The Paths to Griswold

34 Pages Posted: 10 Jun 2014 Last revised: 9 Jul 2014

Date Written: June 6, 2014

Abstract

This Essay, prepared for a Notre Dame Law Review symposium on the catalysts of constitutional change during the twentieth century, takes as its focus the Warren Court’s landmark decision in Griswold v. Connecticut, 381 U.S. 479 (1965). Existing scholarly accounts of Griswold tend to emphasize influences emanating from outside the Court, such as the social movement activism of birth control advocates and shifting public attitudes toward sexuality, contraception, and women’s rights. These influences are often presumed to account for the Justices’ decision to recognize an unenumerated constitutional right to marital privacy and procreative liberty. But any attempt to explain Griswold by focusing solely on such “external” factors risks missing important parts of the story.

This Essay seeks to develop a more complete picture of Griswold by situating the Court’s decision within a series of important doctrinal and jurisprudential debates and developments that were occurring during the period immediately surrounding the Court’s consideration of the case. In particular, the Essay focuses on: (1) the Supreme Court’s evolving attitudes toward Article III justiciability doctrines during the middle decades of the twentieth century, (2) the evolution of the Court’s thinking regarding substantive due process and the relationship between that doctrine and the “incorporation” of particular Bill-of-Rights guarantees against state governments, (3) the mid-twentieth century revival of academic interest in the Ninth Amendment’s original meaning, (4) the ascendance of strong purposivism as the dominant mode of legal interpretation, and (5) the emergence and rapid proliferation of “strict scrutiny” as a doctrinal test during the early 1960’s. Though often overlooked or downplayed in discussions of the case, these influences played an important role in shaping the timing, structure and enduring doctrinal significance of the Griswold decision.

Keywords: Warren Court, constitutional change, unenumerated rights, substantive due process, ninth amendment, standing, mootness, justiciability, third party standing, strict scrutiny, penumbras, judicial review, incorporation doctrine, privacy, fundamental rights

Suggested Citation

Williams, Ryan, The Paths to Griswold (June 6, 2014). Notre Dame Law Review, Vol. 89, No. 5, 2014; Columbia Public Law Research Paper No. 14-401. Available at SSRN: https://ssrn.com/abstract=2448369

Ryan Williams (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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