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While a right to privacy is not explicitly named in the Constitution, what clause has the court used to protect this right from state infringement?

Question

While a right to privacy is not explicitly named in the Constitution, what clause has the court used to protect this right from state infringement?

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Solution

The Supreme Court has used the Due Process Clause of the Fourteenth Amendment to protect the right to privacy from state infringement. Here are the steps explaining how:

  1. The Fourteenth Amendment to the United States Constitution was adopted after the Civil War, in 1868. It includes a clause known as the Due Process Clause, which states that no state shall "deprive any person of life, liberty, or property, without due process of law."

  2. The term "liberty" in this clause has been interpreted by the Supreme Court to include a general right to privacy. This interpretation began in the late 19th and early 20th centuries, in cases such as Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which recognized a right to educate one's children as one chooses.

  3. The right to privacy was more explicitly recognized in Griswold v. Connecticut (1965), where the Supreme Court struck down a state law prohibiting the use of contraceptives, even for married couples. The Court found that this law violated a "right to marital privacy."

  4. Since then, the right to privacy has been used to protect a range of personal decisions and activities from state interference, including the right to use contraceptives (Eisenstadt v. Baird, 1972), the right to abortion (Roe v. Wade, 1973), and the right to engage in consensual homosexual activity (Lawrence v. Texas, 2003).

  5. It's important to note that the right to privacy is not absolute and can be limited by the state in certain circumstances, such as when there is a compelling state interest. The exact boundaries of this right are still a matter of ongoing legal debate.

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