“As used in the Due Process Clauses, 'liberty' most likely refers to 'the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law'. That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure. Both of the Constitution’s Due Process Clauses reach back to Magna Carta. Chapter 39 of the original Magna Carta provided ', No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land'. Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: 'No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.”

— Clarence Thomas

In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words 'by the law of the land' to mean the same thing as 'by due proces of the common law'.
Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015).
2010s

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Clarence Thomas 100

Associate Justice of the Supreme Court of the United States 1948

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“After Magna Carta became subject to renewed interest in the 17th century, William Blackstone referred to this provision as protecting the 'absolute rights of every Englishman'. And he formulated those absolute rights as 'the right of personal security', which included the right to life; 'the right of personal liberty'; and 'the right of private property'. He defined 'the right of personal liberty' as 'the power of loco-motion, of changing situation, or removing one's person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law'. The Framers drew heavily upon Blackstone's formulation, adopting provisions in early State Constitutions that replicated Magna Carta's language, but were modified to refer specifically to 'life, liberty, or property'. State decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word 'liberty' to refer only to freedom from physical restraint. Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015).
2010s

“In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the 'life, liberty, or property' formulation, though they otherwise deviated substantially from the States' use of Magna Carta's language in the Clause. When read in light of the history of that formulation, it is hard to see how the 'liberty' protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when 'liberty' was paired with 'life' and 'property'. And that usage avoids rendering superfluous those protections for 'life' and 'property.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

If the Fifth Amendment uses 'liberty' in this narrow sense, then the Fourteenth Amendment likely does as well.
Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015).
2010s

“Even if the doctrine of substantive due process were somehow defensible, it is not, petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all, whether under a theory of 'substantive' or 'procedural' due process, a party must first identify a deprivation of 'life, liberty, or property'. The majority claims these state laws deprive petitioners of 'liberty', but the concept of 'liberty' it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015).
2010s

“The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.”

John Marshall Harlan II (1899–1971) American judge and Associate Justice of the Supreme Court (1899-1971)

Concurring in Griswold v. Connecticut, 381 U.S. 479 (1965).

“The majority's decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing 'due process' before a person is deprived of his 'life, liberty, or property'. I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. It distorts the constitutional text, which guarantees only whatever 'process' is 'due' before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015).
2010s

“Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.... That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Potter Stewart (1915–1985) American judge

Concurring, Roe v. Wade, 410 U.S. 113, 169-170 (1973).

“It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property.”

Charles Evans Hughes (1862–1948) American judge

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

“[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim.... The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided....”

Antonin Scalia (1936–2016) former Associate Justice of the Supreme Court of the United States

On the right to sodomy: Lawrence v. Texas (2003) (dissenting).
2000s

“A parallel case was the Fugitive Slave Act. Article IV of the Constitution says that any person held to the service or laborer in any state escaping to another state shall not be discharged from such service or labor, but shall be returned to the one to whom the service or labor is due. This is the Fugitive Slave Clause of the Constitution.”

Harry V. Jaffa (1918–2015) American historian and collegiate professor

2000s, The Real Abraham Lincoln: A Debate (2002), The Lincoln-Douglas Debates

“By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue 'beyond the reach of the normal democratic process'. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a 'bare majority' of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only 'due process' is but further evidence of the danger of substantive due process.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015).
2010s

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