Federalist Society 101

This October 2001 article, Movin’ On Up with the Federalist Society: How the right rears its young lawyers, describing the workings of the then less than twenty year old Federalist Society, should be read by everyone who wants to understand how Trumpism came to triumph in America. A remarkable piece of reporting by Amy Bach in The Nation. Here is a taste:

Federalism, in its most basic form, is the idea that the federal government shouldn’t encroach on the powers that the Constitution allegedly has reserved to the states. But the Federalist Society is an umbrella organization embracing all right-wing causes. Some members favor libertarian principles of individual rights over “big government”; others advocate strict-constructionist interpretations of the Constitution, which they claim represent the framers’ intent. Whatever legal justification is offered to ground these views, the Federalist ideology is in effect a tool to eviscerate Congressional efforts to advance public policy goals where the states have failed. As critics point out, it benefits big business, it’s anti-egalitarian, it shuts plaintiffs like the poor and disabled out of the courts, and it rolls back the New Deal notion that the courts have a role to play in helping the downtrodden. While the legal theories may appear tidy, they lack compassion, working to support favorite sons like gun manufacturers and HMOs.

Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.

However, the Federalist Society claims it takes no positions on issues. With its tax-exempt status requiring it to stay away from political activity, it hides behind the notion that it is merely a sophisticated speakers’ bureau. “We are not a position-taking organization,” Eugene Meyer, the society’s executive director, told the Washington Post. (Meyer declined to comment for this story.) “We really are interested in discussion and in getting ideas heard.” Even Judge Kozinski, a fairly ubiquitous presence at national events, won’t say that he’s a card-carrying member. “I’m on the mailing lists,” he says. “And whether I attend depends on whether it is something I am interested in.” The conservative intelligentsia repeats these lines again and again, as if afraid to say the obvious for fear it will reveal their true agenda. Meanwhile, under the dispassionate guise of a debating organization, the Federalist Society is working to prepare a powerful next generation of conservative corporate lawyers, judges, top government officials and decision-makers committed to fundamental change.

Oh, my. Read the whole article, learn a little history. Learn it as if our delicate experiment in democracy hangs in the balance.

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