Occasionally a judgment of our Supreme Court, delivered in a superficially petty case, suddenly before our startled eyes displays fundamentals of our constitutional theory. Thus, in Griswold v. Connecticut, holding unconstitutional an 1879 Connecticut statute forbidding all persons to use contraceptive devices, the Court found it necessary to discover a "right of privacy" latent in the Bill of Rights and incorporated into the due process clause of the fourteenth amendment. The outcome of the case is satisfying; all nine Justices joined in saying, in one way or another, that Connecticut's statute was nonsense. I am happy to see this limit on public intrusion into private affairs. But the dramatic traits of the case were the necessity felt by five Justices for some comfortingly specific rule in the Constitution which would outlaw Connecticut's statute, and their choice of a "right of privacy" as such a rule. These are five wise and thoughtful judges; one is struck by their sense that they must explain their decision by discovering some pre-existing rule, more definite than "due process" with its vague contours.
Arthur E. Sutherland,
Privacy in Connecticut,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol64/iss2/6