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Unformatted text preview: fth, and ninth amendments. n47 This right included the freedom of married couples to decide for themselves what to do in the "privacy" of their bedrooms. Two years later, in Loving v. Virginia, n49 the Court struck down a law criminalizing interracial marriage. The Court ruled that states could not interfere in that manner with an individual's choice of whom to marry. On similar grounds, the Court also invalidated laws restricting the ability of poor persons to marry or to divorce. ONE MAY ESTABLISH A CONSTITUTIONAL JUSTIFICATION FOR PRIVACY William C. Heffernan , Associate Professor of Law, John Jay School of Criminal Justice and the Graduate Center, The City University of New York, PRIVACY RIGHTS , Suffolk University Law Review, Fall, 1995, 757 Madison reasons in terms of a formula familiar to eighteenth century readers -- that rights are a form of property and that the most valuable type of property is human rights. Two other points, which also would not have surprised eighteenth century readers, are particularly important. One relates to Madison's hierarchical ranking of human goods. He explicitly asserts that intensely personal activity -- not simply the communication of opinions, but also the exercise of human passions -- is a more important good than the good associated with dominion over external things. Second, in speaking of rights as a type of property, Madison advances a formula particularly appropriate for thinking about rights associated with personal life: that individuals can properly lay claim to such rights as long as their conduct "leaves to everyone else the like advantage." These points create a foundation for thinking about the Constitution's protection of personal autonomy rights, a foundation that accords priority to the conduct of personal, as opposed to commercial, life and insists on recognition of personal rights provided these rights remain available to all citizens. In expanding on these points later in the Article, I do not contend that they suffice to establish the constitutional legitimacy of sexual autonomy rights...
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This document was uploaded on 11/20/2013.
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