Daniel Patrick Moynihan and others have written volumes about how the Great Society destroyed the American family. But the pivotal role played by Republican appointees on the U.S. Supreme Court, in nullifying laws intended to encourage the formation of two-parent families, has gone largely unremarked.

The lightning rod for change was a Connecticut statute which forbade the sale of contraceptives, even to married couples. The Court rejected a 1943 challenge to this statute in Tileston v. Ullman because the plaintiff (a doctor) lacked standing, and another in 1961 in Poe v. Ullman because, among other things, the statute was not enforced.

Still, the dissenting opinion in Poe v. Ullman—by President Eisenhower’s first Supreme Court appointee, John Harlan—would drive due process jurisprudence in the wrong direction for the next three decades.

By 1961, earlier disputes over the meaning of the Due Process Clause, as it relates to the validity of a statute, had led to an understanding that an allegedly “arbitrary imposition or purposeless restraint” could be declared unconstitutional. Whether an imposition or restraint was “arbitrary or purposeless,” however, had to be determined by an objective test: Would a reasonable person find that, even when viewed in its most favorable light, the imposition or restraint had no tendency to advance any goal of the statute?

In his dissent in Poe, Justice Harlan rejected the limits that this test imposed upon the Court, arguing that “the best that can be said” about the Due Process Clause is that its “content” will be supplied by the Court, and claiming for the Court what Justice Hugo Black, FDR’s first Court appointee, would call a judicial veto power. “Certainly,” said Harlan, “Connecticut’s judgment is no more demonstrably correct or incorrect than are the varieties of judgment, expressed in law, on marriage and divorce, on adult consensual homosexuality, abortion, and sterilization, euthanasia and suicide.” Still, he voted to veto it.

In 1963, in Ferguson v. Skrupka, the pendulum seemed to swing decisively away from Harlan’s position. Writing for a majority which included all justices except Harlan, Justice Black again affirmed that “due process” does not justify courts in substituting “their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”

However, two years later, the Connecticut statute was back before the court in Griswold v. Connecticut. While the Griswold majority was unwilling to invalidate the statute on the basis of Harlan’s view that due process “stands . . . on its own bottom,” it did conjure up alternative grounds, supported by Chief Justice Earl Warren and Justice William Brennan. The statute is void, said the Griswold majority, because it is in conflict with a claim of privacy which “presses for recognition here . . . ” That’s right, “presses.”

Claiming to protect society’s deeprooted “right of privacy in marriage,” the Griswold majority ignored the contractual nature of marriage and purported to rely upon “penumbras formed by emanations” from other express rights found in the Constitution. Twenty-seven years later, the Court would effectively acknowledge that, in Griswold, it reduced constitutional liberty to therapeutic freedom or “license,” which repudiates commitment and discounts the Constitution’s historic concern for family and community well-being. Griswold, said five Republican-appointed justices in the 1992 Casey case, established the wholly selfish “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Robert Bork calls this the “mystery” phrase.

But there’s no mystery, as Morton Kondracke has noted, about its effect:

Sexual liberation has gone way too far . . . all kinds of people are suffering as a result. . . . [I]nfluential grown-ups ought to encourage old-fashioned virtues—like self-discipline and the postponement of gratification—instead of encouraging young people, as much of the media certainly do, to [blank] their brains out.

If the concern in Griswold actually had been to protect “the right of privacy in marriage,” all that was required was to hold that the marriage relationship is protected by the Contract Clause. So interpreted, the marital relationship would have received its historical protection from a Court relying on the written Constitution, not “making it up” as it went along; its holding would not have been so broad as to encourage promiscuity, and the future interests of society would have been served by a decision that upheld the advantages of marriage. The Contract Clause offered —and still offers—a way of protecting “privacy in marriage,” without destroying the obligation of commitment.

Unfortunately, Griswold released “the brakes” on the counterculture’s promiscuous, discipline-averse worldview of “immediate gratification.” The fundamental character of our governance was changed by judicial fiat. The mid-1960’s, said former Speaker Newt Gingrich in To Renew America, marked the beginning of a “collapse in our ability to teach ethical behavior to our own people.”

Easing the nation into the full implications of the therapeutic meaning which Griswold ascribed to constitutional liberty required a degree of deception. The Griswold majority itself gave false assurances that it was drawing the line at promiscuity.

We deal with a right of privacy older than the bill of rights . . . : Marriage, a coming together for better or for worse, hopefully enduring, and intimate to a degree of being sacred. It is an association that promotes a way of life . . . a harmony in living . . . a bilateral loyalty.

The concurring justices gave similarly false assurances. “The Court’s holding today . . . in no way interferes with a state’s proper regulation of sexual promiscuity or misconduct.” Statutes proscribing “all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital” are “a permissible and legitimate legislative goal.”

But soon, Griswold‘s purported special exception for “a right of privacy older than the bill of rights” and the anti-promiscuity statements of the concurring justices would amount to nothing.

In King v. Smith (1968), the Court held that AFDC’s “man-in-the-house” rule was valid for married couples, but not for unmarried couples. “Alabama’s . . . interests in discouraging immorality and illegitimacy would have been quite relevant at one time in the history of the AFDC program,” wrote Chief Justice Earl Warren. But no more. From then on, the Court held, benefits could be stopped only if the “legal” father remained in the home.

Two years later, in Goldberg v. Kelly, the privilege of public assistance was converted into a property right which could not be terminated without a trial. To justice Black, this holding was utter nonsense:

[A]lthough some recipients might be on the lists for payment wholly because of deliberate fraud on their part, the Court holds that the government . . . must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe . . . I know of no situation in our legal system in which the person alleged to owe money . . . is required to continue making payments to a judgment-proof claimant without . . . bond to insure that these payments can be recovered if he wins his legal argument.

In Eisenstadt v. Baird (1972), Justice Brennan put the Court squarely on the side of the counterculture: “Whatever the rights of the individual to access to contraceptives may be, the rights must be the same,” said the Court in obvious contradiction of its prior position, “for the unmarried and the married alike.”

This already libertine reading of the Constitution would be extended, in Carey v. Population Services (1977), to cover sex between children. Carey is still the law of the land. Graduates of some of America’s most famous law schools, people reputed to be our “best and brightest,” furrowed their brows, listened to learned arguments, pondered the issues for months, and then declared that state legislatures have no power to discourage sex by unmarried minors. At least two justices appeared to grasp that the Carey majority’s liberal impulse had again strayed into the fringes of anarchical madness. As Justice Lewis Powell said, ” . . . the extraordinary protection the Court would give to all personal decisions in matters of sex is neither required by the Constitution nor supported by our prior decisions.” Justice William Rehnquist could barely disguise his disgust:

The Court holds that New York may not use its police power to legislate in the interests of its concept of the public morality as it pertains to minors . . . There comes a point when endless and ill-considered extension of principles originally formulated in quite different cases produces such an indefensible result that no logic chopping can possibly make the fallacy of the result more obvious.

Nor was this all. Whatever remained of judicial support for the commitment to the marriage contract disappeared in Moore v. East Cleveland (1977). “A couple and their dependent children” said the Moore majority, are merely an “arbitrary boundary—the boundary of the nuclear family.” By weakening the culture, the Court fueled the expensive and counterproductive programs of the Great Society.

In its primary sense, “promiscuity” means the disposition to give in to “all our impulses” whether good or bad. It is a reversal of the civilizing process and, since surrendering to impulse cannot be confined to sexuality, has consequences on a number of levels. To many a kid, adults notorious for breaking the Sixth Commandment, whether parents or presidents, are just self-absorbed adults notorious for breaking Commandments.

How else could today’s problem of so many kids without role models have developed? The murderous outbursts by children, unlike anything known in prior times, and the remorselessness of youthful predators, are manifestations of a promiscuity which has advanced to the next stage.

To understand the Court’s role in derailing our culture, consider the arguments of those who contend that the interpretation of text should be approached from the point of view of the reader, rather than that of the authors. “Some interpretative perspective,” says Duke University Professor Stanley Fish, inventor of the reader-response theory of interpretation, “will always rule by virtue of having won out over its competitors.”

In some applications, Professor Fish’s observation may not be wrong. In construing the message of revelational or poetical text—cases where the author is deemed a mere conduit for thoughts inspired by a higher power—large aggregations of various faithful have long claimed the right to approach it from their own vantage point. But the way in which a whole society approaches the interpretation of a constitution, expressing as it does the conclusions of a convention of delegates, must be different. Yet Justice Harlan recognized no difference. What mattered in interpreting constitutional provisions, he said in Poe, was “not their text . . . not the statement itself “

Surely, Justice Harlan was wrong.

A written constitution does not cease to be a memorandum of what the people consented to, merely because time has passed. Nor are justices released from their oaths to uphold this compact, merely because the founding generation is dead. Ours is a living constitution because it applies to new situations that are within the contemplation of its clear provisions and because it can always be updated with amendments. But it is not a living document in the sense that some provisions “grow,” while others “whither,” according to the whim of the current Court.

Can the judicial veto, a power which the delegates in Philadelphia in 1787 pointedly refused to create, be safely ignored, since recently the Court has seemed a bit more respectful of democratic decision-making? I think not.

On issues of policy, experience has shown that the breadth of the legislative hall provides far greater wisdom—and far less risk of locking us into a foolish position—than the narrowness of the courtroom.

As long as the judicial veto is not repudiated, there is a temptation to use it. As Justice Black warned in Adamson v. California:

[This] formula . . . has been used in the past, and can be used in the future, to license this court . . . to roam at large in the broad expanses of policy and morals . . . a responsibility which the constitution entrusts to the legislative representatives of the people.

If, as I believe, bad judgment, not bad faith, is the culprit, it should be possible to reclaim the Constitution’s limits on judicial review simply by adding a couple of definitions to the Constitution:

Liberty, as used in this Constitution, means liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people.


The test for what is arbitrary or purposeless in the review of such a law is not whether the Judiciary approves the law, but whether a reasonable legislature could have believed that it tended, from any point of view or in any degree, to promote the people’s health, safety, morals, or welfare.

With these additions, we would restore the legislature as the policy-making department of government and help convince the American people that the votes that they cast for their elected representatives are not futile.