[2] The Supreme Court cites the fact that the law prohibiting use of contraceptives had been on the books since 1879 and that during the near-century of its having been enacted, only one prosecution, in 1940, was ever initiated.

Furthermore, the Court cites the fact that Connecticut drug stores openly sold contraceptives, and such an act invited enforcement far more than the private conduct being sued to allow, thus Connecticut is really not enforcing the law and the mere existence of the law does not give the Supreme Court cause to exercise its judicial review.

Plaintiffs appealed from the Connecticut Supreme Court of Errors (Buxton v. Ullman, 147 Conn. 48) which upheld that the use of contraceptive devices was prohibited and that furthermore doctor's could not provide medical advice in the use of contraceptive devices, even for married couples, and even if pregnancy could constitute a serious threat to the health or life of the female spouse.

Harlan described the "liberty" protected by that clause as "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

No formula could serve as a substitute, in this area, for judgment and restraint.Justice Harlan also noted that laws regulating homosexuality, fornication, and adultery could be permitted under this analysis: Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, [367 U.S. 497, 546] but has traditionally concerned itself with the moral soundness of its people as well.

Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal.

It is one thing when the State exerts its power either to forbid extramarital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.Justice Douglas's general view that the Bill of Rights' guarantees, broadly construed, overlapped to produce social spheres and Associations insulated from government interference separate from the core political purposes of the Bill of Rights became the majority opinion in Griswold v. Connecticut.

The actor on stage or screen, the artist whose creation is in oil or clay or marble, the poet whose reading public may be practically nonexistent, the musician and his musical scores, the counselor whether priest, parent or teacher no matter how small his audience -- these too are beneficiaries of freedom of expression.

The remark by President James A. Garfield that his ideal of a college was a log in the woods with a student at one end and Mark Hopkins at another (9 Dict.Am.Biog., p. 216) puts the present problem in proper First Amendment dimensions.

If we imagine a regime of full enforcement of the law in the manner of an Anthony Comstock, we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.

"One of the earmarks of the totalitarian understanding of society is that it seeks to make all subcommunities -- family, school, business, press, church -- completely subject to control by the State.

Instead, it seeks to be coextensive with family and school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State.

The idea of allowing the State that leeway is congenial only to a totalitarian regime.While Griswold v. Connecticut's conception of privacy was later characterized as establishing heightened scrutiny of bans upon contraception, Douglas rejected such an approach.

Where either the sale or the manufacture is put under regulation, the strictures are on business and commercial dealings that have had a long history with the police power of the States.

Conn.Gen.Stat.1958, § 53-32.Douglas also emphasized that he believed all of the Bill of Rights applied to the States, consistent with Justice Black's dissent in Adamson v. California.

As MR. JUSTICE BRENNAN recently stated, "The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty.

[3] Souter wrote that Harlan's dissent used substantive due process, and recent cases demonstrated the "legitimacy of the modern justification" for that approach.

Justice Douglas's approach was adopted in Griswold v. Connecticut, and appeared in other cases such as Lombard v. Louisiana, Bell v. Maryland, and Doe v. Bolton.

Douglas's preferred approach to incorporation—treating the dissent in Adamson v. California as definitive on the issue of the Bill of Rights—would largely be overlooked by the Supreme Court until Justice Thomas's opinion in McDonald v. City of Chicago.