Last night at the gala dinner at FedSoc's 2012 National Lawyers Convention, Justice Samuel Alito delivered the keynote address, which was both funny and insightful. Josh Blackman has written an extensive summary of the justice's talk:
The Justice began by noting that it was a special honor to speak on the 30th Anniversary of the Federalist Society. He described the four founders of the Society–Lee Liberman, Steven Calabresi, David McIntosh, and Peter Keisler–as real heroes, and recommended that a version of Mt. Rushmore should be built with their faces . . . . Justice Alito suggested that the Washington Nationals should replace the racing presidents with the racing federalists, or at least on Constitution Day. . . .
Justice Alito noted that recently, Justice Ginsburg stirred some controversy by noting that countries developing new constitutions should look to more modern constitutions, rather than the United States Constitution as a model. Is this good advice? Justice Alito said, “it depends.”
Alito noted that someone suggested that he is developing a computer program to help countries write constitutions. Like LegalZoom! The framers will be led through questions. On a scale of 1-10, how much protection should there be for free speech, religion, due process . . . Of course, the document would be printed on and elegant parchment.
Alito countered that creating new constitutions is much more complicated. The constitution must reflect the nature of the society it serves. Our Constitution protects a framework for a society that attracts people from every corner of the globe. Under the Constitution, people enjoy freedom and opportunity. It is not a perfect, but it is an exceptionally good Constitution.
Compared with other modern constitutions, our Constitution has bold protections for individual rights. Other Constitutions has lots of escape clauses. No other Constitution protects free speech the way our Constitution does.
Our Constitution guarantees rights against the government–not rights to get things from the government. Under our Constitution, the citizenry is proudly independent, and values individual effort and achievement and the work of private institutions. Modern constitutions confer rights to get things from the government, and cultivates a citizenry that asks what government can do for them.
The United States Supreme Court elaborates on the meaning of the Constitution. Alito compared judges to the Pointilist artists, where a dab of paint here and there may be confusing, but when you take a step back it’s a work of art . . . .
Next, Alito turned to the main event. Arguments from last term. First he talked about NFIB v. Sebelius.
Federalism can be used as one of the ways to protect liberty, promote prosperity, and make it easier for diverse populations to live together harmoniously. Alito noted that the Solicitor General’s argument in this case would have reduced federalism to a most meaningless distraction (or obstruction, not quite sure what my notes say). The Solicitor General “attempted to land a one-two punch that would have sent federalism to the mat.” The United States put forth an “unprecedented argument” . . . that Congress had the power not only to regulate commerce, but to force people to engage in commerce. The Solicitor General’s other argument would have “gutted” any limits on the spending power .
Alito noted that fortunately both arguments lost–the first question by a vote of 5-4, and the second issue by a vote of 7-2.
Blackman then goes on to summarize Justice Alito's fascinating comments on United States v. Jones, Hosannah-Tabor, Sacket v. EPA, Fox v. FCC, and Citizens United.