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But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary.
I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.
They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don't see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process.
9. Alito, in response to Senator Kohl's query about Alito's statement that he believed "very strongly" in one element of the conservative philosophy, the "legitimacy of a government role in protecting traditional values," and Kohl's request that he define traditional values:
I'm trying to remember what I thought about that 20 years ago, and I'm trying to reconstruct it.
I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that's a traditional value.
I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value. I think the ability to raise children in a way that they're not only subjected to -- they're spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value. I think that the ability to practice your own conscience is a traditional value.
That's the best I can reconstruct it now, thinking back to 1985.
10. Alito, in response to Senator Michael DeWine's question about the role of the judiciary in reviewing congressional fact-finding:
I think that the judiciary should have great respect for findings of fact that are made by Congress. And in the Rybar decision that I was discussing earlier, although it is controversial and it involved an application of the Lopez decision, I state that that decision would have been very different -- that case would have been very different for me if Congress had made findings.
And that's because of two things. I am fully aware of the fact that the members of the judiciary are not the officers in the United States who take an oath to support and defend the Constitution of the United States. The members of Congress take an oath to support the Constitution and officers of the executive branch take an oath to support the Constitution. And I presume that they go about their work in good faith.
The second point, and this goes directly to the issue of findings, is that the judiciary is not equipped at all to make findings about what's going on in the real world, not just sort of legislative findings. And Congress, of course, is in the best position to do that. You have constituents. Members of Congress hear from their constituents. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings.
And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.
11. In response to Senator Sam Brownback's query about how Alito views and interprets the Constitution:
I think the Constitution means something. And I don't think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean.
It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution.
In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.
But I think we have to recognize that the Constitution is very different from statutes in some important respects.
Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.
The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.