“Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just.”

Boddie v. Connecticut, 401 U.S. 371, 374-75 (1971).

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John Marshall Harlan II9

American judge and Associate Justice of the Supreme Court (… 1899–1971

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“It is frequently charged that this tribunal is tyrannical. If the Constitution of the United States be tyranny; if the rule that no one shall be convicted of a crime save by a jury of his peers; that no orders of nobility shall be granted; that slavery shall not be permitted to exist in any state or territory; that no one shall be deprived of life, liberty or property without due process of law; if these and many other provisions made by the people be tyranny, then the Supreme Court when it makes decisions in accordance with these principles of our fundamental law is tyrannical. Otherwise it is exercising the power of government for the preservation of liberty. The fact is that the Constitution is the source of our freedom. Maintaining it, interpreting it, and declaring it, are the only methods by which the Constitution can be preserved and our liberties guaranteed.”

Calvin Coolidge (1872–1933) American politician, 30th president of the United States (in office from 1923 to 1929)

1920s, Ordered Liberty and World Peace (1924)

“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). <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 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

“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).

“The moral foundation of authority is neither as solid nor as wide, under a regime of monopoly or of communism, as it could be under a regime of liberty.”

Gustave de Molinari (1819–1912) Belgian political economist and classical liberal theorist

Source: The Production of Security (1849), p. 50

“Five more times in the succeeding pages of his penciled petition Gideon spoke of the right to counsel. To try a poor man for a felony without giving him a lawyer, he said, was to deprive him of the due process of law.”

Anthony Lewis movie Gideon's Trumpet

[8, Anthony, Lewis, w:Anthony Lewis, Vintage, 1989, 9780679723127, Gideon's Trumpet, http://books.google.com/books?id=IhDfidRb5wIC&pg=PA8&hl=en#v=onepage&q&f=false]

“There is no intrinsic virtue to law and order unless 'law' is equated with justice and 'order' with the discipline of a people satisfied that justice has been done. Law as an instrument of state oppression is a familiar feature of totalitarianism. Without a popularly elected legislature and an independent judiciary to ensure due process, the authorities can enforce as 'law' arbitrary decrees that are in fact flagrant negations of all acceptable norms of justice. There can be no security for citizens in a state where new 'laws' can be made and old ones changed to suit the convenience of the powers that be.”

Aung San Suu Kyi (1945) State Counsellor of Myanmar and Leader of the National League for Democracy

In Quest of Democracy (1991)
Context: The words 'law and order' have so frequently been misused as an excuse for oppression that the very phrase has become suspect in countries which have known authoritarian rule. [... ] There is no intrinsic virtue to law and order unless 'law' is equated with justice and 'order' with the discipline of a people satisfied that justice has been done. Law as an instrument of state oppression is a familiar feature of totalitarianism. Without a popularly elected legislature and an independent judiciary to ensure due process, the authorities can enforce as 'law' arbitrary decrees that are in fact flagrant negations of all acceptable norms of justice. There can be no security for citizens in a state where new 'laws' can be made and old ones changed to suit the convenience of the powers that be. The iniquity of such practices is traditionally recognized by the precept that existing laws should not be set aside at will.

“Our gathering here today is in testimony of supreme obligation to those who have given most to make and preserve the Nation. They established it upon the dual system of State government and Federal Government, each supreme in its own sphere. But they left to the States the main powers and functions of determining the form and course of society. We have demonstrated in the time of war that under the Constitution we possess an indestructible Union. We must not fail to demonstrate in the time of peace that we are likewise determined to possess and maintain indestructible States. This policy can be greatly advanced by individual observance of the law. It can be strongly supplemented by a vigorous enforcement of the law. The war which established Memorial Day had for its main purpose the enforcement of the Constitution. The peace which followed that war rests upon the universal observance of the Constitution. This Union can only be preserved, the States can only be maintained, under a reign of national, local, and moral law, under the Constitution established by Washington, under the peace provided by Lincoln.”

Calvin Coolidge (1872–1933) American politician, 30th president of the United States (in office from 1923 to 1929)

1920s, The Reign of Law (1925)

“The first essential of civilization is law. Anarchy is simply the handmaiden and forerunner of tyranny and despotism. Law and order enforced with justice and by strength lie at the foundations of civilization. Law must be based upon justice, else it cannot stand, and it must be enforced with resolute firmness, because weakness in enforcing it means in the end that there is no justice and no law, nothing but the rule of disorderly and unscrupulous strength. Without the habit of orderly obedience to the law, without the stern enforcement of the laws at the expense of those who defiantly resist them, there can be no possible progress, moral or material, in civilization. There can be no weakening of the law-abiding spirit here at home, if we are permanently to succeed; and just as little can we afford to show weakness abroad.”

Theodore Roosevelt (1858–1919) American politician, 26th president of the United States

1900s, The Strenuous Life: Essays and Addresses (1900), National Duties

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John Marshall Harlan II9

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