Griswold’s arrest and conviction finally put the Barnum Act squarely before the U.S. Supreme Court. In what may be the shortest landmark decision in Supreme Court’s history, the Court recognized a right to privacy in the “penumbras” of the Bill of Rights. Writing for the Court, Justice Douglas noted that the Court previously had recognized constitutional rights that were not expressly mentioned by the Constitution. For example, the Constitution did not expressly recognize a right to control the education of one’s children or a right of the press to distribute publications. Yet, the Court had found these rights to be an inherent part of the Constitutional fabric. Douglas reasoned that the specific guarantees of the Bill of Rights must have
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Harlan argued that the “penumbra” approach restricted the rights inherent in the Due Process Clause of the Fourteenth Amendment. Harlan worried that the Court’s reliance on penumbras could lead to a restrictive view of liberty that narrowed individual rights to those only expressly or implicitly found in the Bill of Rights. Instead, Harlan believed that the Due Process Clause protected “basic values implicit in the concept of ordered …show more content…
The Court has described Justice Harlan’s Poe dissent as “[t]he second major opinion leading to the modern doctrine” of substantive due process. See Washington v. Glucksberg, 521 U.S. 702, 762 (Souter, J., concurring). In fact, the Court adopted Harlan’s reasoning in Planned Parenthood v. Casey, 595 U.S. 833, 850 (1992), which established the “undue burden” standard of evaluating abortion restrictions. Critics charge that Harlan’s approach give judges carte blanche to enforce the unwritten purposes of the Due Process Clause, thereby removing important social issues from the democratic process. Harlan responded that judges could be trusted to exercise restraint in enforcing the idea of “liberty” in the Due Process Clause. After all, it was similar to the general language of other “specific rights” such as “freedom of speech,” which judges had interpreted and applied for years. Harlan believed that judges would be equally capable of interpreting “liberty.”
Although there were two other concurrences, all agreed that the “right to privacy” was “fundamental” and “substantive.” Justice Arthur Goldberg concurred, arguing that the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights contained by the people, contained a “fundamental right to marital privacy” that was not found in any other specific constitutional amendment. Justice Bryon
Harlan argued that the “penumbra” approach restricted the rights inherent in the Due Process Clause of the Fourteenth Amendment. Harlan worried that the Court’s reliance on penumbras could lead to a restrictive view of liberty that narrowed individual rights to those only expressly or implicitly found in the Bill of Rights. Instead, Harlan believed that the Due Process Clause protected “basic values implicit in the concept of ordered …show more content…
The Court has described Justice Harlan’s Poe dissent as “[t]he second major opinion leading to the modern doctrine” of substantive due process. See Washington v. Glucksberg, 521 U.S. 702, 762 (Souter, J., concurring). In fact, the Court adopted Harlan’s reasoning in Planned Parenthood v. Casey, 595 U.S. 833, 850 (1992), which established the “undue burden” standard of evaluating abortion restrictions. Critics charge that Harlan’s approach give judges carte blanche to enforce the unwritten purposes of the Due Process Clause, thereby removing important social issues from the democratic process. Harlan responded that judges could be trusted to exercise restraint in enforcing the idea of “liberty” in the Due Process Clause. After all, it was similar to the general language of other “specific rights” such as “freedom of speech,” which judges had interpreted and applied for years. Harlan believed that judges would be equally capable of interpreting “liberty.”
Although there were two other concurrences, all agreed that the “right to privacy” was “fundamental” and “substantive.” Justice Arthur Goldberg concurred, arguing that the Ninth Amendment, which states that the Bill of Rights does not exhaust all the rights contained by the people, contained a “fundamental right to marital privacy” that was not found in any other specific constitutional amendment. Justice Bryon