How Conflict Entrenched the Right to Privacy

Abstract

We are about to mark the fiftieth anniversary of Griswold v. Connecticut, a 1965 case in which the Supreme Court struck down a Connecticut law that criminalized the use of contraception, in the process giving birth to the modern right to privacy. From Griswold’s understanding of “liberty” grew the right to make decisions about abortion, and the right to engage in same-sex sex, without coercion by the criminal law. How has our understanding of the Constitution’s protection for “liberty” come to include sex and marriage, whether sex in marriage, or same-sex marriage? In what follows, I will consider debates over the right to contraception and its progeny at three points in history: in the 1960s when the Court first decided the Griswold case; in 1980s “culture war” struggles over Griswold during the Reagan era; and in current conflicts over the right to privacy—in the recently decided Hobby Lobby case and in continuing struggles over same-sex couples’ right to marry. The story illustrates how the making of constitutional meaning occurs all around us, not only in formal processes of constitution-making or in acts of constitutional interpretation by the Court, but also in day-to-day debates among ordinary Americans. Importantly, Griswold’s story shows how deeply the Constitution’s meaning is shaped by conflict as well as by consent. Griswold’s story demonstrates how conflict over the right to privacy—one of the most fiercely contested rights in the modern constitutional canon—has helped to entrench the right to privacy, to make it endure, and to imbue it with evolving meaning.