787, Professor Redlich, in advocating reliance on the Ninth and Tenth Amendments to invalidate the Connecticut law before us, frankly states: 'But for one who feels that the marriage relationship should be beyond the reach of a state law forbidding the use of contraceptives, the birth control case poses a troublesome and challenging problem of constitutional interpretation. I have no doubt that the Connecticut law could be applied in such a way as to abridge freedom of speech and press and therefore violate the First and Fourteenth Amendments. 804, 3 L.Ed.2d 877; Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. 328, 9 L.Ed.2d 405; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 526, 11 L.Ed.2d 481, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 736, 749, 750, 86 L.Ed. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. Had the doctor defendant here, or even the nondoctor defendant, been convicted for doing nothing more than expressing opinions to persons coming to the clinic that certain contraceptive devices, medicines or practices would do them good and would be desirable, or for telling people how devices could be used, I can think of no reasons at this time why their expressions of views would not be protected by the First and Fourteenth Amendments, which guarantee freedom of speech. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. Compare Poe v. Ullman, 367 U.S., at 543—544, 81 S.Ct. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. 1229, 14 L.Ed.2d 106. 900, 84 L.Ed. The two defendants here were active participants in an organization which gave physical examinations to women, advised them what kind of contraceptive devices or medicines would most likely be satisfactory for them, and then supplied the devices themselves, all for a graduated scale of fees, based on the family income. 862, 863, 87 L.Ed. 1203, 1211, 1217—1218, 1 L.Ed.2d 1311; Barenblatt v. United States, 360 U.S. 109, 112, 79 S.Ct. 1659; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty,' Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. dealt with true First Amendment rights of association and are wholly inapposite here. Various guarantees create zones of privacy. 1903, I said: 'If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process.'. It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. 787 (1962), and Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind.L.J. The Court stated many years ago that the Due Process Clause protects those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. 1138, the Court said: 'For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.' II Story, Commentaries on the Constitution of the United States 626—627 (5th ed. The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.
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