 U. S. 502

will, however, go farther toward keeping most judges from roaming at large in the constitutional
field than will the interpolation into the Constitution of an artificial and largely illusory restriction
on the content of the Due Process Clause.*

* Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host of cases in
which the Court has recognized fundamental rights in the Fourteenth Amendment without
specific reliance upon the Bill of Rights. Post, p. 381 U. S. 512, n. 4.

MR. JUSTICE WHITE, concurring in the judgment.

In my view, this Connecticut law, as applied to married couples, deprives them of "liberty"
without due process of law, as that concept is used in the Fourteenth Amendment. I therefore
concur in the judgment of the Court reversing these convictions under Connecticut's aiding and
abetting statute.

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this
statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious
denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has
had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment
includes the right "to marry, establish a home and bring up children," Meyer v. Nebraska, 262 U.
S. 390, 262 U. S. 399, and "the liberty . . . to direct the upbringing and education of children,"
Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534-535, and that these are among "the
basic civil rights of man." Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These decisions
affirm that there is a "realm of family life which the state cannot enter" without substantial
justification. Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166. Surely the right invoked in
this case, to be free of regulation of the intimacies of

Page 381 U. S. 503

the marriage relationship,

come[s] to this Court with a momentum for respect lacking when appeal is made to liberties
which derive merely from shifting economic arrangements.

Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 95 (opinion of Frankfurter, J.).

The Connecticut anti-contraceptive statute deals rather substantially with this relationship. For it
forbids all married persons the right to use birth control devices, regardless of whether their use
is dictated by considerations of family planning, Trubek v. Ullman, 147 Conn. 633, 165 A.2d
158, health, or indeed even of life itself. Buxton v. Ullman, 147 Conn. 48, 156 A.2d 508. The
anti-use statute, together with the general aiding and abetting statute, prohibits doctors from
affording advice to married persons on proper and effective methods of birth control. Tileston v.
Ullman, 129 Conn. 84, 26 A.2d 582. And the clear effect of these statutes, as enforced, is to
deny disadvantaged citizens of Connecticut, those without either adequate knowledge or
resources to obtain private counseling, access to medical assistance and up-to-date information
in respect to proper methods of birth control. State v. Nelson, 126 Conn. 412, 11 A.2d 856;
State v. Griswold, 151 Conn. 544, 200 A.2d 479. In my view, a statute with these effects bears a
substantial burden of justification when attacked under the Fourteenth Amendment. Yick Wo v.
Hopkins, 118 U. S. 356; Skinner v. Oklahoma, 316 U. S. 535; Schware v. Board of Bar
Examiners, 353 U. S. 232; McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 192.

An examination of the justification offered, however, cannot be avoided by saying that the
Connecticut anti-use statute invades a protected area of privacy and association or that it
demeans the marriage relationship. The nature of the right invaded is pertinent, to be sure, for
statutes regulating sensitive areas of liberty do, under

Page 381 U. S. 504

the cases of this Court, require "strict scrutiny," Skinner v. Oklahoma, 316 U. S. 535, 316 U. S.
541, and "must be viewed in the light of less drastic means for achieving the same basic
purpose." Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488.

"Where there is a significant encroachment upon personal liberty, the State may prevail only
upon showing a subordinating interest which is compelling."

Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. See also McLaughlin v. Florida, 379 U. S.
184. But such statutes, if reasonably necessary for the effectuation of a legitimate and
substantial state interest, and not arbitrary or capricious in application, are not invalid under the
Due Process Clause. Zemel v. Rusk, 381 U. S. 1.*

Page 381 U. S. 505

As I read the opinions of the Connecticut courts and the argument of Connecticut in this Court,
the State claims but one justification for its anti-use statute. Cf. Allied Stores of Ohio v. Bowers,
358 U. S. 522, 358 U. S. 530; Martin v. Walton, 368 U. S. 25, 368 U. S. 28 (DOUGLAS, J.,
dissenting). There is no serious contention that Connecticut thinks the use of artificial or external
methods of contraception immoral or unwise in itself, or that the anti-use statute is founded
upon any policy of promoting population expansion. Rather, the statute is said to serve the
State's policy against all forms of promiscuous or illicit sexual relationships, be they premarital
or extramarital, concededly a permissible and legitimate legislative goal.

Without taking issue with the premise that the fear of conception operates as a deterrent to such
relationships in addition to the criminal proscriptions Connecticut has against such conduct, I
wholly fail to see how the ban on the use of contraceptives by married couples in any way
reinforces the State's ban on illicit sexual relationships. See Schware v. Board of Bar
Examiners, 353 U. S. 232, 353 U. S. 239. Connecticut does not bar the importation or
possession of contraceptive devices; they are not considered contraband material under state
law, State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863, and their availability
in that State is not seriously disputed. The only way Connecticut seeks to limit or control the
availability of such devices is through its general aiding and abetting statute, whose operation in
this context has

Page 381 U. S. 506

been quite obviously ineffective, and whose most serious use has been against birth control
clinics rendering advice to married, rather than unmarried, persons. Cf. Yick Wo v. Hopkins, 118
U. S. 356. Indeed, after over 80 years of the State's proscription of use, the legality of the sale
of such devices to prevent disease has never been expressly passed upon, although it appears
that sales have long occurred and have only infrequently been challenged. This "undeviating
policy . . . throughout all the long years . . . bespeaks more than prosecutorial paralysis." Poe v.
Ullman, 367 U. S. 497, 367 U. S. 502. Moreover, it would appear that the sale of contraceptives
to prevent disease is plainly legal under Connecticut law.

In these circumstances, one is rather hard pressed to explain how the ban on use by married
persons in any way prevents use of such devices by persons engaging in illicit sexual relations,
and thereby contributes to the State's policy against such relationships. Neither the state courts
nor the State before the bar of this Court has tendered such an explanation. It is purely fanciful
to believe that the broad proscription on use facilitates discovery of use by persons engaging in
a prohibited relationship, or for some other reason makes such use more unlikely, and thus can
be supported by any sort of administrative consideration. Perhaps the theory is that the flat ban
on use prevents married people from possessing contraceptives and, without the ready
availability of such devices for use in the marital relationship, there will be no or less temptation
to use them in extramarital ones. This reasoning rests on the premise that married people will
comply with the ban in regard to their marital relationship, notwithstanding total nonenforcement
in this context and apparent nonenforcibility, but will not comply with criminal statutes prohibiting
extramarital affairs and the anti-use statute in respect to illicit sexual relationships, a premise
whose validity has not been

Page 381 U. S. 507

demonstrated and whose intrinsic validity is not very evident. At most, the broad ban is of
marginal utility to the declared objective. A statute limiting its prohibition on use to persons
engaging in the prohibited relationship would serve the end posited by Connecticut in the same
way, and with the same effectiveness or ineffectiveness, as the broad anti-use statute under
attack in this case. I find nothing in this record justifying the sweeping scope of this statute, with
its telling effect on the freedoms of married persons, and therefore conclude that it deprives
such persons of liberty without due process of law.

* Dissenting opinions assert that the liberty guaranteed by the Due Process Clause is limited to
a guarantee against unduly vague statutes and against procedural unfairness at trial. Under this
view, the Court is without authority to ascertain whether a challenged statute, or its application,
has a permissible purpose, and whether the manner of regulation bears a rational or justifying
relationship to this purpose. A long line of cases makes very clear that this has not been the
view of this Court. Dent v. West Virginia, 129 U. S. 114; Jacobson v. Massachusetts, 197 U. S.
11; Douglas v. Noble, 261 U. S. 165; Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of
Sisters, 268 U. S. 510; Schware v. Board of Bar Examiners, 353 U. S. 232; Aptheker v.
Secretary of State, 378 U. S. 500; Zemel v. Rusk, 381 U. S. 1.

The traditional due process test was well articulated and applied in Schware v. Board of Bar
Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of
Rights.

"A State cannot exclude a person from the practice of law or from any other occupation in a
manner or for reasons that contravene the Due Process or Equal Protection Clause of the
Fourteenth Amendment. Dent v. West Virginia, 129 U. S. 114. Cf. Slochower v. Board of
Education, 350 U. S. 551; Wieman v. Updegraff, 344 U. S. 183. And see 60 U. S. 19 How. 9, 60
U. S. 13. A State can require high standards of qualification, such as good moral character or
proficiency in its law, before it admits an applicant to the bar, but any qualification must have a
rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261
U. S. 165; Cummings v. Missouri, 4 Wall. 277, 71 U. S. 319-320. Cf. Nebbia v. New York, 291
U. S. 502. Obviously an applicant could not be excluded merely because he was a Republican,
or a Negro, or a member of a particular church. Even in applying permissible standards, officers
of a State cannot exclude an applicant when there is no basis for their finding that he fails to
meet these standards, or when their action is invidiously discriminatory."

353 U.S. at 353 U. S. 238-239. Cf. Martin v. Walton, 368 U. S. 25, 368 U. S. 26 (DOUGLAS, J.,
dissenting).

MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.

I agree with my Brother STEWART's dissenting opinion. And, like him, I do not to any extent
whatever base my view that this Connecticut law is constitutional on a belief that the law is wise,
or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I
do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of
the majority and my Brothers HARLAN, WHITE and GOLDBERG, who, reciting reasons why it
is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent
strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or
by those of my concurring Brethren to which I cannot subscribe -- except their conclusion that
the evil qualities they see in the law make it unconstitutional.

Had the doctor defendant here, or even the nondoctor defendant, been convicted for doing
nothing more than expressing opinions to persons coming to the clinic that certain contraceptive
devices, medicines or practices would do them good and would be desirable, or for telling
people how devices could be used, I can think of no reasons at this time why their expressions
of views would not be

Page 381 U. S. 508

protected by the First and Fourteenth Amendments, which guarantee freedom of speech. Cf.
Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1; NAACP v.
Button, 371 U. S. 415. But speech is one thing; conduct and physical activities are quite
another. See, e.g., Cox v. Louisiana, 379 U. S. 536, 379 U. S. 554-555; Cox v. Louisiana, 379
U. S. 559, 379 U. S. 563-564; id. 379 U. S. 575-584 (concurring opinion); Giboney v. Empire
Storage & Ice Co., 336 U. S. 490; cf. Reynolds v. United States, 98 U. S. 145, 98 U. S. 163-164.
The two defendants here were active participants in an organization which gave physical
examinations to women, advised them what kind of contraceptive devices or medicines would
most likely be satisfactory for them, and then supplied the devices themselves, all for a
graduated scale of fees, based on the family income. Thus, these defendants admittedly
engaged with others in a planned course of conduct to help people violate the Connecticut law.
Merely because some speech was used in carrying on that conduct -- just as, in ordinary life,
some speech accompanies most kinds of conduct -- we are not, in my view, justified in holding
that the First Amendment forbids the State to punish their conduct. Strongly as I desire to
protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford
protection to the conduct of these defendants in violating the Connecticut law. What would be
the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have
said, quite another matter. The Court talks about a constitutional "right of privacy" as though
there is some constitutional provision or provisions forbidding any law ever to be passed which
might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in
certain specific constitutional provisions which are designed in part to protect privacy at certain
times and places with respect to certain activities. Such, for example, is the Fourth

Page 381 U. S. 509

Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles
that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is
to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights
provision should be given. The average man would very likely not have his feelings soothed any
more by having his property seized openly than by having it seized privately and by stealth. He
simply wants his property left alone. And a person can be just as much, if not more, irritated,
annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in
the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to
substitute for the crucial word or words of a constitutional guarantee another word or words,
more or less flexible and more or less restricted in meaning. This fact is well illustrated by the
use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's
guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and
ambiguous concept which can easily be shrunken in meaning but which can also, on the other
hand, easily be interpreted as a constitutional ban against many things other than searches and
seizures. I have expressed the view many times that First Amendment freedoms, for example,
have suffered from a failure of the courts to stick to the simple language of the First Amendment
in construing it, instead of invoking multitudes of words substituted for those the Framers used.
See, e.g., New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293 (concurring opinion);
cases collected in City of El Paso v. Simmons, 379 U. S. 497, 379 U. S. 517, n. 1 (dissenting
opinion); Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865. For these reasons, I get nowhere in this
case by talk about a constitutional "right of privacy" as an emanation from

Page 381 U. S. 510

one or more constitutional provisions. [Footnote 2/1] I like my privacy as well as the next one,
but I am nevertheless compelled to admit that government has a right to. invade it unless
prohibited by some specific constitutional provision. For these reasons, I cannot agree with the
Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for
invalidating the Connecticut law. Brothers HARLAN [Footnote 2/2] and WHITE would invalidate
it by reliance on the Due Process Clause of the Fourteenth Amendment, but Brother
GOLDBERG, while agreeing with Brother HARLAN, relies also on the Ninth Amendment. I have
no doubt that the Connecticut law could be applied in such a way as to abridge freedom of

Page 381 U. S. 511

speech and press, and therefore violate the First and Fourteenth Amendments. My
disagreement with the Court's opinion holding that there is such a violation here is a narrow
one, relating to the application of the First Amendment to the facts and circumstances of this
particular case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more
basic. I think that, if properly construed, neither the Due Process Clause nor the Ninth
Amendment, nor both together, could under any circumstances be a proper basis for
invalidating the Connecticut law. I discuss the due process and Ninth Amendment arguments
together because, on analysis, they turn out to be the same thing -- merely using different words
to claim for this Court and the federal judiciary power to invalidate any legislative act which the
judges find irrational, unreasonable or offensive.

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as
their opinions indicate, on the premise that this Court is vested with power to invalidate all state
laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's
belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is
offensive to a "sense of fairness and justice." [Footnote 2/3] If these formulas based on "natural
justice," or others which mean the same thing, [Footnote 2/4] are to prevail, they require judges
to determine

Page 381 U. S. 512

what is or is not constitutional on the basis of their own appraisal of what laws are unwise or
unnecessary. The power to make such decisions is, of course, that of a legislative body. Surely
it has to be admitted that no provision of the Constitution specifically gives such blanket power
to courts to exercise such a supervisory veto over the wisdom and value of legislative policies
and to hold unconstitutional those laws which they believe unwise or dangerous. I readily admit
that no legislative body, state or national, should pass laws that can justly be given any

Page 381 U. S. 513

of the invidious labels invoked as constitutional excuses to strike down state laws. But perhaps
it is not too much to say that no legislative body ever does pass laws without believing that they
will accomplish a sane, rational, wise and justifiable purpose. While I completely subscribe to
the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has
constitutional power to strike down statutes, state or federal, that violate commands of the
Federal Constitution, I do not believe that we are granted power by the Due Process Clause or
any other constitutional provision or provisions to measure constitutionality by our belief that
legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is
offensive to our own notions of "civilized standards of conduct." [Footnote 2/5] Such an
appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power
to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto
federal or state laws simply takes away from Congress and States the power to make laws
based on their own judgment of fairness and wisdom, and transfers that power to this Court for
ultimate determination -- a power which was specifically denied to federal courts by the
convention that framed the Constitution. [Footnote 2/6]

Page 381 U. S. 514

Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily, undoubtedly the
reasoning of two of them supports their result here -- as would that of a number of others which
they do not bother to name, e.g.,
Page 381 U. S. 515

Lochner v. New York, 198 U. S. 45, Coppage v. Kansas, 236 U. S. 1, Jay Burns Baking Co. v.
Bryan, 264 U. S. 504, and Adkins v. Children's Hospital, 261 U. S. 525. The two they do cite
and quote from, Meyer v. Nebraska, 262 U. S. 390, and Pierce v. Society of Sisters, 268 U. S.
510, were both decided in opinions by Mr. Justice McReynolds which elaborated the same
natural law due process philosophy found in Lochner v. New York, supra, one of the cases on
which he relied in Meyer, along with such other long-discredited decisions as, e.g., Adams v.
Tanner, 244 U. S. 590, and Adkins v. Children's Hospital, supra. Meyer held unconstitutional, as
an "arbitrary" and unreasonable interference with the right of a teacher to carry on his
occupation and of parents to hire him, a

Page 381 U. S. 516

state law forbidding the teaching of modern foreign languages to young children in the schools.
[Footnote 2/7] And in Pierce, relying principally on Meyer, Mr. Justice McReynolds said that a
state law requiring that all children attend public schools interfered unconstitutionally with the
property rights of private school corporations because it was an "arbitrary, unreasonable and
unlawful interference" which threatened "destruction of their business and property." 268 U.S. at
268 U. S. 536. Without expressing an opinion as to whether either of those cases reached a
correct result in light of our later decisions applying the First Amendment to the States through
the Fourteenth, [Footnote 2/8] I merely point out that the reasoning stated in Meyer and Pierce
was the same natural law due process philosophy which many later opinions repudiated, and
which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases, such as
NAACP v. Button, 371 U. S. 415, Shelton v. Tucker, 364 U. S. 479, and Schneider v. State, 308
U. S. 147, which held that States in regulating conduct could not, consistently with the First
Amendment as applied to them by the Fourteenth, pass unnecessarily broad laws which might
indirectly infringe on First Amendment freedoms. [Footnote 2/9] See Brotherhood of Railroad
Trainmen v. Virginia ex rel.

Page 381 U. S. 517

Virginia State Bar, 377 U. S. 1, 377 U. S. 7-8. [Footnote 2/10] Brothers WHITE and GOLDBERG
now apparently would start from this requirement that laws be narrowly drafted so as not to
curtail free speech and assembly, and extend it limitlessly to require States to justify any law
restricting "liberty" as my Brethren define "liberty." This would mean at the

Page 381 U. S. 518

very least, I suppose, that every state criminal statute -- since it must inevitably curtail "liberty" to
some extent -- would be suspect, and would have to be Justified to this Court. [Footnote 2/11]

My Brother GOLDBERG has adopted the recent discovery [Footnote 2/12] that the Ninth
Amendment as well as the Due Process Clause can be used by this Court as authority to strike
down all state legislation which this Court thinks

Page 381 U. S. 519

violates "fundamental principles of liberty and justice," or is contrary to the "traditions and
[collective] conscience of our people." He also states, without proof satisfactory to me, that, in
making decisions on this basis, judges will not consider "their personal and private notions."
One may ask how they can avoid considering them. Our Court certainly has no machinery with
which to take a Gallup Poll. [Footnote 2/13] And the scientific miracles of this age have not yet
produced a gadget which the Court can use to determine what traditions are rooted in the
"[collective] conscience of our people." Moreover, one would certainly have to look far beyond
the language of the Ninth Amendment [Footnote 2/14] to find that the Framers vested in this
Court any such awesome veto powers over lawmaking, either by the States or by the Congress.
Nor does anything in the history of the Amendment offer any support for such a shocking
doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other
way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment
was intended to protect against the idea that, "by enumerating particular exceptions to the grant
of power" to the Federal Government, "those rights which were not singled out were intended to
be assigned into the hands of the General Government [the United States], and were
consequently

Page 381 U. S. 520

insecure." [Footnote 2/15] That Amendment was passed not to broaden the powers of this Court
or any other department of "the General Government," but, as every student of history knows, to
assure the people that the Constitution in all its provisions was intended to limit the Federal
Government to the powers granted expressly or by necessary implication. If any broad,
unlimited power to hold laws unconstitutional because they offend what this Court conceives to
be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment,
the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the
Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps
responsible for the peculiar phenomenon that, for a period of a century and a half, no serious
suggestion was ever made that the Ninth Amendment, enacted to protect state powers against
federal invasion, could be used as a weapon of federal power to prevent state legislatures from
passing laws they consider appropriate to govern local affairs. Use of any such broad,
unbounded judicial authority would make of this Court's members a day-to-day constitutional
convention.

I repeat, so as not to be misunderstood, that this 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

Page 381 U. S. 521

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. [Footnote 2/16]
Page 381 U. S. 522

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. And so I cannot rely on the
Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law
concept as a reason for striking down this state law. The Due Process Clause, with an "arbitrary
and capricious" or "shocking to the conscience" formula, was liberally used by this Court to
strike down economic legislation in the early decades of this century, threatening, many people
thought, the tranquility and stability of the Nation. See, e.g., Lochner v. New York, 198 U. S. 45.
That formula, based on subjective considerations of "natural justice," is no less dangerous when
used to enforce this Court's views about personal rights than those about economic rights. I had
thought that we had laid that formula, as a means for striking down state legislation, to rest once
and for all in cases like West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska ex
rel. Western Reference & Bond Assn., 313 U. S. 236, and many other

Page 381 U. S. 523

opinions. [Footnote 2/17] See also Lochner v. New York, 198 U. S. 45, 198 U. S. 74 (Holmes,
J., dissenting).

In Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 730, this Court two years ago said, in an
opinion joined by all the Justices but one, [Footnote 2/18] that

"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases -- that due
process authorizes courts to hold laws unconstitutional when they believe the legislature has
acted unwisely -- has long since been discarded. We have returned to the original constitutional
proposition that courts do not substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws."

And only six weeks ago, without even bothering to hear argument, this Court overruled Tyson &
Brother v. Banton, 273 U. S. 418, which had held state laws regulating ticket brokers to be a
denial of due process of law. [Footnote 2/19] Gold

Page 381 U. S. 524

v. DiCarlo, 380 U. S. 520. I find April's holding hard to square with what my concurring Brethren
urge today. They would reinstate the Lochner, Coppage, Adkins, Burns line of cases, cases
from which this Court recoiled after the 1930's, and which had been, I thought, totally
discredited until now. Apparently my Brethren have less quarrel with state economic regulations
than former Justices of their persuasion had. But any limitation upon their using the natural law
due process philosophy to strike down any state law, dealing with any activity whatever, will
obviously be only self-imposed. [Footnote 2/20]
In 1798, when this Court was asked to hold another Connecticut law unconstitutional, Justice
Iredell said:

"[I]t has been the policy of all the American states which have individually framed their state
constitutions since the revolution, and of the people of the United States when they framed the
Federal Constitution, to define with precision the objects of the legislative power, and to restrain
its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature
of a state, violates those constitutional provisions, it is unquestionably void, though I admit that,
as the authority to declare it void is of a delicate and awful nature, the Court will never resort to
that authority but in a clear and urgent case. If, on the other hand, the Legislature of the Union,
or the Legislature of any member of the Union, shall pass a law within the

Page 381 U. S. 525

general scope of their constitutional power, the Court cannot pronounce it to be void, merely
because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural
justice are regulated by no fixed standard: the ablest and the purest men have differed upon the
subject, and all that the Court could properly say in such an event would be that the Legislature
(possessed of an equal right of opinion) had passed an act which, in the opinion of the judges,
was inconsistent with the abstract principles of natural justice."

Calder v. Bull, 3 Dall. 386, 3 U. S. 399 (emphasis in original). I would adhere to that
constitutional philosophy in passing on this Connecticut law today. I am not persuaded to
deviate from the view which I stated in 1947 in Adamson v. California, 332 U. S. 46, 332 U. S.
90-92 (dissenting opinion):

"Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firmly
established, for better or worse, that courts can strike down legislative enactments which violate
the Constitution. This process, of course, involves interpretation, and since words can have
many meanings, interpretation obviously may result in contraction or extension of the original
purpose of a constitutional provision, thereby affecting policy. But to pass upon the
constitutionality of statutes by looking to the particular standards enumerated in the Bill of Rights
and other parts of the Constitution is one thing; to invalidate statutes because of application of
'natural law' deemed to be above and undefined by the Constitution is another."

"In the one instance, courts, proceeding within clearly marked constitutional boundaries, seek to
execute policies written into the Constitution; in the other, they roam at will in the limitless

Page 381 U. S. 526

area of their own beliefs as to reasonableness, and actually select policies, a responsibility
which the Constitution entrusts to the legislative representatives of the people."

"Federal Power Commission v. Pipeline Co., 315 U. S. 575, 315 U. S. 599, 315 U. S. 601, n.4.
[Footnote 2/21]"

(Footnotes omitted.) The late Judge Learned Hand, after emphasizing his view that judges
should not use the due process formula suggested in the concurring opinions today or any other
formula like it to invalidate legislation offensive to their "personal preferences," [Footnote 2/22]
made the statement, with which I fully agree, that:
"For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I

Page 381 U. S. 527

knew how to choose them, which I assuredly do not. [Footnote 2/23]"

So far as I am concerned, Connecticut's law, as applied here, is not forbidden by any provision
of the Federal Constitution as that Constitution was written, and I would therefore affirm.

[Footnote 2/1]

The phrase "right to privacy" appears first to have gained currency from an article written by
Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urged that States should give
some form of tort relief to persons whose private affairs were exploited by others. The Right to
Privacy, 4 Harv.L.Rev.193. Largely as a result of this article, some States have passed statutes
creating such a cause of action, and, in others, state courts have done the same thing by
exercising their powers as courts of common law. See generally, 41 Am.Jur. 926-927. Thus, the
Supreme Court of Georgia, in granting a cause of action for damages to a man whose picture
had been used in a newspaper advertisement without his consent, said that "A right of privacy in
matters purely private is . . . derived from natural law," and that

"The conclusion reached by us seems to be . . . thoroughly in accord with natural justice, with
the principles of the law of every civilized nation, and especially with the elastic principles of the
common law. . . ."

Pavesich v. New England Life Ins. Co., 122 Ga.190, 194, 218, 50 S.E. 68, 70, 80. Observing
that "the right of privacy . . . presses for recognition here," today this Court, which I did not
understand to have power to sit as a court of common law, now appears to be exalting a phrase
which Warren and Brandeis used in discussing grounds for tort relief, to the level of a
constitutional rule which prevents state legislatures from passing any law deemed by this Court
to interfere with "privacy."

[Footnote 2/2]

Brother HARLAN's views are spelled out at greater length in his dissenting opinion in Poe v.
Ullman, 367 U. S. 497, 367 U. S. 539-555.

[Footnote 2/3]

Indeed, Brother WHITE appears to have gone beyond past pronouncements of the natural law
due process theory, which at least said that the Court should exercise this unlimited power to
declare state acts unconstitutional with "restraint." He now says that, instead of being presumed
constitutional (see Munn v. Illinois, 94 U. S. 113, 94 U. S. 123; compare Adkins v. Children's
Hospital, 261 U. S. 525, 261 U. S. 544), the statute here "bears a substantial burden of
justification when attacked under the Fourteenth Amendment."

[Footnote 2/4]
A collection of the catchwords and catch phrases invoked by judges who would strike down
under the Fourteenth Amendment laws which offend their notions of natural justice would fill
many pages. Thus, it has been said that this Court can forbid state action which "shocks the
conscience," Rochin v. California, 342 U. S. 165, 342 U. S. 172, sufficiently to "shock itself into
the protective arms of the Constitution," Irvine v. California, 347 U. S. 128, 347 U. S. 138
(concurring opinion). It has been urged that States may not run counter to the "decencies of
civilized conduct," Rochin, supra, at 342 U. S. 173, or "some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental," Snyder v.
Massachusetts, 291 U. S. 97, 291 U. S. 105, or to "those canons of decency and fairness which
express the notions of justice of English-speaking peoples," Malinski v. New York, 324 U. S.
401, 324 U. S. 417 (concurring opinion), or to "the community's sense of fair play and decency,"
Rochin, supra, at 342 U. S. 173. It has been said that we must decide whether a state law is
"fair, reasonable and appropriate," or is rather

"an unreasonable, unnecessary and arbitrary interference with the right of the individual to his
personal liberty or to enter into . . . contracts,"

Lochner v. New York, 198 U. S. 45, 198 U. S. 56. States, under this philosophy, cannot act in
conflict with "deeply rooted feelings of the community," Haley v. Ohio, 332 U. S. 596, 332 U. S.
604 (separate opinion), or with "fundamental notions of fairness and justice," id. 332 U. S. 607.
See also, e.g., Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27 ("rights . . . basic to our free
society"); Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 316 ("fundamental principles of liberty
and justice"); Adkins v. Children's Hospital, 261 U. S. 525, 261 U. S. 561 ("arbitrary restraint
of . . . liberties"); Betts v. Brady, 316 U. S. 455, 316 U. S. 462 ("denial of fundamental fairness,
shocking to the universal sense of justice"); Poe v. Ullman, 367 U. S. 497, 367 U. S. 539
(dissenting opinion) ("intolerable and unjustifiable"). Perhaps the clearest, frankest, and briefest
explanation of how this due process approach works is the statement in another case handed
down today that this Court is to invoke the Due Process Clause to strike down state procedures
or laws which it can "not tolerate." Linkletter v. Walker, post, p. 381 U. S. 618, at 381 U. S. 631.

[Footnote 2/5]

See Hand, The Bill of Rights (1958) 70: .

"[J]udges are seldom content merely to annul the particular solution before them; they do not,
indeed they may not, say that, taking all things into consideration, the legislators' solution is too
strong for the judicial stomach. On the contrary, they wrap up their veto in a protective veil of
adjectives such as 'arbitrary,' 'artificial,' 'normal,' 'reasonable,' 'inherent,' 'fundamental,' or
'essential,' whose office usually, though quite innocently, is to disguise what they are doing and
impute to it a derivation far more impressive than their personal preferences, which are all that,
in fact, lie behind the decision."

See also Rochin v. California, 342 U. S. 165, 342 U. S. 174 (concurring opinion). But see
Linkletter v. Walker, supra, 381 U.S. 479fn2/4|>n. 4, at 631.

[Footnote 2/6]

This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power to invalidate
laws on the ground that they exceed the constitutional power of Congress or violate some
specific prohibition of the Constitution. See also Fletcher v. Peck, 6 Cranch 87. But the
Constitutional Convention did, on at least two occasions, reject proposals which would have
given the federal judiciary a part in recommending laws or in vetoing as bad or unwise the
legislation passed by the Congress. Edmund Randolph of Virginia proposed that the President

". . . and a convenient number of the National Judiciary ought to compose a council of revision
with authority to examine every act of the National Legislature before it shall operate, & every
act of a particular Legislature before a Negative thereon shall be final, and that the dissent of
the said Council shall amount to a rejection, unless the Act of the National Legislature be again
passed, or that of a particular Legislature be again negatived by ___ [original wording illegible]
of the members of each branch."

1 The Records of the Federal Convention of 1787 (Farrand ed.1911) 21.

In support of a plan of this kind, James Wilson of Pennsylvania argued that:

". . . It had been said that the Judges, as expositors of the Laws, would have an opportunity of
defending their constitutional rights. There was weight in this observation; but this power of the
Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be
destructive, and yet not be so unconstitutional as to justify the Judges in refusing to give them
effect. Let them have a share in the Revisionary power, and they will have an opportunity of
taking notice of these characters of a law, and of counteracting, by the weight of their opinions
the improper views of the Legislature."

2 id. at 73.

Nathaniel Gorham of Massachusetts

"did not see the advantage of employing the Judges in this way. As Judges, they are not to be
presumed to possess any peculiar knowledge of the mere policy of public measures."

Ibid. Elbridge Gerry of Massachusetts likewise opposed the proposal for a council of revision:

". . . He relied, for his part, on the Representatives of the people as the guardians of their Rights
& interests. It [the proposal] was making the Expositors of the Laws the Legislators, which ought
never to be done."

Id. at 75. And, at another point:

"Mr. Gerry doubts whether the Judiciary ought to form a part of it [the proposed council of
revision], as they will have a sufficient check agst. encroachments on their own department by
their exposition of the laws, which involved a power of deciding on their Constitutionality. . . . It
was quite foreign from the nature of ye. office to make them judges of the policy of public
measures."

1 Id. at 97-98. Madison supported the proposal on the ground that "a Check [on the legislature]
is necessary." Id. at 108. John Dickinson of Delaware opposed it on the ground that "the Judges
must interpret the Laws; they ought not to be legislators." Ibid. The proposal for a council of
revision was defeated. The following proposal was also advanced:
"To assist the President in conducting the Public affairs, there shall be a Council of State
composed of the following officers -- 1. The Chief Justice of the Supreme Court, who shall from
time to time recommend such alterations of and additions to the laws of the U.S. as may in his
opinion be necessary to the due administration of Justice, and such as may promote useful
learning and inculcate sound morality throughout the Union. . . ."

2 id. at 342. This proposal too was rejected.

[Footnote 2/7]

In Meyer, in the very same sentence quoted in part by my Brethren in which he asserted that
the Due Process Clause gave an abstract and inviolable right "to marry, establish a home and
bring up children," Mr. Justice McReynolds also asserted the heretofore discredited doctrine that
the Due Process Clause prevented States from interfering with "the right of the individual to
contract." 262 U.S. at 262 U. S. 399.

[Footnote 2/8]

Compare Poe v. Ullman, 367 U.S. at 367 U. S. 53-54 (HARLAN, J., dissenting).

[Footnote 2/9]

The Court has also said that, in view of the Fourteenth Amendment's major purpose of
eliminating state-enforced racial discrimination, this Court will scrutinize carefully any law
embodying a racial classification to make sure that it does not deny equal protection of the laws.
See McLaughlin v. Florida, 379 U. S. 184.

[Footnote 2/10]

None of the other cases decided in the past 25 years which Brothers WHITE and GOLDBERG
cite can justly be read as holding that judges have power to use a natural law due process
formula to strike down all state laws which they think are unwise, dangerous, or irrational.
Prince v. Massachusetts, 321 U. S. 158, upheld a state law forbidding minors from selling
publications on the streets. Kent v. Dulles, 357 U. S. 116, recognized the power of Congress to
restrict travel outside the country so long as it accorded persons the procedural safeguards of
due process and did not violate any other specific constitutional provision. Schware v. Board of
Bar Examiners, 353 U. S. 232, held simply that a State could not, consistently with due process,
refuse a lawyer a license to practice law on the basis of a finding that he was morally unfit when
there was no evidence in the record, 353 U.S. at 353 U. S. 246-247, to support such a finding.
Compare Thompson v. City of Louisville, 362 U. S. 199, in which the Court relied in part on
Schware. See also Konigsberg v. State Bar, 353 U. S. 252. And Bolling v. Sharpe, 347 U. S.
497, merely recognized what had been the understanding from the beginning of the country, an
understanding shared by many of the draftsmen of the Fourteenth Amendment, that the whole
Bill of Rights, including the Due Process Clause of the Fifth Amendment, was a guarantee that
all persons would receive equal treatment under the law. Compare Chambers v. Florida, 309 U.
S. 227, 309 U. S. 240-241. With one exception, the other modern cases relied on by my
Brethren were decided either solely under the Equal Protection Clause of the Fourteenth
Amendment or under the First Amendment, made applicable to the States by the Fourteenth,
some of the latter group involving the right of association which this Court has held to be a part
of the rights of speech, press and assembly guaranteed by the First Amendment. As for
Aptheker v. Secretary of State, 378 U. S. 500, I am compelled to say that, if that decision was
written or intended to bring about the abrupt and drastic reversal in the course of constitutional
adjudication which is now attributed to it, the change was certainly made in a very quiet and
unprovocative manner, without any attempt to justify it.

[Footnote 2/11]

Compare Adkins v. Children's Hospital, 261 U. S. 525, 261 U. S. 568 (Holmes, J., dissenting):

"The earlier decisions upon the same words [the Due Process Clause] in the Fourteenth
Amendment began within our memory, and went no farther than an unpretentious assertion of
the liberty to follow the ordinary callings. Later, that innocuous generality was expanded into the
dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to
construe. It is merely an example of doing what you want to do, embodied in the word liberty.
But pretty much all law consists in forbidding men to do some things that they want to do, and
contract is no more exempt from law than other acts."

[Footnote 2/12]

See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that the Ninth
Amendment be used to protect unspecified "natural and inalienable rights." P. 4. The
Introduction by Roscoe Pound states that "there is a marked revival of natural law ideas
throughout the world. Interest in the Ninth Amendment is a symptom of that revival." P. iii.

In Redlich, Are There "Certain Rights . . . Retained by the People"?, 37 N.Y.U.L.Rev. 787,
Professor Redlich, in advocating reliance on the Ninth and Tenth Amendments to invalidate the
Connecticut law before us, frankly states:

"But for one who feels that the marriage relationship should be beyond the reach of a state law
forbidding the use of contraceptives, the birth control case poses a troublesome and challenging
problem of constitutional interpretation. He may find himself saying, 'The law is unconstitutional
-- but why?' There are two possible paths to travel in finding the answer. One is to revert to a
frankly flexible due process concept even on matters that do not involve specific constitutional
prohibitions. The other is to attempt to evolve a new constitutional framework within which to
meet this and similar problems which are likely to arise."

Id. at 798.

[Footnote 2/13]

Of course, one cannot be oblivious to the fact that Mr. Gallup has already published the results
of a poll which he says show that 46% of the people in this country believe schools should teach
about birth control. Washington Post, May 21, 1965, p. 2, col. 1. I can hardly believe, however,
that Brother GOLDBERG would view 46% of the persons polled as so overwhelming a
proportion that this Court may now rely on it to declare that the Connecticut law infringes
"fundamental" rights, and overrule the longstanding view of the people of Connecticut
expressed through their elected representatives.

[Footnote 2/14]
U.S.Const., Amend. IX, provides:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."

[Footnote 2/15]

1 Annals of Congress 439. See also II Story, Commentaries on the Constitution of the United
States (5th ed. 1891):

"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of
the well known maxim that an affirmation in particular cases implies a negation in all others;
and, e converso, that a negation in particular cases implies an affirmation in all others. The
maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced
from its natural meaning into the support of the most dangerous political heresies."

Id. at 651 (footnote omitted).

[Footnote 2/16]

Justice Holmes, in one of his last dissents, written in reply to Mr. Justice McReynolds' opinion
for the Court in Baldwin v. Missouri, 281 U. S. 586, solemnly warned against a due process
formula apparently approved by my concurring Brethren today. He said:

"I have not yet adequately expressed the more than anxiety that I feel at the ever increasing
scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional
rights of the States. As the decisions now stand, I see hardly any limit but the sky to the
invalidating of those rights if they happen to strike a majority of this Court as for any reason
undesirable. I cannot believe that the Amendment was intended to give us carte blanche to
embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason
that seems to me to justify the present and the earlier decisions to which I have referred. Of
course, the words 'due process of law,' if taken in their literal meaning, have no application to
this case, and while it is too late to deny that they have been given a much more extended and
artificial signification, still we ought to remember the great caution shown by the Constitution in
limiting the power of the States, and should be slow to construe the clause in the Fourteenth
Amendment as committing to the Court, with no guide but the Court's own discretion, the validity
of whatever laws the States may pass."

281 U.S. at 281 U. S. 595. See 2 Holmes-Pollock Letters (Howe ed.1941) 267-268.

[Footnote 2/17]

E.g., in Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 342 U. S. 423, this Court held that

"Our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of
legislation nor to decide whether the policy which it expresses offends the public welfare."
Compare Gardner v. Massachusetts, 305 U.S. 559, which the Court today apparently overrules,
which held that a challenge under the Federal Constitution to a state law forbidding the sale or
furnishing of contraceptives did not raise a substantial federal question.

[Footnote 2/18]

Brother HARLAN, who has consistently stated his belief in the power of courts to strike down
laws which they consider arbitrary or unreasonable, see, e.g., Poe v. Ullman, 367 U. S. 497,
367 U. S. 539-555 (dissenting opinion), did not join the Court's opinion in Ferguson v. Skrupa.

[Footnote 2/19]

Justice Holmes, dissenting in Tyson, said:

"I think the proper course is to recognize that a state legislature can do whatever it sees fit to do
unless it is restrained by some express prohibition in the Constitution of the United States or of
the State, and that Courts should be careful not to extend such prohibitions beyond their
obvious meaning by reading into them conceptions of public policy that the particular Court may
happen to entertain."

273 U.S. at 273 U. S. 446.

[Footnote 2/20]

Compare Nicchia v. New York, 254 U. S. 228, 254 U. S. 231, upholding a New York dog-
licensing statute on the ground that it did not "deprive dog owners of liberty without due process
of law." And, as I said concurring in Rochin v. California, 342 U. S. 165, 342 U. S. 175,

"I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a more
permanent protection of individual liberty than that which can be afforded by the nebulous
standards"

urged by my concurring Brethren today.

[Footnote 2/21]

Gideon v. Wainwright, 372 U. S. 335, and similar cases applying specific Bill of Rights
provisions to the States do not, in my view, stand for the proposition that this Court can rely on
its own concept of "ordered liberty" or "shocking the conscience" or natural law to decide what
laws it will permit state legislatures to enact. Gideon, in applying to state prosecutions the Sixth
Amendment's guarantee of right to counsel, followed Palko v. Connecticut, 302 U. S. 319, which
had held that specific provisions of the Bill of Rights, rather than the Bill of Rights as a whole,
would be selectively applied to the States. While expressing my own belief (not shared by MR.
JUSTICE STEWART) that all the provisions of the Bill of Rights were made applicable to the
States by the Fourteenth Amendment, in my dissent in Adamson v. California, 332 U. S. 46, 332
U. S. 89, I also said:
"If the choice must be between the selective process of the Palko decision applying some of the
Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko
selective process."

Gideon and similar cases merely followed the Palko rule, which, in Adamson, I agreed to follow
if necessary to make Bill of Rights safeguards applicable to the States. See also Pointer v.
Texas, 380 U. S. 400; Malloy v. Hogan, 378 U. S. 1.

[Footnote 2/22]

Hand, The Bill of Rights (1958) 70. See 381 U.S. 479fn2/5|>note 5, supra. See generally id. at
35-45.

[Footnote 2/23]

Id. at 73. While Judge Hand condemned as unjustified the invalidation of state laws under the
natural law due process formula, see id. at 35-45, he also expressed the view that this Court, in
a number of cases, had gone too far in holding legislation to be in violation of specific
guarantees of the Bill of Rights. Although I agree with his criticism of use of the due process
formula, I do not agree with all the views he expressed about construing the specific guarantees
of the Bill of Rights.

MR. JUSTICE STEWART, whom MR. JUSTICE BLACK joins, dissenting.

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.

In the course of its opinion, the Court refers to no less than six Amendments to the Constitution:
the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth.

Page 381 U. S. 528

But the Court does not say which of these Amendments, if any, it thinks is infringed by this
Connecticut law.

We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the
"guide" in this case. With that much, I agree. There is no claim that this law, duly enacted by the
Connecticut Legislature, is unconstitutionally vague. There is no claim that the appellants were
denied any of the elements of procedural due process at their trial, so as to make their
convictions constitutionally invalid. And, as the Court says, the day has long passed since the
Due Process Clause was regarded as a proper instrument for determining "the wisdom, need,
and propriety" of state laws. Compare Lochner v. New York, 198 U. S. 45, with Ferguson v.
Skrupa, 372 U. S. 726. My Brothers HARLAN and WHITE to the contrary,
"[w]e have returned to the original constitutional proposition that courts do not substitute their
social and economic beliefs for the judgment of legislative bodies, who are elected to pass
laws."

Ferguson v. Skrupa, supra, at 372 U. S. 730

As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to
invalidate this Connecticut law, even assuming that all those Amendments are fully applicable
against the States. [Footnote 3/1] It has

Page 381 U. S. 529

not even been argued that this is a law "respecting an establishment of religion, or prohibiting
the free exercise thereof." [Footnote 3/2] And surely, unless the solemn process of constitutional
adjudication is to descend to the level of a play on words, there is not involved here any
abridgment of

"the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances. [Footnote 3/3]"

No soldier has been quartered in any house. [Footnote 3/4] There has been no search, and no
seizure. [Footnote 3/5] Nobody has been compelled to be a witness against himself. [Footnote
3/6]

The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring opinion
relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is
to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which
this Court held "states but a truism that all is retained which has not been surrendered," United
States v. Darby, 312 U. S. 100, 312 U. S. 124, was framed by James Madison and adopted by
the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that

Page 381 U. S. 530

the Federal Government was to be a government of express and limited powers, and that all
rights and powers not delegated to it were retained by the people and the individual States. Until
today, no member of this Court has ever suggested that the Ninth Amendment meant anything
else, and the idea that a federal court could ever use the Ninth Amendment to annul a law
passed by the elected representatives of the people of the State of Connecticut would have
caused James Madison no little wonder.

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. [Footnote 3/7]

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
Page 381 U. S. 531

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 he 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. [Footnote 3/8]

[Footnote 3/1]

The Amendments in question were, as everyone knows, originally adopted as limitations upon
the power of the newly created Federal Government, not as limitations upon the powers of the
individual States. But the Court has held that many of the provisions of the first eight
amendments are fully embraced by the Fourteenth Amendment as limitations upon state action,
and some members of the Court have held the view that the adoption of the Fourteenth
Amendment made every provision of the first eight amendments fully applicable against the
States. See Adamson v. California, 332 U. S. 46, 332 U. S. 68 (dissenting opinion of MR.
JUSTICE BLACK).

[Footnote 3/2]

U.S. Constitution, Amendment I. To be sure, the injunction contained in the Connecticut statute
coincides with the doctrine of certain religious faiths. But if that were enough to invalidate a law
under the provisions of the First Amendment relating to religion, then most criminal laws would
be invalidated. See, e.g., the Ten Commandments. The Bible, Exodus 20:2-17 (King James).

[Footnote 3/3]

U.S. Constitution, Amendment I. If all the appellants had done was to advise people that they
thought the use of contraceptives was desirable, or even to counsel their use, the appellants
would, of course, have a substantial First Amendment claim. But their activities went far beyond
mere advocacy. They prescribed specific contraceptive devices and furnished patients with the
prescribed contraceptive materials.

[Footnote 3/4]

U.S. Constitution, Amendment III.

[Footnote 3/5]

U.S. Constitution, Amendment IV.

[Footnote 3/6]

U.S. Constitution, Amendment V.

[Footnote 3/7]
Cases like Shelton v. Tucker, 364 U. S. 479 and Bates v. Little Rock, 361 U. S. 516, relied upon
in the concurring opinions today, dealt with true First Amendment rights of association, and are
wholly inapposite here. See also, e.g., NAACP v. Alabama, 357 U. S. 449; Edwards v. South
Carolina, 372 U. S. 229. Our decision in McLaughlin v. Florida, 379 U. S. 184, is equally far
afield. That case held invalid under the Equal Protection Clause, a state criminal law which
discriminated against Negroes.

The Court does not say how far the new constitutional right of privacy announced today
extends. See, e.g., Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the
Law, at 189. I suppose, however, that, even after today, a State can constitutionally still punish
at least some offenses which are not committed in public.

[Footnote 3/8]

See Reynolds v. Sims, 377 U. S. 533, 377 U. S. 562. The Connecticut House of
Representatives recently passed a bill (House Bill No. 2462) repealing the birth control law. The
State Senate has apparently not yet acted on the measure, and today is relieved of that
responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p.
13, col. 7.