Debates among constitutional experts matter because these debates help shape broader opinion.
Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum.
But is Griswold in accord with the original meaning? I don’t believe any of the justifications offered in Griswold – substantive due process, the 9th Amendment, emanations from penumbras – work from an originalist perspective. But I do believe that another basis may do the trick.
These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms). Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time. Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect. It may be that those rights should have been protected over a period of time, not just for a particular instant. I will try to explain the basis for this view in a future post.
Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States. According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”
If Justice Harlan is right, then this would support a right to use contraceptives. Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right.
I should note that I have changed my mind about this issue. Based on the feeble justifications given for the right in Griswold and subsequent cases, I have for a long time believed that Griswold did not accord with the original meaning. But now I am inclined (although am not certain) that it is justified under the original meaning.