Justice Scalia's Rubber Stamp (photo by his son, Chris)
"Please don't emanate in the penumbras" --SCOTUS blog
For all its talk about penumbras and emanations, Griswold is a Substantive Due Process/Lochner-type decision in which the Court decided that "privacy in marriage" is a fundamental right protected by the Constitution. By the time it decides Roe, the Court frankly admits that SDP is the source of the non-constitutional, Constitutional right of privacy.
But privacy to do what? Do unmarried people have a right of "marital privacy" to use contraceptives? Yes, I guess that makes it non-marital, marital privacy! See Eisenstadt v. Baird, casebook at 583.
Does the Constitution allow "the police to search the sacred precincts of the marital bedroom" for illegal drugs, or guns, or other contraband? Of course, so long as they get a warrant or otherwise comply with the Fourth Amendment! I guess the marital bedroom is not so sacred after all!
Is the Griswold Court an "activist" Court?
Of course not-- Justice Douglas explicitly informed us that: "We [the Court] do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." As the Bard might have said, "The lady doth protest too much, methinks." Whenever the Court feels compelled to deny it is being activist, that is a great marker of an activist decision that is about to follow.
By the way, this is not to say that "silly" state laws banning contraception are good policy. It is simply to recognize that these policy questions are left to state legislatures and state constitutions under the Tenth Amendment, not to the Supreme Court under the Written Constitution.
Not all bad laws are constitutionally prohibited; and not all good laws are constitutionally required.
Indeed, Justice had a rubber stamp that said : "STUPID BUT CONSTITUTIONAL."
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