Griswold V Connecticut:
-This is the one where the court strikes down the statute forbidding married couples from using contraceptives. A due process clause argument is made drawing on a series of "penumbra" rights.
Douglass for the opinion:
-Firstly remember that he's trying to separate this case from the ruling of Lochner.
-He says "Overtones of some arguments suggest that Lochner V. New York should be our guide. But we decline that invitation...We do not sit on a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions"
-In other words the ruling against the statute isn't based on a lassiez-faire, let people do what they want argument. Instead he constructs a deeper right of privacy from several of the amendments "peripheral" or Penumbra rights.
-He says "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance".
-To back this up he cites the 1st amendment freedom of association significance would be greatly lessened without the peripheral right to have a privacy to association as well.
-Goldberg is a little skeptical about penumbra rights.
-Her argument concurs in the idea that privacy in marital relations is a fundamental right and that state forays into the realm are fare more unconstitutional than not having such a law.
- She says "Surely the government, absent a showing of compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them"
-Her argument draws from the 9th amendment. She doesn't assert that the 9th amendment allows for the court to make up rights, but rather that it showed an original understanding that not every fundamental right would be enumerated in the document. This right is an example.
-"The right of privacy in the marital relation is fundamental and basic---a personal right "retained by the people" within the meaning on the 9th amendment".
-Black voices his similar dislike of the Connecticut statute but objects to the lines of reasoning used to strike it down.
-He sees the penumbra reasoning as dangerous in creating precedence to widen or narrow the scope of various amendments. He says there are "guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities...it belittles [the 14th A.] to talk about it as though it protects nothing other than privacy"
-He doesn't like the argument coupling the 9th amendment to the 14th because he feels the court will either react to cases with the lochneresq lassiez-fair mindset or else make things up based on their own personal preferences.
-"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 to the states".