topic : 1. What are unalienable liberties and from what do they arise? How do the readings for the class help identify these liberties? Instructions: 1. Identify and provide at least one quotation f

Opinion DOUGLAS, J., Opinion of the Court 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 of fense may be prosecuted and punished as if he were the principal of fender .

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 af firmed. The Supreme Court of Errors af firmed that judgment. 151 Conn. 544, 200 A.2d 479. We noted probable jurisdiction. 379 U.S.

926. [p481] W e think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. T ileston v . Ullman, 318 U.S. 44, is dif ferent, for there the plaintif f 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 of fense which he is charged with assisting is not, or cannot constitutionally be, a crime.

This case is more akin to T ruax 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 h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 2 /3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te husband and wife, pressed here, are likely to be diluted or adversely af fected 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 [p482] suggest that Lochner v . New York, 198 U.S. 45, should be our guide. But we decline that invitation, as we did in W est 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; W illiamson v . Lee Optical Co., 348 U.S. 483; Giboney v . Empire Storage Co., 336 U.S. 490. W e do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business af fairs, 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, 143) and freedom of inquiry , freedom of thought, and freedom to teach ( see W iemann v . Updegraff, 344 U.S. 183, 195) -- indeed, the freedom of the entire university community . Sweezy v . New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v . United States, 360 U.S. 109, 1 12; Baggett v . Bullitt, 377 U.S. 360, 369. Without [p483] those peripheral rights, the specific rights would be less secure. And so we reaf firm the principle of the Pierce and the Meyer cases. In NAACP v. Alabama, 357 U.S. 449, 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, 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 244), and was not action of a kind proving bad moral character . Id. at 245-246. h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 3 /3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te 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 af filiation 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. [p484] 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, 516-522 (dissenting opinion). V arious 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 af firms the "right of the people to be secure in their persons, houses, papers, and ef fects, 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, 1 16 U.S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." [*] W e recently referred [p485] in Mapp v . Ohio, 367 U.S. 643, 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).

W e have had many controversies over these penumbral rights of "privacy and repose." See, e.g., Breard v . Alexandria, 341 U.S. 622, 626, 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, 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.

h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 4 /3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te NAACP v. Alabama, 377 U.S. 288, 307. W ould we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [p486] very idea is repulsive to the notions of privacy surrounding the marriage relationship.

W e 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.T r. 1029] af fect 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 of fence; 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 of fence -- 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.

1 1 6 U .S . a t 6 30.

h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 5 /3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te T O P Dissent BLACK, J., Dissenting Opinion MR. JUSTICE BLACK, with whom MR. JUSTICE STEW ART joins, dissenting.

I agree with my Brother STEW ART'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 of fensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG, who, reciting reasons why it is of fensive 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 [p508] protected by the First and Fourteenth Amendments, which guarantee freedom of speech. Cf. Brotherhood of Railroad T rainmen v. Virginia ex rel. V irginia 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, 554-555; Cox v . Louisiana, 379 U.S. 559, 563-564; id. 575-584 (concurring opinion); Giboney v . Empire Storage & Ice Co., 336 U.S. 490; cf. Reynolds v . United States, 98 U.S. 145, 163-164. The two defendants here were active participants in an organization which gave physical h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 1 7/3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te 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 af ford 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 [p509] 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 of fice or home.

One of the most ef fective 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 suf fered 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 T imes Co. v . Sullivan, 376 U.S. 254, 293 (concurring opinion); cases collected in City of El Paso v . Simmons, 379 U.S. 497, 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 [p510] one or more constitutional provisions. [n1] 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.

h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 1 8/3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law . Brothers HARLAN [n2] 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 [p51 1] 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 dif ferent words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or of fensive.

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 of fensive to a "sense of fairness and justice." [n3] If these formulas based on "natural justice," or others which mean the same thing, [n4] are to prevail, they require judges to determine [p512] 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 [p513] 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 of fensive to our own notions of "civilized standards of conduct." [n5] 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. [n6] [p514] h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 1 9/3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te 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., [p515] 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- discrSyllabus & Opinions Onlys 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 [p516] state law forbidding the teaching of modern foreign languages to young children in the schools. [n7] 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 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, [n8] 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. [n9] See Brotherhood of Railroad T rainmen v . Virginia ex rel. [p517] V irginia State Bar , 377 U.S. 1, 7-8. [n10] 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 [p518] 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. [n1 1] My Brother GOLDBERG has adopted the recent discovery [n12] 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 [p519] 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. [n13] 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 [n14] 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 h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 2 0/3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te 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 [p520] insecure." [n15] 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 of fend 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 af fairs. 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 [p521] 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.

[n16] [p522] 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 h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 2 1/3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te 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 W est Coast Hotel Co. v . Parrish, 300 U.S. 379; Olsen v . Nebraska ex rel. W estern Reference & Bond Assn., 313 U.S. 236, and many other [p523] opinions. [n17] See also Lochner v . New York, 198 U.S. 45, 74 (Holmes, J., dissenting). In Ferguson v . Skrupa, 372 U.S. 726, 730, this Court two years ago said, in an opinion joined by all the Justices but one, [n18] 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. 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.

And only six weeks ago, without even bothering to hear argument, this Court overruled T yson & Brother v . Banton, 273 U.S. 418, which had held state laws regulating ticket brokers to be a denial of due process of law . [n19] Gold [p524] 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. [n20] 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 [p525] 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 dif fered 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.

h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 2 2/3 1 1 /2 3/2 020 G ris w old v . C onnectic u t | U S L aw | L II / L egal In fo rm atio n In stit u te Calder v . Bull, 3 Dall. 386, 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, 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 af fecting 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 [p526] 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, 599, 601, n.4. [n21] (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 of fensive to their "personal preferences," [n22] the statement, with made which I fully agree, that:

For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I [p527] knew how to choose them, which I assuredly do not. [n23] 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 af firm.

h ttp s://w ww.la w .c o rn ell. e du/s u pre m eco urt/te xt/3 81/4 79 2 3/3 1 A rtic le 2 :

R ead:

I n dia n R em ova l A ct o f M ay 2 8, 1 830 ( P re sid ent A ndre w J a ckso n) h ttp s://io w acu lt u re .g ov/s it e s/d efa ult /file s/h is to ry -e duca tio n-p ss-re m ova l- in dia nre m ova la ct- tr a nscr i p tio n.p df I n dia n R elig io us F re edom A ct o f 1 978 ( fin ally a llo w ed N ativ e c it iz e ns to o penly s h are c u lt u re ) I n 1 978, C ongre ss e nacte d th e A m eric a n In dia n R elig io us F re e dom A ct, w hic h s ta te s:

" H ence fo rth it s h all b e th e p olic y o f th e u n it e d S ta te s to p ro te ct a nd p re se rv e fo r A m eric a n I n dia ns th eir in here nt r ig ht o f fr e edom to b elie ve , e xp re ss, a nd e xe rc is e th e tr a d it io nal r e lig io ns o f th e A m eric a n In dia n, E skim o, A le ut, a n d N ativ e H aw aiia ns, in clu din g b ut n ot lim it e d to a cce ss t o s it e s, u se a nd p osse ssio n o f s a cre d o bje cts , a nd th e fr e e dom to w ors h ip th ro u gh c e re m onia ls a nd tr a dit io nal r it e s." ( P .L . 9 5-3 41; 4 2 u se s 1 996).

P oem s fr o m J o y H arjo ’s A n A m eric a n S unris e ● “ S ong 7 .

T hre e G host F ig ure s T he P ast r o se u p b efo re u s a nd c rie d I n th e v o ic e s o f th e c h ild re n w ho w ere d ra gged T o In dia n s ch ool a nd n eve r r e tu rn ed.

T he P re se nt s p oke u p a nd th ose w ho r e m em be re d H ow to lis te n c o uld h ear.

W e o ff e re d to bacco a nd p aid a tte ntio n T o th eir s to rie s.

T he F utu re w as a p ath th ro ugh s o ld ie rs W it h G atlin g g uns a nd G M O s p oile d c ro p s M otio nin g u s to s a fe ty .” ● F or E arth ’s G ra ndso ns “ S ta nd ta ll, n o m atte r y o ur h eig ht, h ow d ark y o ur s kin Y our s p ir it is a ll c o lo rs w it h in Y ou a re m ade o f th e fin est w ove n lig ht F ro m th e ir id esce nt lo ve th at fo rm ed y o ur m oth ers , fa th ers Y our g ra n dpare n ts a ll th e w ay b ack o n th e s p ir a l r o ad— T here is n o e nd to th is lo ve I t h as fo rm ed y o ur b odie s F eeds y o ur b rig ht s p ir it s A nd n o m atte r w hat h appens in th ese tim es o f b re a kin g— N o m atte r d ic ta to rs , th e h eartle ss, a nd lia rs N o m atte r— yo u a re b orn o f th ose W ho k e pt c e re m onia l e m bers b urn in g in th eir h ands A ll th ro ugh th e m ile s o f r e le ntle ss e xile T hose w ho s a ng th e p ath th ro ugh m assa cre A ll th e w ay to s u nris e Y ou w ill m ake it th ro ugh— " ● H onorin g “ W ho s in gs to th e p la nts T hat a re g ro w n fo r o ur p la te s? A re th ey g ath ere d lo vin gly I n a pro ns o r a rm s? O r d o th ey s u ff e r th e fa te O f th e m oto r-d riv e n w hip O f th e m on ste r r e a per? N o s o ng a t a ll, o nly T he s o und o f m oney B ein g s ta cke d in a b ank W ho s tit c h ed th e s e am s in m y c lo th es O ne lin e a fte r a noth er?

W as th e r o om s w eaty a nd d ark W it h n o h our to s p are ?

D id s h e h ave e nough to e at?

D id s h e h ave a h om e a nyw here ?

O r d id s h e liv e o n th e flo or?

A nd w here w ere th e c h ild re n?

O r w as th e s e am str e ss th e c h ild W it h n o h om e o f h is o r h er o w n?

W ho s a crif ic e s to m ake c lo th es F or s tr a ngers o f a noth er c o untr y ?

A nd w hy?

L et’s r e m em ber to th ank th e g ro w er o f fo o d T he p ic ke r, th e d riv e r, T he s u n a nd th e r a in .

L et’s r e m em ber to th ank e ach m ake r o f s tit c h A nd la ye r o f p atte rn , T he d ye r o f c o lo r I n th e im mense h ouse o f b eauty a nd p ain . L et’s h onor th e m ake r.

L et’s h onor w hat’s m ade.”