Santorum is Right -- And Wrong

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On Griswold, Santorum is Right—And Wrong

Senator Santorum has managed to become a lightning rod for criticism for his argument that Griswold v. Connecticut (1965) was wrongly decided.  I am sure that for the vast majority of Americans, the notion of overturning Griswold seems like the heights of madness.  Not just libertarians, but even nearly all conservatives, would regard state laws that banned married couples from obtaining contraceptives, as positively bizarre.  (And even Senator Santorum thinks such laws would be bad ideas.)

First of all, let’s distinguish between public policy and constitutionality.  Not every law that is constitutional is necessarily a good idea.  The Militia Act of 1792 required every white male citizen between 18 and 45 to own a gun.  If Congress passed such a law today, it would certainly be constitutional, but perhaps not wise.  Limitations on government power that the Framers found compelling in 1789 sometimes seem less persuasive today. 

 The idea of states telling married couples that they could not obtain contraceptives seems pretty ridiculous today, but that alone does not make such a law unconstitutional.  If you believe that government derives its authority from the consent of the governed, it is very easy to hold, as Justice Stewart’s dissenting opinion in Griswold does, that this was “an uncommonly silly law” but still constitutional.  It is also hard to imagine that any state today would pass such a law, even if the Supreme Court overturned Griswold.

You may be wondering, “Why is Santorum so upset with Griswold?  Does he really want contraception made into a crime?”  I can tell you why many people, myself included, regard Griswold as a terrible jurisprudential mistake.  I have concluded, as a result of a bit of study of the history of contraception laws in the United States, that Griswold came to the right conclusion (such laws are unconstitutional), but by a terribly incorrect process.  In so doing, it created a precedent that later decisions used to reach often wrong conclusions.

For almost two thousand years, contraception was regarded with considerable skepticism by Christianity, because it was associated with pagan culture (along with abortion, homosexuality, prostitution, and adult men marrying girls as young as 12).  To my surprise, however, when I started digging through both primary and secondary sources, I was unable to find any laws in America prohibiting contraceptives until the 1873 Comstock Act, which classified contraceptive devices and information as obscenity.

The Ninth Amendment guarantees that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  If there had been state or federal laws in 1791 prohibiting contraceptives, when the states ratified the Ninth Amendment, you could argue that contraception was not a right “retained by the people.”  But there do not appear to be any such laws.  Griswold could easily, based on this lack of such laws, have made an originalist argument that Connecticut’s law violated the Ninth Amendment.  

The problem was that Justice William O. Douglas essentially admitted that the Supreme Court, for decades, had abandoned anything that was recognizably originalism.  Douglas’s opinion listing multiple rights that the Court had found that were not explicitly mentioned in the Constitution, but that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  Penumbras?  Emanations?  If this sounds like doubletalk to you—I agree.  Somehow, Justice Douglas concluded that there was a right to privacy in there…somewhere.

Justice Goldberg’s concurring opinion, engaged in the same type of doubletalk, asserting that the Ninth Amendment protected rights that are “basic and fundamental and so deep-rooted in our society” without ever identifying a method for identifying how you determine that rights are “basic” or “fundamental” or “deep-rooted.”  Yet Goldberg also claimed that just because Connecticut’s law was unconstitutional, other laws did not run afoul of that right to privacy.  What laws?  Laws that prohibit adultery, fornication, and homosexuality.  

If someone had slapped a condom on Griswold, it would not matter that Douglas reached the right conclusion by the wrong method.  But Griswold had progeny.  The nebulous “right to privacy” soon led to Roe v. Wade (1973) which again, reached almost the correct constitutional result, but again by the wrong method.  Abortion after the unborn child began to stir was a crime under English law when the states ratified the Constitution; if any procedure or “potion” caused the unborn child to be born, and then die, that was murder.  It is hard to imagine how partial-birth abortions would qualify as constitutionally protected by this standard, but abortions in the first trimester certainly would be, as repugnant as they are.

Lawrence v. Texas (2003) was even more far afield on the privacy question.  Unlike Griswold, which came to the right result by the wrong method, and Roe, which came close to the right result by the wrong method, Lawrence built on that mythical right to privacy to find a constitutional right to something that was felonious (often capital felony) everywhere in America in 1791, and remained felonious into the twentieth century.

Our Constitution is not a straightjacket.  We are not obligated to keep our laws as museum pieces, forever stuck in 1791.  Congress and the state legislatures, as the representatives of the people, may modify and adjust laws to reflect changing attitudes and values.  But Griswold’s “right to privacy” has become a tool for overturning majority will where no originalist meaning can fairly justify the results.  

Senator Santorum is wrong about Griswold.  It came to the right conclusion.  But Santorum is also right about Griswold: it comes to its conclusions inaccurately, and the precedents based on it are frequently wrong.

Clayton E. Cramer teaches history at College of Western Idaho, and works as a software engineer for the State of Idaho.