The new episode of “Conversations with Bill Kristol” features a very interesting interview with Justice Alito (video, audio, and transcript). I’ll highlight two excerpts, one in this post and another in the next.

On Obergefell v. Hodges (the same-sex marriage ruling) and substantive due process:

Well, the decision was based on, really, one word in the 14th Amendment. The Due Process Clause of the 14th Amendment prohibits the deprivation of life, liberty, or property without due process of law. So this was all based on liberty and on a substantive protection of liberty, not a procedural protection, which is what you might think the Due Process Clause was about, but substantively the Constitution protects certain liberties, the Court held.…
The idea of substantive due process has been very controversial throughout the Court’s history. It was a prominent feature in a number of pre-New Deal Supreme Court decisions where it was used to protect property rights. And the New Deal Constitutional Revolution tried to either kill off substantive due process completely or relegate it to very, very minor role.
But it has experienced a revival in more recent years, not in the area of property rights, but in the area of some non-property individual rights, including same-sex marriage. So the jurisprudential question is what limits the definition – how do we determine what liberty in the 14th Amendment means? Liberty means different things to different people. For libertarians, for classical liberals, it does include the protection of economic rights and property rights. For progressive social democrats, it includes the protection, a right to liberty means freedom from want, etc., etc. Government benefits.
And there are many other conceptions. The Court’s conception, I said in this opinion and I believe to be true, is a very postmodern idea; it’s the freedom to define your understanding of the meaning of life. Your – it’s the right to self-expression. So if all of this is on the table now, where are the legal limits on it? …
The Court had tried to limit this in some earlier cases from the Rehnquist era, prominently a case called Glucksberg that involved the claim that there was a constitutional right to die, by saying that liberty protects those rights that are deeply rooted in the traditions of the country. So you had to find a strong historical pedigree for this right.
But the Obergefell decision threw that out, did not claim that there was a strong tradition of protecting the right to same-sex marriage, this would have been impossible to find. So we are at, 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.