The latest Conversations With Bill Kristol interview is with Justice Alito. In addition to detailing the behind-the-scenes nuts and bolts of how the Supreme Court justices discuss and decide cases and assign opinions, the justice talks about his concerns about the court's decision to find a constitutional right to gay marriage in the "liberty" protection of the 14th Amendment:
the decision was based on, really, one word in the 14th Amendment. The Due Process Clause of the 14th Amendment prohibits the deprivation of life, liberty, or property without due process of law. So this was all based on liberty and on a substantive protection of liberty, not a procedural protection, which is what you might think the Due Process Clause was about, but substantively the Constitution protects certain liberties, the Court held. And the right to same-sex marriage is one of those liberties.
The idea of substantive due process has been very controversial throughout the Court's history. It was a prominent feature in a number of pre-New Deal Supreme Court decisions where it was used to protect property rights. And the New Deal Constitutional Revolution tried to either kill off substantive due process completely or relegate it to very, very minor role.
But it has experienced a revival in more recent years, not in the area of property rights, but in the area of some non-property individual rights, including same-sex marriage. So the 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, etc., etc. Government benefits.
And there are many other conceptions. The Court's conception, I said in this opinion and I believe to be true, is a very postmodern idea; it's the freedom to define your understanding of the meaning of life. Your – it's the right to self-expression. So if all of this is on the table now, where are the legal limits on it?
If a libertarian is appointed to the Supreme Court, is it then proper for the libertarian to say, "Well, I think that there is a right to work less than the minimum wage? I think there is a right to work as many hours as I want without being limited by the government. I think I have the right to build whatever I want on my property irrespective the zoning laws and so forth."
If a socialist is appointed to the Supreme Court, can the socialist say, "I think that liberty and the 14th Amendment means that everyone should have a guaranteed annual income or that all education through college should be absolutely free," or whatever. There's no limit.