“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

— Anthony Kennedy

Lawrence v. Texas, 539 U.S. 558 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02-102 (26 June 2003).

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Anthony Kennedy28

Associate Justice of the Supreme Court of the United States 1936

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“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 instant case involves liberty of the person both in its spatial and more transcendent dimensions…. Bowers was not correct when it was decided, and it is not correct today…. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Anthony Kennedy (1936) Associate Justice of the Supreme Court of the United States

Lawrence v. Texas, 539 U.S. 558 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02-102 (26 June 2003).

“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

“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).

“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. Many argue that a just society grants a right to engage in homosexual conduct. If that view is accepted, the Bowers decision in effect says the State of Georgia has the right to make a wrong decision — wrong in the sense that it violates some people's views of rights in a just society. We can extend that slightly to say that Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.”

Anthony Kennedy (1936) Associate Justice of the Supreme Court of the United States

[Unenumerated Rights and the Dictates of Judicial Restraint, Address to the Canadian Institute for Advanced Legal Studies, Stanford University. Palo Alto, California., http://web.archive.org/web/20080627022153/http://www.andrewhyman.com/1986kennedyspeech.pdf, 24 July 1986 to 1 August 1986, 13] (Also quoted at p. 443 of Kennedy's 1987 confirmation transcript http://www.gpoaccess.gov/congress/senate/judiciary/sh100-1037/browse.html).

“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. <br class="br"> Obergefell v. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf (26 June 2015). <br class="br">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). <br class="br">2010s

“The original intent of the 14th Amendment, and of the Congress and the American people who ratified it, can best be understood in the light of the change it effected in antecedent constitutional law. Taney's opinion in Dred Scott was still in effect as the Civil War came to an end. By it Negroes, whether free or slave, could not be citizens of the United States. Although the 13th Amendment abolished slavery, it did not settle the question of Negro citizenship. This was however decided by the opening sentence of the 14th Amendment. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The intent of this sentence could however be frustrated if it were possible to make distinctions within citizenship, by which some citizens would have more rights, and others less. It was to prevent this that the Amendment went on to declare that "No State shall… deny to any person within its jurisdiction the equal protection of the laws."”

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

2000s, The Logic of the Colorblind Constitution (2004)

“Charlton Heston… recently was re-elected president of the NRA for the third term. And they made an exception, because their charter, their constitution, says you can only have two terms, but they changed it. Ah. So constitutions can change. Interesting. Because it is called the Second Amendment. The word "amendment" itself means, "We had another thought! We re-thought something!"”

Bill Maher (1956) American stand-up comedian

Be More Cynical (2000)

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Anthony Kennedy28

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