- The Washington Times - Thursday, November 17, 2016

U.S. Supreme Court Justice Samuel Alito Jr. said an unaccountable administrative state and congressional efforts to erode federalism are “unprecedented” threats to the structure of government established by the Constitution.

Justice Alito delivered the opening address at The Federalist Society’s 2016 National Lawyers Convention, themed “The Jurisprudence and Legacy of Antonin Scalia.” His bittersweet remarks focused on Scalia, who died in February after nearly 30 years on the high court.

In the absence of one of the Constitution’s most stalwart defenders, Justice Alito implored the late justice’s followers to think about the acronym WWSD — “What Would Scalia Do?” — when approaching future constitutional battles.

“Some years ago, I spoke at Columbia, and members of The Federalist Society chapter gave me a T-shirt that bore the letters ‘WWSD,’ signifying ‘What Would Scalia Do?’ At the time, it struck me as slightly sacrilegious,” Justice Alito said, drawing laughs. “And until Feb. 13, the question where I work at the Supreme Court was academic. We either already knew or we would eventually know what Nino would do. Now the question is real.”

Justice Alito noted several “constitutional fault lines” that threaten to destabilize the republic. Many concern the Bill of Rights, such as the Democratic Party’s effort to amend the First Amendment to allow the government to regulate political speech.

“In places in the country where they have those lines, sometimes the earth starts to tremor, and people get worried about what’s coming,” Justice Alito said. “So think about some of the constitutional fault lines that we have at the present time. Take freedom of speech. More than 40 senators have proposed an amendment to the First Amendment. … And what would that amendment do? It would have the effect of granting greater free speech rights to an elite group, those who control the media, and everybody else.”

Freedom of religion, Justice Alito continued, “is in even greater danger.” He pointed to the Supreme Court’s decision not to hear a case in which Washington state told a Christian pharmacy that it had to provide abortion-inducing drugs, even though doing so would violate the religious beliefs of the owners.

“In this case, there is a strong argument that the law was enacted to rid the state of those troublesome pharmacists who objected to these drugs on religious grounds,” he said. “But the 9th Circuit sustained the law, and the Supreme Court did not even think that case deserved review.”

In line with Scalia’s thinking, Justice Alito said the greater threat is posed by efforts to erode the separation of powers and the system of federalism outlined in the Constitution.

“When Nino spoke to students, he often asked them, ‘What is most important about the Constitution?’ And more times than not, the answer would refer to the Bill of Rights,” Justice Alito said. “Nino would say, ‘Wrong. What’s most important is the structure of our government, the separation of powers at the federal level and the division of sovereignty between the federal government and the states. Human rights guarantees are worthless without a governmental structure to protect them.’ In recent years, however, we’ve seen unprecedented challenges to our constitutional structure.”

The jurist humorously warned against an expansive reading of the congressional power to regulate interstate commerce, in which “not just participation in interstate commerce, but the refusal to engage in interstate commerce” is seen as within the grasp of the legislature’s regulatory arm.

“Now if any of you sitting here are actively doing something, if you are drinking coffee or if you are tweeting or blogging, you can be said to be engaging in interstate commerce, because the coffee came from Colombia or Brazil, and the water came down the Potomac from West Virginia, and the electrons are flying all over the place,” Justice Alito said. “However, if any of you had the good sense at this early hour … to be sleeping, you are also engaging in commerce, because you could be drinking coffee.”

Justice Alito peppered several shots at college students into his remarks, such as when he recalled Scalia’s diverse upbringing in Queens.

“Nino said he grew up in a melting pot,” the justice said. “I will not say that, because I know that, according to the powers that be in the University of California university system, the phrase ‘melting pot’ is a microaggression. But the people of Nino’s Queens didn’t know it was a microaggression.”

While discussing Scalia’s transformative influence on oral argument, Justice Alito mocked the campus trend of designating physical “safe spaces” free from thoughts with which liberal students disagree.

“It became a contact sport,” Justice Alito said of oral argument. “The courtroom was not a safe space when Nino was on the bench.”

He said Scalia “believed in speaking the truth no matter the cost,” a sentiment that can be traced to the late jurist’s undergraduate years.

“In the speech that he gave at his college graduation, he said something that was quite revealing,” Justice Alito said. “The prose is early Nino. It is 1950s undergraduate stuff, not the man of style we know so well. But the sentiment is one that I think Nino had until the end. This is what he says to his fellow students about his college days: ‘We were seekers of truth.’ Can you imagine a student saying that at a college graduation today?”

Justice Alito said he likes to imagine Scalia among the angels, contemplating the mysteries of the universe and “sipping some fine red wine” with the great Italian theologian Thomas Aquinas.

“But that is Nino. Here below, we are lucky to ask ourselves, WWSD?”


• Bradford Richardson can be reached at brichardson@washingtontimes.com.

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