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The FDA’s approval of the birth control pill in 1960 was a critical juncture in the social history of the United States, with the pill becoming widely used over a relatively short period of time. Many states had longstanding bans on birth control for unmarried women, and two states—Massachusetts and Connecticut—banned birth control for all women. Connecticut’s law went even further, also banning doctors from counseling patients on the use of birth control. However, such laws were rarely (if ever) enforced, meaning there was little incentive for politicians in these states to risk angering some constituencies (such as the Catholic Church) by moving to repeal them.

Attempts to challenge these laws as unconstitutional limitations on personal freedom or marital privacy normally failed on standing grounds—since no one had actually been charged or prosecuted under the bans, there was no reason for courts to address the issue. To create standing, the director of a New Haven, Connecticut Planned Parenthood Clinic (Griswold), a resident physician, and a local married couple—probably working in concert with sympathetic local officials—openly violated the law and were prosecuted and fined. This test case created the standing needed for state and federal courts to hear the case.

What would be the Court’s response to claims that birth control bans violated the Fourteenth Amendment? By the 1960s, the New Deal constitutional revolution was firmly in place, lessening fears that substantive due process jurisprudence could return to undo it. Nevertheless, there remained a residual distrust of substantive due process—for example, judges used (and still use) Lochner as a symbol of judicial overreach or “legislating from the bench.” Instead, the Supreme Court relied primarily on the Equal Protection clause and the slow incorporation and development of the Bill of Rights as the primary means for protecting civil rights and civil liberties. The Court that faced the Griswold decision, then, was willing to strike down laws it felt unconstitutionally limited civil rights and liberties, but still mostly unwilling to employ substantive due process jurisprudence to do so.

This dilemma can clearly be seen in both Justice Douglas’s opinion for the Court and Justice Goldberg’s concurring opinion, both of which attempt to ground the basis for their decision in something other than substantive due process. Justices Harlan and White, by contrast, argue that a “right to marital privacy” can only—and should—be grounded in the Fourteenth Amendment’s Due Process clause. Eventually, this view would control the cases in this area, with Griswold serving as the resurrection for substantive due process—here in service of family and privacy rights referenced in Pierce and Meyers, rather than the economic liberties in Lochner.

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Griswold v. Connecticut

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381 U.S. 479 (1965)

Facts: Connecticut had a longstanding total prohibition against both the use of birth control and assisting or counseling others to use birth control. Seeking to challenge the law, the director of a Planned Parenthood Clinic in New Haven and the resident doctor offered both medical advice and birth control to a local married couple, triggering a prosecution and fine. They then challenged the law in state and federal court, arguing it violated the Due Process Clause of the Fourteenth Amendment.

Question: Did Connecticut’s birth control prohibitions violate the Constitution?

Vote: Yes, 7-2

For the Court: Justice Douglas

Concurring opinion: Justice Goldberg

Concurring in the judgment: Justice Harlan

Concurring in the judgment: Justice White

Dissenting opinion: Justice Black

Dissenting opinion: Justice Stewart

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…

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 suggest that Lochner v. New York should be our guide. But we decline that invitation… 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, 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, 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, and freedom of inquiry, freedom of thought, and freedom to teach… Without 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, 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.”

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…

The right of “association,” like the right of belief, 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.

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. 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 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.”

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The 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.

JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and 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… 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, is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment… 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.” …

And, in Meyer v. Nebraska, 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. 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 could not be sufficiently broad to cover all essential rights, and that the specific mention of certain rights would be interpreted as a denial that others were protected…

While this Court has had little occasion to interpret the Ninth Amendment, “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” … 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…

… 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.

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.” …

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.” …

The Connecticut statutes here involved deal with a particularly important and sensitive area of privacy — that of the marital relation and the marital home…

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 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…

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 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…

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… 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… 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…

JUSTICE HARLAN, concurring in the judgment.

I fully agree with the judgment of reversal, but find myself unable to join the Court’s opinion…

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.” … 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.

… While I could not more heartily agree that judicial “self-restraint” is an indispensable ingredient of sound constitutional adjudication… “[s]pecific” 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” …

Judicial self-restraint 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.  Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it…

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, and “the liberty . . . to direct the upbringing and education of children,” Pierce v. Society of Sisters, and that these are among “the basic civil rights of man.” Skinner v. Oklahoma…

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, health, or indeed even of life itself.  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. 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…

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… 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…

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…

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…

JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.

… 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…

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 protected by the First and Fourteenth Amendments, which guarantee freedom of speech. But speech is one thing; conduct and physical activities are quite another. 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…

… 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…

… 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.” … If these formulas based on “natural justice,” or others which mean the same thing, are to prevail, they require judges to determine 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 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.” Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them…

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., Lochner v. New York … The two they do cite and quote from, Meyer v. Nebraska, and Pierce v. Society of Sisters, were both decided in opinions by Mr. Justice McReynolds which elaborated the same natural law due process philosophy found in Lochner v. New York … 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, 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…

My Brother GOLDBERG has adopted the recent discovery 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 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. 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 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 Ninth 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…

… 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 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…

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.

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…

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…

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,” 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 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…

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…

While the majority in Griswold resisted resting the decision on Fourteenth Amendment grounds, the residual New Deal-era reluctance to substantive due process would eventually fade. Neither the “penumbra” theory nor the Ninth Amendment would play much of a role in future right-to-privacy decisions, meaning the approach of Justice Harlan and Justice White would ultimately prevail.

Griswold remains the foundational case for the right to privacy. Despite being the ultimate source of the far more controversial Roe v. Wade and its recognition of abortion rights, there is currently little support for overturning or undermining Griswold. In part, this may be because legal conservatives and legal liberals alike have made peace with the idea of unenumerated rights (though not its specific applications). More important, perhaps, is the reality that there is no meaningful support for banning birth control in the United States today. A ruling to the contrary would face a strong and immediate backlash (perhaps dwarfing the backlash that overturning Roe entailed).

The revival of substantive due process also raised the problem the Court faced in its Due Process rulings prior to the pre-New Deal period—how can the Court recognize and protect unenumerated rights without becoming the “super-legislature” Justice Douglas warns of in his Griswold opinion?

To some extent, this dilemma is part of any exercise of judicial review. Eighth Amendment cases, for example, routinely have conservative justices attacking liberal justices for the latter’s application of the “evolving standards of decency” doctrine, arguing such rulings constitutionalized liberal legal policy preferences. That said, criticism of judicial review is going to be harsher when the right in question is not listed in the Bill of Rights, as opponents of the ruling will allege that the majority coalition “made up” a right to gain a political or policy victory.

What is needed, then, is some sort of rule of recognition, a set of standards or principles by which justices can identify unenumerated fundamental rights and justify their protection. Over time, three approaches to recognizing fundamental rights under the Fourteenth Amendment have emerged:

1. Tradition and history. This approach asks whether a particular right is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In other words, if something was recognized as a fundamental right at the time of the Constitution’s founding—or perhaps at the creation of the Fourteenth Amendment—it can also be recognized as a fundamental right today even if not enumerated in the Bill of Rights. For example, the Court has recognized the right to refuse medical treatment, a long-standing common-law principle, as being protected by the Fourteenth Amendment, but rejected the right to assisted suicide under the same test. This approach is also increasingly employed by the post-Trump conservative majority to interpret the Bill of Rights, such as the Second Amendment or the Establishment Clause of the First Amendment.

2. A right any liberal democracy should protect. This approach can be seen in Justice Harlan’s concurring opinion in Griswold, where he argues the Fourteenth Amendment protects rights “implicit in the concept of ordered liberty.” Here the question is what rights a liberal democracy would protect, or what rights a system of “ordered liberty” (i.e. where the government does have limited authority to regulate individual freedoms for the public good) must recognize to deserve the name. While this approach can include historical analysis, it would not, for example, permit police to search the bedrooms of married couples for contraception even if there was no specifically understood “right to contraception” in 1791.

3. Evolving national values. This approach mirrors the Court’s approach to defining cruel and unusual punishment under the “evolving standards of decency” doctrine. While fundamental rights can be found through a study of tradition or history, what is fundamental in the 21^st century may be different from what was fundamental in 1791. As Justice Kennedy wrote in Lawrence v. Texas (2003), “[the Founders] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

None of these approaches is immune from criticism. All are subject to motivated reasoning; all are affected by the level of generality or framing by which one describes the right in question. For example, in Griswold, if one frames the relevant right as the “right to use birth control,” it will fail the tradition and history approach. If, by, contrast, one frames the right as “the right of married couples to decide the size of their family without government inference,” or protection from government interference in the “sacred precincts of the marital bedroom,” one might garner agreement from the Founding generation.

Supreme Court opinions often mix and match or use more than one of these rationales, as they are not necessarily mutually exclusive approaches to considering rights. That said, conservative justices generally prefer the first approach, while moderate and liberal justices are also comfortable with the latter two. The reasons for this lie in the cultural and political cleavages of the substantive due process cases that have come before the Court. Conservatives can use the tradition and history approach to reject a right to gay marriage, for example, while liberals could use the evolving values approach to argue the limitation of marriage to heterosexuals was a flaw in the Framers’ thinking that modern society has now rejected.

Further debate on these approaches is beyond the scope of these materials, but it’s fair to say that all of them provide only a modest limitation on a justice’s decision-making, being fairly malleable and subject to results-oriented reasoning. Historical analysis, an analysis of the components of “ordered liberty,” and an assessment of contemporary values are all ultimately subjective exercises, even if they rely to some degree on empirical evidence.