A Dworkian Analysis of Griswold v.

Connecticut

Tommi Pikkujamsa
CJ 483
Professor Nunnally

1
Abstract: This paper aims to explain why the majority opinion in Griswold v. Connecticut, as
delivered by Justice Douglas, is best understood as conforming to Ronald Dworkins theory of
legal interpretivism. It begins by providing a brief summary of the opinion and the implication
the case has on constitutional rights, preceding an outline of the main aspects of legal
interpretivism. The majority opinion is then analytically shown to be conforming to all of these
main aspects, followed by evidence showing why legal positivism cannot be used to explain
Justice Douglas reasoning.

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The case of Griswold v. Connecticut concerned a Connecticut statute that forbid the
encouragement or use of contraceptives. Both the Executive Director and Medical Director of the
Planned Parenthood League of Connecticut were convicted for advising married couples about
contraception and prescribing them after a medical examination. The appellants argued that the
statute violated the constitutional rights of married couples. Through the use of moral principles
in interpreting the Constitution, the majority opinion delivered by Justice Douglas conforms with
natural law and is best understood within the landscape of Ronald Dworkins theory of legal
interpretivism.
In the majority opinion, Justice Douglas argues that the specific rights granted by the Bill
of Rights have penumbras. These peripheral rights are formed by emanations from [the
explicit] guarantees that help give them life and substance.1 The combination of the explicit and
implicit peripheral rights granted by the First Amendment (freedom of speech), Third
Amendment (outlawing the forced quartering of troops), Fourth Amendment (protection against
unreasonable searches and seizures), Fifth Amendment (protection against self-incrimination),
and Ninth Amendment (assurance of rights not specifically mentioned in the Constitution)
created a general right to privacy.2 This right to privacy is then applied to the states via the
Fourteenth Amendment. Justice Douglas argues that the Connecticut statute in question, which
forbid the use of any drug or article to prevent conception, aimed to do nothing more than have a
negative impact on a relationship. Because the statute in question infringed upon a married
couples fundamental right to privacy, Connecticut was subject to the strict scrutiny test and

1
2

Griswold v. Connecticut, 381 U.S. 483 (1965)

McBride, A. (2006, December 1). Griswold v. Connecticut (1965). Retrieved September 23, 2015, from http://
www.pbs.org/wnet/supremecourt/rights/landmark_griswold.html

3
had to prove that the law was absolutely necessary to achieve a compelling government purpose.
Connecticut failed to prove this, so the law was struck down.3
Justice Douglas opinion is in perfect alignment with Ronald Dworkins theory of legal
interpretivism. Dworkin holds that legal interpretation consists of an explanation of rights and
obligations which is made through appeal to moral principles. This interpretation identifies
often explicitlysome moral principle(s) which are used to justify the goal of a certain
enactment. Furthermore, the justifying role that principles have is fundamental; they explain how
institutional or other non-moral considerations determine rights or obligations. In other words,
moral principles give reasons why any aspect of institutional practice is legally relevantwhy
and how it relates to rights and obligations. Finally, since the mechanism by which rights and
obligations are determined follows frommoral principles [which] give [judicial] practice that
very role, the rights and obligations so determined have genuine moral force.4
Justice Douglas devotes most of his opinion to an explanation of the general right to
privacy created by the penumbra of guarantees within the Bill of Rights, as exemplified by prior
cases. Influenced by the belief that without these peripheral rights, the specific rights would be
less secure5, he establishes the right to privacy as a fundamental one. This is because the
principle of privacy is a core cultural value which affects the very essence of constitutional
liberty and security.6 Thus the principle of privacy, so closely intertwined with liberty, bears
genuine moral force and must be considered in this case. This is a straightforward consensus

Ibid.

Stavropoulos, N. (2003, October 14). Legal Interpretivism. Retrieved September 24, 2015, from http://
plato.stanford.edu/entries/law-interpretivist/
5

Griswold v. Connecticut, 381 U.S. 483 (1965)

Ibid.

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perspective; Justice Douglas is alluding to privacy as a shared cultural value which promotes
social stability and must be protected by the law.7 A further reference to principle is made as
Justice Douglas connects the principle of privacy, and thus the right to privacy, to the principle
that a governmental purpose to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms.8 It is through the connection of these two principles, heavily
influenced by morality, that Justice Douglas reaches the decision to reverse the judgement made
by the Supreme Court of Errors of Connecticut and attempts to promote justice by ensuring that
the law respects, cultivates, and protects the right to privacy.910
According to Dworkin, the Constitution establishes general moral standards which the
government cannot infringe upon, but judges must decide if and how these standards apply in a
given circumstance. In other words, judges must use moral analysis and argument to understand
and apply the constitution. This is exhibited most in cases dealing with the Due Process Clause,
which the Supreme Court understands as placing limits on the governments power in all
circumstances, no matter the procedure. Thus, the Due Process Clause is not only procedural, but
substantive as well, in that it protects the fundamental rights of people, whether or not they are

The consensus perspective is described in: Walsh, A., & Hemmens, C. (2014). Law, Justice, and Society: A
Sociolegal Introduction (Third ed., pp. 21-22). New York, NY: Oxford University Press.
8

Griswold v. Connecticut, 381 U.S. 485 (1965)

I am referring to justice as defined in: Walsh, Law, Justice, and Society, 43

10

It could be argued that Justice Douglas was not wholly promoting justice through this decision, because his
opinion concerned only a married couples right to privacy, as opposed to that of all people. Walsh states, Law is in
accordance with justice when it respects, cultivates, and protects the dignity of even the lowliest person living under
it; it violates justice when it does not. This case did not establish freedom of contraceptive use for all kinds of
relationships, as it only concerned marital relations. Thus, because this case did not extend the decision to all
relationships, it violates justice as defined by Walsh.

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specifically mentioned in the Constitution.11 Moral argument is thus necessary; judges must
decide which rights are fundamental. This is precisely the format Justice Douglas followed in the
majority opinion, as he first explains the penumbra of rights granted by the Bill of Rights, then
combines them into a general, fundamental right to privacy, which is applied to the matter at
hand. In a sense, this case established that a married couples right to use contraception was
constitutionally protected. This leads to the problematic view that judges can make anything a
constitutionally protected right. According to Dworkin, viewing judicial discretion in this way
reduces the Constitution to something of an incredibly detailed and long list of rules which does
nothing more than describe the specifics of society at a given time in history. However,
substantive due process protects against all unreasonable restrictions of liberty. The ambiguity of
what constitutes unreasonable makes the listing of any specific rights nearly impossible.
Therefore, Dworkin argues that it is more beneficial to view the Constitution as one of principle,
which lays out broad principles of political morality that invite judicial innovation to meet
changed circumstances and evolving moral standards.12 This is obviously how Justice Douglas
interprets the language of the Constitution, shown by his many references to prior decisions to
exemplify the principles.
Though Dworkin is a (somewhat unorthodox) natural law theorist and Justice Douglas
opinion is in line with his legal philosophy, the discussion fits in an interesting place within the
positivism/natural law debate. On the one hand, the entire opinion is full of moral references and
judgements, obviously conforming to the natural law side. On the other hand, one could interpret

11

Wenz, P. (1998, August 10). Dworkin's Wishful-Thinkers Constitution. Retrieved September 22, 2015, from
https://www.bu.edu/wcp/Papers/Law/LawWenz.htm

12

Wenz, Dworkin's Wishful-Thinkers Constitution

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Justice Douglas opinion as an outline of the applicable Amendments and precedent, which are
then used to logically support his decision. A positivist could very well argue that by examining
and applying the relevant law, Justice Douglas does not need to appeal to morality in order to
reach his decision. Instead, he examines social facts and decides whether or not Connecticuts
statute conformed to those facts. Indeed, Justice Douglas opinion is very formulaic and flows in
a way which would support the positivist approach. However, he nonetheless makes a moral
judgement about the importance of privacy when he establishes it as a fundamental marital right.
A second moral judgement is made when referring to the principle connecting the statute in
question to the right to privacy. It is these unavoidable moral judgements that place Justice
Douglas opinion on the side of natural law.
The importance of the Supreme Courts finding in Griswold v. Connecticut cannot be
understated. As argued by Justice Douglas, the right to privacy is perhaps one of the most
fundamental rights granted by the Constitution. However, because it is not explicitly enumerated,
judicial interpretation was required to reach this decision. Though it can be argued that Justice
Douglas reasoning reflects legal positivism, it cannot be denied that moral judgements were
made in reaching the conclusion. Thus, his argument is in line with natural law. Furthermore, due
to the central role of moral principles in his interpretation of the penumbra of rights, Justice
Douglas majority opinion most closely conforms to Ronald Dworkins theory of legal
interpretivism.

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References
Griswold v. Connecticut, 381 U.S. 479 (1965)
McBride, A. (2006, December 1). Griswold v. Connecticut (1965). Retrieved September 23,
2015, from http://www.pbs.org/wnet/supremecourt/rights/landmark_griswold.html
Stavropoulos, N. (2003, October 14). Legal Interpretivism. Retrieved September 24, 2015, from
http://plato.stanford.edu/entries/law-interpretivist/
Walsh, A., & Hemmens, C. (2014). Law, Justice, and Society: A Sociolegal Introduction (Third
ed.). New York, NY: Oxford University Press.
Wenz, P. (1998, August 10). Dworkin's Wishful-Thinkers Constitution. Retrieved September 22,
2015, from https://www.bu.edu/wcp/Papers/Law/LawWenz.htm