U.S. Supreme Court Griswold v. Connecticut, 381
U.S. 479 (1965) Griswold v.
Connecticut 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. Page 381 U. S. 480 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. Page 381 U. S. 481 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 Page 381 U. S. 482 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 Page 381 U. S. 483 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. Page 381 U. S. 484 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 Page 381 U. S. 485 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 Page 381 U. S. 486 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 Page 381 U. S. 487 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.) Page 381 U. S. 488 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 Page 381 U. S. 489 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 Page 381 U. S. 490 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 Page 381 U. S. 491 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 Page 381 U. S. 492 "[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 Page 381 U. S. 493 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 Page 381 U. S. 494 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. " Page 381 U. S. 495 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 Page 381 U. S. 496 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 Page 381 U. S. 497 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 Page 381 U. S. 498 . . . 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 Page 381 U. S. 499 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. 479 fn2/4|>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. 479 fn2/5|>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.

Summary: In Griswold v. Connecticut (1965), the Supreme Court ruled that a Connecticut law prohibiting the use of contraceptives violated the constitutional right to marital privacy, which is protected by the Fourteenth Amendment. The Court held that the right to marital privacy is within the "penumbra" of specific guarantees in the Bill of Rights, and that the state law unconstitutionally infringed on this right. The case established a precedent for recognizing unenumerated rights derived from the specific guarantees of the Bill of Rights, and it marked a significant step in the expansion of privacy rights and reproductive freedom in the United States.