I think if one looks to the actual history of the statute, one sees that there was no political majority to support it at the time it was struck down, nor had it been enforced recently. It was obsolete and no one’s rights were in danger. It was on the books in the same sense that laws against dancing or being upright after 7 p.m. are still on the books in states that have a Calvinist history; but there is no Calvinist majority with political clout, anywhere. So the question is not whether the statute should have been invalidated, but whether new rights should have been created when the statute was invalidated. I agree that the statute should have been struck down (and if the people really wanted it, they could go to the legislature and reenact it, which would not have happened, because turn-of-the-century Catholics had enacted the law and in the late 1960s the area was virtually all Protestant), but simply striking down the statute for desuetude would have been a judicially modest act. Creating newfangled rights was the problem. I’m not here to support contraceptive-banning statutes. Basically, no one is; no one was at the time of Griswold, either. That doesn’t mean one has an inalienable right to receive contraceptives in the public square. As for your “reading between the lines of the law” — that would be making up false history to support making up false constitutional rights. Talk about activism.

Your reading of the Massachusetts law which was stuck down in very textualist and ignores the legislative intent. I think that looking reading between the lines of the law one can see that they were trying to discourage the use of contraceptives (or at least discourage it among people too poor to buy condomns). That is where Griswold ties into Eisenstadt. The CT law and the MA law are after the same thing: keeping people from using contraceptives. I think that you are likely a bright enough person to figure out where this is going, so I’ll get to my second point.

What I was refering to above was not dicta, it was essential to the opinion; without that construction of the 4th and 5th, the fears of the invasion of the home required to enforce this law would fall completely outside of constitutional protection.

I think you are overstretching dicta. But even if your stretching of dicta makes law, it still doesn’t bridge the gap between Griswold and Eisenstadt. A single individual receiving contraceptives in public has nothing to do with a married man using contraceptives in the privacy of his home with his wife. If your reading of Griswold is correct, then the mere fact that you can get it on in the privacy of your home without governmental intrusion means that public sex acts cannot be criminalized. Remind me not to take my kids to the park when you’re in town.

I first must say that your argument is not without merit; if one is to very narrowly read Griswold to say that it “discovered” the right of married couples to use contraceptives within their bedrooms — or even that it created the right to privacy in the bedroom — then I must conceed that Eisenstadt is unreasonable. However, Douglas’s language in his analysis of the Fourth and Fifth Amendment’s “penumbras” suggests that he is actually finding a broader right to privacy. He states that the Fourth and Fifth Amendments constitute a “protection against all governmental invasions ‘of the sanctity of a man’s home and privacies of life.’”

Here’s the thing. It is categorically impossible for me to have made the argument without having carefully read the opinions, because I have carefully read the opinions and I did so before I made the argument. So, watch yourself. And, I hope that my use of italics did not threaten you.

1. It is categorically impossible for me to have made the criticism of your argument I made without having carefully read both Griswold and Eisenstadt. Watch yourself.

First of all, you shouldn’t tell people to watch themselves. It comes across as vaguely threatening.

Second of all, it is not at all “categorically impossible.” In fact, you needn’t have read the decisions at all, let alone carefully. You simply could have read an analysis saying basically what you say, and then repeated that analysis.

Commentator also wrote:

3. Citations are no substitute for reason and no cure for irrationality.

Neither is the bolding of text and use of all-capital sentences.

1. It is categorically impossible for me to have made the criticism of your argument I made without having carefully read both Griswold and Eisenstadt. Watch yourself.
2. The fact that Eisenstadt claims it is a necessary incident of Griswold does not prove that it is. I may say that my uncle is the Monkey King of Mars, that does not prove that I have an uncle. In fact, Griswold is based on marital privacy of the bedroom. That is not the rationale supporting Eisenstadt. Eisenstadt is a non-sequitur. Is it an expansion? Sure. BUT THAT WAS THE POINT: IT IS AN UNWARRANTED EXPANSION.
3. Citations are no substitute for reason and no cure for irrationality.

One could simply attack you for your misreading of Griswold. Griswold is founded on the marital privacy that inheres in the bedroom. It has nothing to do with the individual right to receive contraceptives in public, as does Eisenstadt, which is its non-sequitur progeny. Your reliance on Griswold is fine; but Roe is not a natural outgrowth of Griswold; neither is Lawrence. Roe and Lawrence descend from Eisenstadt, which came out of nowhere.

I only defended them as logical outgrowths of Griswold. I think that a serious constitutional scholar might attack me for my reliance on Griswold, which is an admittedly weak decision. If one assumes that there is a constitutional right to privacy contained in the 1st, 3rd, 4th 5th, 9th or anywhere else, the one would think that that privacy would extend to things that go on in the bedroom or body. I made no assertion regarding the grand scheme of things; my only assertion was that judges who buy into the idea that there is a right to privacy in the constitution (which is something about which reasonable people may disagree) are acting conscientiously in their defense of Roe et al, and are not merely asserting their policy preferences.

My second point did not question what Congress may or may not do; even a worthless 1L such as myself must conceed that the Exceptions Clause exists. I merely said that it is not WISE to use it to render constitutional pronouncements ineffective for the above reasons.

Roe is like Plyler v. Doe, no serious constitutional scholar defends these cases, except to point to the result and say that they should continue to be followed.

And yes, I am accusing the Supreme Court of not doing its duty.

With respect to jurisdiction, Congress has every right to do so. It’s funny how you’ll defend sorry decisions like Roe and Lawrence, but argue that a specific right granted to Congress in the constitution is not to be used.

So, the Court would face, for example, a privacy-based challenged to a state law. It would then say that it normally has jurisdiction to review federal questions presented by the challenge. The only way that it doesn’t is if the new statute divests it of jurisdiction. Well, the new statute divests it of jurisdiction only if the statute itself is valid.

Starts to sound a lot like the order of operations in Marbury, doesn’t it?

I think that your interpretation of Roe, Lawrence, etc. is a little unfair. Calling those cases “policy preferences” is to be accusing the Court of a dereliction of their duty to faithfully interpret acts of Congress. It seems to me that those cases are simply logical outgrowths of Griswold, and assuming that the Court accepts Griswold as good law, they are faithfully executing their responsibilities.

If, however, the people dislike the Constitutional pronouncements of the Court, then I think that the more appropriate way to ‘fix’ the problem would be to change the Constitution. If the Congress simply deprives the courts of their jusrisdiction to hear certain types of case, then they are: 1.) tacitly acknowledging that the current interpretation of the constition is correct, but are making the law unenforcable and 2.)creating volitility in our laws (what happens when the congress is full of gay atheists who want abortions?).