In a recent interview with columnist, Bill Kristol, Justice Samuel Alito expressed his concern regarding the recent Supreme Court opinion of Obergefell v. Hodges.[1]  Alito suggested that the concept of “liberty” envisioned in Justice Anthony Kennedy’s majority opinion could lead to many problems.  According to Alito, the same-sex marriage case turned on the definition of the word “liberty” in the 14th Amendment.  Prior to this case, the court had limited liberty to rights “that were deeply rooted in the traditions in the country.”  But Kennedy’s marriage ruling “. . .threw that out.”

“We are at sea I think.  I don’t know what the limits of substantive liberty protection under the 14th Amendment are at this point.”

Russell Berman, writing for Atlantic Magazine, quotes Michael Dorf, a professor of constitutional law at Cornell University as saying that “the conservatives’ use of history is highly selective.”[2]  Alito’s desire to rely on historical interpretation is no more than an ideological choice itself.  Dorf points out in the article that it was Alito and his fellow conservatives on the court who threw out the court’s historical interpretation of the 2nd Amendment in finding an individual right to bear arms.  Dorf asks the following question,

Why do the conservatives, including Alito, say nary a word about the historical understanding of race-conscious government programs when they strike down affirmative action programs?  Could it be because their own ideological preferences make what they would find there uncomfortable?

Phrased by Russell Berman the most interesting question that Justice Alito raises is whether the court has actually expanded the definition of liberty to the degree he suggests it has.

by Patrick Gaffney

by Patrick Gaffney

[1] 2015 The Foundation for Constitutional Government, Inc.

[2] Russell Berman writing for Atlantic Magazine July 21, 2015