![]() ![]() The term gained popularity after its use to define the constitutionality of right to privacy by Justice William O. (A penumbra refers to a ‘zone’ of rights granted by the guarantees of the First, Third, Fourth and Ninth Amendments. Laws banning the use of contraceptives for married couples violated the Due Process Clause of the Fourteenth Amendment.Įstablished the ‘right to marital privacy’ as an unenumerated right created by penumbras within the Bill of Rights. ![]() Jackson and Justice Thomas’ concurring opinion Three, in particular, protecting rights to contraception, same-sex intimacy and same-sex marriage, were named in Justice Clarence Thomas’ concurring opinion, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell because any due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” Key cases involving the Fourteenth AmendmentĪs President Biden said in his reaction to the ruling, “If the rationale of the decision as released were to be sustained, a whole range of rights are in question.” Below is a table that helps identify some of these rights and illustrates the relationship between several key Supreme Court decisions that rely on the Fourteenth Amendment. Now that the Dobbs decision has rejected the extension of the Due Process Clause to unenumerated rights, several other Supreme Court decisions are under threat of reversal. It also features prominently in cases relating to controversial questions of American moral and social traditions, as the interpretation of ‘liberty’ evolves. The Due Process Clause is the reason the Fourteenth Amendment is one of the most litigated parts of the Constitution. ![]() Since then, several landmark Supreme Court decisions have used the clause to advance significant changes to the social and cultural traditions of the United States – from access to contraception and abortion to the protection of same-sex intimacy and marriage – not explicitly addressed in the Constitution. Connecticut (1965) decision removing bans on contraceptives for married couples was the first time the interpretation of constitutionally protected ‘unenumerated rights’ relating to life, liberty and property was expanded to include non-economic rights. This is because, rather than using the text of the Constitution to make legal judgements, these rulings rely on legal precedent, US history, and tradition to determine whether an unenumerated right should be constitutionally protected as a fundamental right.
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