THE RIGHT TO PRIVACY

The Warren Court not only expanded existing liberties but also outlined entirely new rights in response to the rapidly changing contours of American society. Most dramatic was its assertion of a constitutional right to privacy in Griswold v. Connecticut (1965), which overturned a state law prohibiting the use of contraceptives. Justice William O. Douglas, who wrote the decision, had once declared, “The right to be let alone is the beginning of all freedom.” Apart from decisions of the 1920s that affirmed the right to marry and raise children without government interference, however, few legal precedents existed regarding privacy. The Constitution does not mention the word. Nonetheless, Douglas argued that a constitutionally protected “zone of privacy” within marriage could be inferred from the “penumbras” (shadows) of the Bill of Rights.

Griswold linked privacy to the sanctity of marriage. But the Court soon transformed it into a right of individuals. It extended access to birth control to unmarried adults and ultimately to minors—an admission by the Court that law could not reverse the sexual revolution. These decisions led directly to the most controversial decision that built on the rulings of the Warren Court (even though it occurred in 1973, four years after Warren’s retirement). This was Roe v. Wade, which created a constitutional right to terminate a pregnancy. The Court declared access to abortion a fundamental freedom protected by the Constitution, a fulfillment of radical feminists’ earliest demand. Roe provoked vigorous opposition, which has continued to this day. Only two states banned contraception when Griswold was decided; Roe invalidated the laws of no fewer than forty-six.

Griswold and Roe unleashed a flood of rulings and laws that seemed to accept the feminist view of the family as a collection of sovereign individuals rather than a unit with a single head. The legal rights of women within the domestic sphere expanded dramatically. Law enforcement authorities for the first time began to prosecute crimes like rape and assault by husbands against their wives. Today, some notion of privacy is central to most Americans’ conception of freedom.

The rights revolution completed the transformation of American freedom from a set of entitlements enjoyed mainly by white men into an open-ended claim to equality, recognition, and self-determination. For the rest of the century, the government and legal system would be inundated by demands by aggrieved groups of all kinds, and the Supreme Court would devote much of its time to defining the rights of Americans.

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