January 23, 2019

NO MARKET FOR ANTI-CONSTITUTIONALISM:

Why There's No Liberal Federalist Society: The legal left has a money problem, a history problem and--maybe worst of all--a big-idea problem. (EVAN MANDERY January 23, 2019, Politico)

Since its conception, the Federalist Society has had one consistent and very graspable ideological backbone: that the Constitution should be interpreted as having the meaning it had when it was enacted. So-called originalism gives the Federalists a catchy intellectual hook. The agents of change in American law, they argue, should be legislators, not judges; that's how the Constitution intended it. Hence the famous proclamation of Justice Antonin Scalia--the first faculty adviser to one of the Federalist Society's founding chapters at the University of Chicago--that the Constitution is "dead, dead, dead."

The Federalists' mantras are succinct and understandable: The law should be neutral. It is the duty of the judiciary to say what the law is, not what it should be. Whatever its theoretical weaknesses, says Columbia Law School's Jamal Greene, "originalism's simplicity is one of its chief selling points." And in the abstract, it's widely popular: In one study by Greene and his colleagues, 92 percent of people expressed support for the idea that a good Supreme Court judge should "uphold the values of those who wrote our Constitution two hundred years ago."

Standing behind the original meaning of the Constitution gives the Federalists a deeply appealing claim to a neutral, timeless American tradition. It is also complete nonsense, according to scholars who've looked at the rulings of "originalist" judges: Those judges tend to issue politically conservative rulings regardless of the larger principles at stake. Judge Richard Posner, no liberal, has ridiculed Scalia's claim that originalism and the related doctrine of textualism offer greater certainty than competing principles, such as interpreting the Constitution as an evolving document. Originalism, for all its pretenses, is no more than a fig leaf for injecting politics into the judiciary.

Judicial neutrality may be a fiction, but it's a useful one--and an idea for which liberals just haven't found a response. The Federalist Society's claim that the law should be agnostic on policy consequences is seductive to law students and lawyers; the invocation of the Constitution gives it rhetorical roots in the foundations of the Republic. What do liberals have to offer on their side?

One of their counterweights is law school itself: There's no question that law school faculties are overwhelmingly liberal, but when it comes to delivering results on the federal bench, the academy is not the same thing as an organization with a focused mission and a budget. The ACS has a mission, true, but it can be a little hard to pin down. Its website says the organization "works for positive change" on "important legal and constitutional issues including access to courts, voting, equality, and many other issues directly affecting people's lives." As judicial philosophies go, it couldn't be more diffuse. And the focus on outcomes rather than first principles immediately colors it with politics.

But the liberal legal academy hasn't come up with an easily digestible rival idea, or a readily comprehensible way to demonstrate to the American people that the idea of "fidelity to the Constitution" means less than the politics of the judge who professes it.

It's tough to sell the notion that justice should be unprincipled.




Posted by at January 23, 2019 4:05 AM

  

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