Griswold, the watershed case for the right to privacy, was also a major reaffirmation of the Court's view of "fundamental rights", clearly defined in Palko v. Connecticut in 1937.

At issue was an 1879 Connecticut law which made it a crime to use any article or drug to prevent conception. After two recent cases testing the law's constitutionality failed to reach the Supreme Court for technical reasons, in 1965 the Planned Parenthood League of Connecticut, two of whose executives had been convicted for supplying contraceptive information and advice, brought their appeal before the Court.

The Court reversed the conviction 7-2 on the basis that the statute infringed the constitutionally protected right to privacy of married persons. While the majority was clear, the issues leading to the decision were not, as evidenced by the variety of concurring opinions.

Since the Palko decision, the Court had continued to affirm the existence of unwritten fundamental rights, such as the right to procreate, the right to travel abroad, and the right to resist certain invasions of the body. It applied these rights to the states in the same manner as those enumerated in the Bill of Rights, using standard incorporation doctrine, and went so far as to suggest that laws effecting these rights receive closer scrutiny than those regulating economic relations.

Griswold went a significant step further in assigning these rights the full, formal protection of the Constitution. On this point, the concurring opinions differed. Justice William O. Douglas, a staunch defender of personal rights, found that the guarantees found in the Bill of Rights "… have penumbras, formed by emanations from those guarantees that help give them life and substance."

As the Court had discovered a "right of association" inherent in the First Amendment in NAACP v. Alabama, Justice Douglas now found "zones of privacy" implied in the First, Third, Fourth, Fifth and Ninth Amendments.

Justice Arthur Goldberg concurred with the Douglas argument, and added a very pregnant point as regards the original framing of the Bill of Rights, that "liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the [Bill]." He added that the Ninth Amendment provided significant protection for the incorporation of rights "so rooted in the traditions and conscience of our people so as to be ranked fundamental."

Justices John Harlan and Byron White agreed with the concept of fundamental right, but disengaged it completely from the Bill of Rights or the Fourteenth Amendment, and from Justice Douglas' "emanations" argument. In their view the Court both needed and owned the freedom to develop future rights constrained only by the forces of history and cultural values, and balanced by compelling state interests.

Dissenting Justices Hugo Black and Potter Stewart, while disavowing the Connecticut statute, did not feel it raised constitutional issues, and the Court's involvement therefore constituted arbitrary use of judicial power. In a point even more poignant than Justice Goldberg's, Justice Black argued that "use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention." Such a power shift would, in his opinion, "… be bad for the courts and worse for the country." Mr. Justice, we are there.

This case has had broad implications in the discovery of new rights and, true to the warnings of the dissenters, in judicial amendment of the Constitution. While the concept of a right to privacy discovered here seems obvious in the presumption of freedom inherent in Americanism, and should effect no one else's equal freedom, the theories advanced by the Griswold majority join those in other contemporary cases to begin the era of judicially managed social reengineering and responses to cultural swings that have created a multiplicity of opposed, contradictory and irreconcilable "rights".