Privacy, Autonomy and the Fourteenth Amendment Flashcards
Griswold v. Connecticut (1965)(p. 417)
Statutes that prohibited the use and sale of contraceptives
a) Court held the Constitution protected the right of marital privacy against state restrictions on a couples ability to be counselled in the use of contraceptives.
i) Justice Douglas: there is a right to privacy in the constitution.
(1) Douglas’ challenge is to distinguish from social legislation seen in Williamson and Ferguson from this case.
(a) None of the presumptions of constitutionality apply when there is a constitutional protection of rights (see Carolene Products footnote), so puts case in this category
(2) Mentions 1st, 3rd, 4th, 5th and 9th Amendment as having aspects in privacy. Privacy is related to the kinds of things the constitution was created to protect.
(a) One way of thinking about this is that the particular rights listed in the Bill of Rights are examples of bigger rights (like privacy) and the list of rights is non-exclusive.
(b) Right of privacy can be derived from what the First, Third, Fourth and Fifth Amendments share in common “collective periphery”
(3) If we understand Justice Douglas as looking for “the best interpretation” as saying the Bill of Rights is just examples
(a) Can we extract a theme out of the rights established in the Constitution?
(i) Penumbra around the rights: see, how we get from 1st Amendment to the freedom of association.
1) Douglas notes that Freedom of Association has been read into the first amendment by SCOTUS, even though the First Amendment does not explicitly recognize this right.
(ii) Suggests the possibility of a slippery slope
1) But it is not correct to argue against the existence of a power from the possibility of its abuse.
