“Liberty” is where lawyers can get creative in pushing for new constitutional rights

How Supreme Court’s Understanding of ‘Liberty’ in Gay Marriage Case Could Have Repercussions


by Elizabeth Slattery

Justice Samuel Alito joined Weekly Standard editor Bill Kristol for a 90-minute conversation about life, baseball and a few recent Supreme Court decisions.

Alito expressed concern about what “liberty” means following the decision in Obergefell v. Hodges.

The 14th Amendment’s Due Process Clause, which prohibits the deprivation of life, liberty or property without due process of law, has been an avenue for protecting substantive rights since at least the early twentieth century. Alito said:

[T]he jurisprudential question is what limits the definition—how do we determine what liberty in the 14th Amendment means? Liberty means different things to different people. For libertarians, for classical liberals, it does include the protection of economic rights and property rights. For progressive social democrats, it includes the protection, a right to liberty means freedom from want.

Alito described what he sees as the current Supreme Court’s conception of liberty, as evidenced by the majority opinion in Obergefell, which was authored by Justice Anthony Kennedy.

The Court’s conception…is a very postmodern idea; it’s the freedom to define your understanding of the meaning of life. … It’s the right to self-expression. So if all of this is on the table now, where are the legal limits on it?

Alito pointed out that under this view, “liberty” is in the eye of the beholder: A libertarian Supreme Court justice might be willing to throw out minimum wage laws under the “liberty of contract” or zoning laws as violating property rights; a socialist justice might decide that “liberty” includes free college tuition and a guaranteed annual income.

Alito noted that, in earlier cases, the Court had attempted to place limits on what “liberty” protects.

Since “life” and “property” are relatively clear, “liberty” is where lawyers can get creative in pushing for new constitutional rights.

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