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Politics Foreign Affairs Culture Fellows Program

Overturn Griswold v. Connecticut

It is a poison tree, and its branches will continue to grow until an overdue ax is taken to the trunk.

Estelle Griswold and Dr. C. Lee Buxton with Coat Going to Hearing
Estelle Griswold and C. Lee Buxton at a 1961 circuit court appearance. (Bettmann/Getty Images)

Overturning Roe seemed like a pipe dream until it finally happened. Now that the worst modern legal precedent is gone, we asked TAC contributors: Which bad decision should the Supreme Court overturn next?

In the days of yore in merry olde England, if a man came into your house unwelcome and meant to do you harm, you could shoot him dead; it didn’t matter who he was. It was called the right to privacy—or the Castle Doctrine, for those inclined toward imagery. Pitt the Elder summed it up in 1763: "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter."

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Reasonable enough; but a lot can change in a couple generations. Samuel Warren and Louis Brandeis—the latter a future justice of the U.S. Supreme Court—wrote in 1890 in the Harvard Law Review on a new interpretation of the ancient common-law doctrine of the right to privacy. “Political, social, and economic changes entail the recognition of new rights,” the lawyers wrote, “and the common law, in its eternal youth, grows to meet the new demands of society.”

Explicitly, the Warren–Brandeis article was about private information: what can be published, for what reasons, and with what restrictions. Yet underneath the argument on the surface, two formidable liberal thinkers endeavored to loosen long-standing social and moral strictures.

Warren and Brandeis concluded that “the principle which protects personal writings and any other productions of the intellect or the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.” They made clear that their interest was merely that “the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity.” And they admitted that the right “must necessarily be” limited.

Three and a half decades later, a crooked cop and bootlegger named Roy Olmstead was arrested, tried, and convicted in connection to a massive conspiracy to violate the National Prohibition Act. Olmstead, who had amassed a fortune in the commission of his crimes, challenged the conviction at the U.S. Supreme Court. He considered the wiretaps that did him in a violation of his right to privacy. He lost the case, 5-4. But Louis Brandeis, by then an associate justice, dissented, siding with Olmstead in language entirely reminiscent of his argument in the Harvard Law Review. (Six decades later, the only words Timothy McVeigh spoke in trial for the Oklahoma City bombing were to quote Justice Brandeis’s Olmstead dissent.)

It would take another generation for Brandeis’s view to win out. In November of 1961 Estelle Griswold, a Catholic apostate and Planned Parenthood activist, and C. Lee Buxton, a professor of medicine at Yale, opened a contraceptive clinic in New Haven. The operation ran on a familiar playbook: deliberately breaking the law in hopes of being charged and elevating the case to the Supreme Court. It was the pair’s second attempt to wipe out Connecticut’s Comstock law prohibiting the sale of contraceptives.

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This time, they succeeded. In a 7-2 ruling, the Supreme Court found the law to violate a constitutional right to privacy. It did not matter that no such right was mentioned in the U.S. Constitution: it could, they claimed, be divined in the “penumbras” of enumerated rights. Somewhere on the shadowy edges of the First, Third, Fourth, and Fifth Amendments, surely a right to privacy existed.

But it was not the traditional right to privacy inherited from England, tied up with concerns of property and limited to protection from infringement. It was a right to action, irrespective of consequences or external considerations, which ought to be defended over and against the interests of the public.

We should not reduce our enemies to absurdities when they do so well at it themselves, but it should be rather obvious that no such right exists: the list of sins against man and God which a man is not permitted to commit within his castle runs on for quite a while. If the poorest man has a woman locked up in his basement, or a meth lab in his kitchen, then the king of England and a whole host of other authorities are not just entitled but obliged to enter.

This is an overstatement, but only by a little. Redefining privacy has wrecked the legal and moral order of these United States, and we need not look to examples so extreme as Timothy McVeigh to understand why and how.

In 1965, the Court limited its ruling to married couples, framing the decision explicitly as a defense of the inviolability of marriage and of the family against the state. In just seven years, Eisenstadt v. Baird would redraw the lines again, recognizing “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In another five, the right was extended to minors in Carey v. Population Services International.

In 2003, the right to privacy established in Griswold enabled the Court’s ruling in Lawrence v. Texas, striking down the state’s anti-sodomy law and effectively wiping out any government interest in the conduct of citizens beyond the visible public square. Twelve years later, the twisted logic of 1965 was repurposed in Obergefell v. Hodges, in which the Court found that members of the same sex, somehow, can marry each other.

By far the gravest travesty inflicted by the Griswold decision, though, has been legalized infanticide. In 1973, the Court overruled two centuries of American and two millennia of Christian tradition to invent a right to an abortion. The entire case relied expressly on the argument of Griswold. The finding was reaffirmed in Planned Parenthood v. Casey in 1992: the right to privacy includes a right to kill your kids.

In his infamous Casey opinion, Justice Anthony Kennedy made explicit the relativistic implications of Griswold’s right to privacy. Citing both Eisenstadt and Carey, Kennedy leaned on a supposed “constitutional protection [for] personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” He continued:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

This is nonsense, and recognizable as such to any American before 1890 and most Americans for three generations after. But it was inevitable from the moment Louis Brandeis rewrote the right to privacy, and it was established by the Court in 1965. It was Griswold v. Connecticut, more than any other case, that made relativism the law of the land—and America finally and officially a liberal nation. In effect, Griswold erased from the American consciousness any concept of public morality. Every man is an island when every castle has a moat.

That is the point of Griswold. It was never about contraception, which by the 1960s was permitted de jure in 48 states and de facto in the other two. It is a poison tree, planted with a long view toward history. In its first years it bore Roe; in its maturity, Obergefell. Its branches will continue to grow, and bear more and ever more deadly fruit, until an overdue ax is taken to the trunk.