Justice Samuel Alito, in a conversation with Bill Kristol, complains that the Supreme Court’s ruling on same-sex marriage frightens him because it could lead to a sort of runaway liberty that would be horrible because…well, he doesn’t really say why. It just is.
In a taped conversation with Weekly Standard editor Bill Kristol, Alito decried the way he believed the marriage decision, Obergefell v. Hodges, defined the definition of liberty guaranteed by the Constitution’s 14th Amendment to be “the freedom to define your understanding of the meaning of life.”
“There’s no limit,” Alito said, arguing that the Rehnquist court had tried limit such legal definitions of liberty to be “deeply rooted in the traditions of the country.”
“But the Obergefell decision threw that out,” Alito said, as the Daily Beast noted. “It did not claim that there was a strong tradition of protecting the right to same-sex marriage. This would have been impossible to find.”
Without these legal limits on the definition of liberty, Alito speculated that future justices could grant constitutional rights on the basis of their ideological whims, and practically, the nomination of judges will become more like a political election.
“So 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,” he said.
Like all that rhetoric about “judicial activism” and “unelected judges in black robes,” this is a very familiar complaint. We hear it every time the Supreme Court expands on the sphere of protected rights that are not specifically listed in the Constitution — but only by those who oppose that expansion of rights. When they agree with it, that rhetoric suddenly disappears.
It’s true that Justice Kennedy’s rulings in four Supreme Court cases involving gay rights has been moving toward a broader and more expansive definition of personal autonomy and liberty. He has rested those rulings not merely on a right to privacy but on a broader right to personal liberty, particularly when it comes to highly personal decisions involving personal intimacy. But I regard that as a very good thing, not a bad thing.
Alito objects to the idea of protecting “the freedom to define your understanding of the meaning of life,” but he offers no reason for that objection. Each individual should be free to define the meaning in their lives, to take those actions that they believe are right so long as those actions do not violate the rights of others or harm them against their will. This is precisely what Thomas Jefferson meant in a letter to Isaac Tiffany in 1819 when he wrote:
Of Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.
If my actions do not deprive others of their equal rights or harm them against their will, those actions should be of no concern to the government. It is only authoritarians like Alito who think that one person’s desire to control their own lives and another’s desire to control the lives of others are equally legitimate. They are not.