Mr. Romney and Mrs. Griswold

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The New York Sun

One of the remarkable things about the Republican debate last night is that, in the year 2012 in a debate about the future of the country, the questions turned to Estelle Griswold. She was the executive director of Planned Parenthood at Connecticut. In November 1961, she opened a birth control clinic at New Haven, only to be arrested for violating a state law prohibiting the use or sale of birth control medicines and devices. She was fined $100. It was her appeal, known as Griswold v. Connecticut, in which the justices of the Supreme Court most famously marked a right to privacy in the Constitution.

Griswold is the case to which George Stephanopoulos was referring when he asked whether Governor Romney believes “that states have the right to ban contraception, or is that trumped by a constitutional right to privacy?” Mr. Romney, who holds a law degree from Harvard and was governor of the most liberal state, tried to dodge the question. He complained that it was hypothetical, given the fact that no state wants to ban contraception. Mr. Stephanopoulos pressed him by saying, “I’m asking you, do you believe state’s have that right or not.”

Mr. Romney called the question “silly.” He would have done better by answering it, especially because Estelle Griswold has such — how to put it? — eye-popping penumbras. A penumbra is a space of partial illumination, a sort of half-shadow. Mrs. Griswold’s case made the word one of the most famous in American law, when the Supreme Court declared that the Connecticut law “violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.” The court also declared that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

The importance of Mr. Stephanopoulos’ question is that both sides of social debate have to dodge and weave among these emanations and penumbras. The people of Connecticut had been exercising their right to make law in respect of birth control for nearly a century, when suddenly they were found to be in violation of a penumbra of an emanation. The court’s ruling, written by William O. Douglas, was met with a dissent by one of the most gracious and to-the-point centrists, Potter Stewart, who quoted an earlier case about how “courts do not substitute their social and economic beliefs for the judgment of legislative bodies . . .”

Stewart wrote that the law that snared Mrs. Griswold was “uncommonly silly,” but he mocked the notion that the First, Third, Fourth, and Fifth Amendments, which were cited by the majority, prohibited the legislature of Connecticut from regulating birth control. He noted that it was not even argued that Connecticut’s was a law respecting an establishment of religion or prohibiting the free exercise thereof. Nor, he wrote, “unless the solemn process of constitutional adjudication is to descend to the level of a play on words,” was there any abridgement of the rights to speech, the press, peaceable assembly, or petition. And, in reference to the majority’s citation of the Third Amendment, he exclaimed “no soldier has been quartered in any house.”

“What provision of the Constitution, then, does make this state law invalid?” Stewart demanded. ”The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court. At the oral argument in this case, we were told that the Connecticut law does not ‘conform to current community standards.’ But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases ‘agreeably to the Constitution and laws of the United States.’”

Finally, Stewart noted, it was “the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.” He went on to remark on both the Ninth and Tenth Amendments, reserving rights to the states and to the people. “If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.”

* * *

Mr. Romney got a good laugh last night by turning the matter over to Congressman Ron Paul, as the “constitutionalist” among the candidates. He’d have done better to have answered Mr. Stephanopoulos’ question along the lines that Justice Stewart illuminated. That would have put Mr. Romney in a better light, as a true, knowledgeable and nuanced conservative. Perhaps he was worried that the press — we are a sly lot — would have pounced with a question that is not as hypothetical as the matter of contraceptives, namely abortion. For surely a number of states would act if the matter could be brought out of the penumbras and emanations among which the court discovered in the privacy right in Griswold. It looks like that discussion will have to wait for a candidate to confront the issue head on, as we hope that Senator Santorum will do here in New York at some point before the campaign is over.

The New York Sun

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