August 01, 2005

Some of My Best Friends Are Federalists: A Personal Reflection

by PG

"For the record: Yes, I am a card-carrying member of the Federalist Society. But the more important question is, why aren't you? This is an organization whose purpose is to encourage debate, so it naturally begs the questions."

There's probably a special hell reserved for someone who misquotes Aaron Sorkin to talk about an organization that's supplied so many Bush Administration legalists, but as my ACLU membership card shares a wallet pocket with the FedSoc one, I couldn't resist. There's an important deletion from the original: the American Civil Liberties Union asserts its sole purpose as being defense of the Bill of Rights (except for the strongest reading of the 2nd Amendment), whereas the Federalist Society, despite claims that it is only for debate, asserts certain views associated with conservatism on its own website. And while I agree with almost every ACLU position, and am inclining to delete the exception and join their opposition to campaign finance reform, I'm neither conservative nor libertarian and am deeply suspicious of any call to restore "traditional values."

However, being a FedSoc member is not as simple as some would make it seem, and so I wanted to comment on this New York Times article about it by talking about my own experience.

Unlike Judge Roberts, I paid my dues ($5 for a student) and am a formal member, with no squirming about being part of leadership without actually being a member. Also probably unlike Roberts, I participate in FedSoc for the intellectual challenge rather than comfort and support of my fellows, because I generally disagree with what they say. Like Roberts's would, my membership card identifies me as "Mr." Unlike Roberts, I am not accurately addressed this way, and I somewhat suspect that the error is due partly to the predominance of white males in the organization, such that the person who makes the cards is both unfamiliar with non-European names and statistically justified in assuming that I would be a Mr.

As founder Stephen Calabresi noted in the article, federalists often can disagree with one another. At February's student conference, I was not the only person disgusted by Hadley Arkes's equating homosexuality with pedophilia; doubtlessly among others, genuine federalist Amber Taylor felt the same way.

That same conference got me set up with my summer housing, so while FedSoc hasn't advanced my career, it helped to get me out of NYC for the summer. The mail that the person from whom I'm subletting gets is eye opening (the latest edition of Clarement Review of Books implies that William F. Buckley Jr. brought down the Berlin Wall), and he has a full library of conservative books, including two copies of The Road to Serfdom. So even Federalists who don't talk to you about law or politics can put ideas before you.

When the people who own the building asked me how I met their renter, I told them about the conference, and they asked, "What does the Federalist Society believe?" Being on the spot and without Calabresi's guidance, I tried to give an example. "If you take something like the death penalty, most federalists would say that the Constitution's Eight Amendment permits it, because either they think we should be guided by what the Framers thought, and they had execution, or that we look at the words' meaning and execution doesn't meet the definition of 'cruel and unusual.' That doesn't mean that they're all pro-death penalty, just that they don't think the Constitution keeps the states from executing people if that's what the states want to do."

My own situation proves that membership in the Federalist Society doesn't actually tell you much about a person. Unlike the Heritage internship program, FedSoc doesn't make you fill out a questionnaire about your beliefs before they let you in. Looking back at this post's title, I have to admit that only one of my best friends is a federalist, and I use the little "f" because I'm describing a viewpoint rather than membership; the person in question probably doesn't pay dues or otherwise significantly participate in the capital "F" FedSoc. So if membership is what counts, I'd be a worse candidate in People for the American Way's eyes than my friend would be. A sad break with PFAW after they trained me to help with Gore's campaign in 2000.

Instead of this pointless focus on whether or not Roberts is a Federalist, a more useful line of questioning would be on whether or not he is an originalist, a textualist, etc. Or, as New York judge Robert Smith claimed of himself when being honored by the Federalist Society, without such an easily-described or yet-ascertained philosophy of Constitutional interpretation. The senators even could ask questions like, "Of the opinions in Kelo/ Raich/ the Ten Commandmants cases, which did you consider the most correct reading of the law?" in order to get a clear picture of how his understanding on certain issues aligns with that of his future colleagues and the woman whom he'll replace.

I call the Court and O'Connor that with no qualification, because Roberts will be confirmed and the Democrats shouldn't make asses of themselves over it. Queries about the Federalist Society, as well as Catholicism (an association with even less relevance to Constitutional interpretation than FedSoc) go in the category of "making oneself an ass."

This is not to say that there should be no questions about Roberts's jurisprudential views; I put forth the above example as a way to avoid asking Roberts to pre-judge future cases or say that he wouldn't apply the relevant precedent as a lower court judge, but still understand something of what he thinks. The public has a right to know a little about what their next Supreme Court justice has in his mind.

Just not in his wallet pocket, next to the expired Amnesty International card.

August 1, 2005 02:18 AM | TrackBack
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