— Editorial Reader

Lochner’s role as foil to Griswold

How these two cases can be differentiated through close comparison

By Phineas Upham

When the Supreme Court handed down their decision in Griswold v. Connecticut, critics leveled accusations of “Substantive Due Process,” “Lochnerism,” and a violation of “the right of the majority to embody their opinions into law.” Griswold v. Connecticut (1965) and Lochner v. New York (1905), a case reviled by many progressives, seem at first glance to be cut from the same cloth. Both overturn a law that a community has chosen to democratically legislate, and both seem to do so on flimsy constitutional grounds. In fact, critics claim, both cases seem to be decided more on the moral and economic preferences of the court than on textual or constitutional grounds. Were liberals being hypocritical to hate one and embrace the other? Is the only substantial difference that of policy preference? Though the cases are similar in some, especially structural, respects, they differ in other key respects. When a broad understanding of the Griswold case in historical, technological, social, and legal context is examined it becomes less and less reminiscent of Lochner. Lochner serves as a foil to Griswold, helping to reveal Griswold’s true nature through an understanding of the differences and similarities of the two cases.

Lochner, decided in 1905, overturns a law which limited the hours of work allowed in a bakery. It was instituted by the majority of citizens in a community. The court overturned this law based on the grounds that it took away the “liberty” to contract without due process of law as outlined in the 14th amendment. But, Justice Holmes argues in his famous dissent, “the word liberty is perverted when it is held to prevent the natural outcome of a dominant opinion unless… the statute proposed would infringe on fundamental principles. (SB 49)” The constitution allows for communities to experiment with, and choose for themselves, structural and societal rules and regulations within limitations. The court allowed “Sunday laws, usury laws, [lottery laws, laws requiring] vaccinations (SB 50)” and so the decision in Lochner was not merely bad jurisprudence, it was hypocrisy. Instead it seemed that the court’s real purpose might have been to “enact Herbert Spencer’s” ideas or to enforce laisse fair economics. By enforcing normative opinions into law (but hiding behind legal jargon) the Court used Substantive Due Process. Thus hypocrisy and bad jurisprudence seem to be the major crimes of the Lochner decision.

In the 20th century many changes, most unforeseen, occurred in society that forced the justices to adjust and reexamine the constitution to find the intent of the founders. This concept of the “living constitution,” championed by Brandies, held that experience, not logic, was the life of the law. The Warren court furthered and developed this principle throughout its lifetime. Changing technology, in this case the near perfection of contraceptive devices, coupled with changing societal mores regarding sexuality, and increased urbanization (and thus closer living) had created a problem never envisioned by the founders. “This new brand of privacy… was the direct by-product of technological advance, which created a sphere of personal choice never before imagined by earlier generations of Americans. (SB 569)” The Warren court envisioned the Griswold decision as a stopgap to fill a hole in the constitution. The elaboration of the right to privacy was seen as a reification of the geist of a right that already lurked in the constitution. As Prof. Gormley demonstrates in his article “A Hundred Years of Privacy,” the understanding of the appropriate role for privacy in Society changed significantly in the early 20th century from a weaker form he calls First Amendment Privacy to a stronger notion he calls Fundamental Decision Privacy. Unlike in Lochner, where the justification was perhaps hypocritical and without an attempt to understand deeper democratic constitutional principles, the Warren court was forging a new understanding of jurisprudence and the protection of rights. They were “search[ing] for the underlying principle of a rule before deciding to apply it to new situations. (Horowitz, 111)”

The Griswold decision, decided in 1965, dealt with a Connecticut law that “made it a crime for any person to use any drug or article to prevent contraception (SB 525).” Many opinions were given regarding the appropriate outcome, and the appropriate place in the constitution that might justify this outcome. the opinion of the court, written by Douglas, made the revolutionary claim that a “zone of privacy” is created by the convergence of various disparate parts (9th, 4th 1st, 3rd and 5th amendments, for example) of the constitution. This creates a Penumbra that gives the rights “life and substance (527).” The penumbra formed that protects against a search of the “sanctity” of the “marital bedroom” is the right to privacy. Though there is some continuity with Holmes and Brandies in their Olmstead dissents, Douglas nevertheless can be seen as “simply creating constitutional doctrine on the spot… [to] respond to what appeared to be a doctrinal impasse. (Tushnet, 76)” Whether this creation is justified is still hotly debated. Douglas explicitly rejects using the Lochner decision as a guide, distancing himself from the 14th amendment and most especially from Lochnerism. Goldberg, Warren, and Brennan choose to use the 9th amendment as a justification for overturning the CT law, while Harlan bites the bullet and uses the obvious (and dangerously reminiscent of Lochner) due process clause of the 14th amendment. Justice Black dissents, accusing the court of “using different words to claim for this court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable, or offensive. (SB 535)” In short, Black accuses the court of Lochnerism.

Whether one agree or disagrees with these cases, their similarity is, when one examined closely, quite different.

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