The Federalist Society: From Obscurity to Power

Undeniably Ideological

While the Federalist Society does not file legal briefs in court cases or draft an official platform, its views on major legal and constitutional issues are clearly far to the right on the political spectrum. In a recent column in The Washington Post, Federalist Society member Eugene Volokh declared the organization devoid of ideology: "We have no articles of faith."41 Yet, at a later point in the same column, Volokh's own words betray this contention: "We think that a fair debate between us and our liberal adversaries will win more converts for our positions than for the other side's [emphasis added]."42

Resources on the Federalist Society's own Web site also discredit Volokh's notion that the organization has no real ideology. For example, the Web site promotes what it calls the "Conservative and Libertarian Pre-Law Reading List: An Introduction to American Law for Undergraduates and Others." According to this Society publication, the most important principles underlying the nation's legal system "are private property ownership, freedom of contract, and limited government [emphasis in original]," rhetoric reminiscent of the Lochner era when highly conservative judges tried to hold back the New Deal.43 No wonder, then, that a March 2001 conference that the Society sponsored in Chicago carried the blunt headline "Rolling Back the New Deal."44

The Society's pre-law reading list is based on a lengthy article first published by the ultra-conservative Heritage Foundation.45 Overall, the reading list is dominated by right-wing perspectives on the Constitution and jurisprudence. For example, under the category of public policy and "public choice," the Federalist Society endorses an "economic analysis in addressing public policy issues" and specifically praises Capitalism and Freedom, a book by arch-conservative economist Milton Friedman, as the "classic treatment" in assessing public policy through this economic lens.46

The Society's constitutional law reading list is similarly revealing and is introduced with this glib pronouncement: "There are two kinds of constitutional lawyers: those who take the text of the Constitution seriously, and those who don't. Much of what is wrong with the American polity today is traceable, directly or indirectly, to the latter, who greatly outnumber the former."47 Four names account for more than half of the individually authored recommended books and articles on this reading list: Bork, Scalia, Richard A. Epstein and Lino Graglia. What are their views on constitutional freedoms and civil rights?

Robert Bork's ultra-conservative credentials are well known. In 1963, he wrote a New Republic article opposing passage of the 1964 Civil Rights Act in which he took the position that outlawing racial discrimination in public accommodations would infringe business owners' rights.48 Ten years later, under critical Senate questioning as a nominee for Solicitor General, he recanted that position.49 In his 1996 book Slouching Towards Gomorrah, Bork put forth another breathtakingly radical constitutional theory by arguing that it should require only a simple majority for Congress to overturn Supreme Court rulings interpreting constitutional rights-a theory with devastating potential to thwart the Court's power to defend individual liberties.50 Just last December, after that theory was criticized by a New York Times columnist, Bork claimed that he had abandoned this idea, too-not because he had thought better of the proposal itself, but because a similar measure instituted in Canada had not been effective.51

Bork, whose extreme views on the Constitution doomed his 1987 nomination for the Supreme Court, argued in Slouching Towards Gomorrah that censorship is needed "to root out the worst in our popular culture."52 In The Tempting of America: The Political Seduction of the Law-the 1990 book recommended on the Society's pre-law reading list-Bork seemed several times to defend, then later abandon, his "strict constructionist" approach to the Constitution. He insisted, for example, that the Fourth Amendment only protects "papers," not "words." Yet, Bork also argued that it was entirely appropriate to derive a right against electronic eavesdropping. As Pulitzer prize-winning historian Leonard Levy summed up, Bork's message is that "the Constitution means what it says when it says what he means."53

Like Bork's, Scalia's philosophy is well honed and extremely conservative. Just this year, in Zadvydas v. Davis, Scalia was one of only two Supreme Court justices who argued that a Lithuanian man, a nondeportable illegal alien, could be held indefinitely in detention by the government.54 In another case in the Court's just completed term, Scalia was one of only two dissenters in a ruling that struck down a death sentence reached by a South Carolina jury that had not been given complete information about sentencing alternatives. While Scalia noted that a fully informed jury "may well be a good idea," he wrote that there was no constitutional requirement for it.55

Scalia's 1997 book, Matter of Interpretation, is recommended by the Society on its pre-law reading list. In a review in The Nation, Garrett Epps wrote that "Scalia's ideal civil law judge is something like a certain kind of Islamic jurist, to whom 'interpretation' of the Koran is blasphemy" and that Scalia "finds no democratic value in guarantees against oppression of electoral minorities" and "believes elected bodies should be able to do whatever they want without a lot of whining from the losers."56

Epstein, a University of Chicago law professor, wrote the 1992 book Forbidden Grounds: The Case Against Employment Discrimination Laws, in which he assailed federal laws protecting civil rights in the workplace.57 In "The Mistakes of 1937"-the article included on the Society's pre-law reading list-Epstein assailed two 1937 Supreme Court rulings. A key ruling that recognized the federal government's authority under the commerce clause, Epstein wrote, "throws the history and text of the Constitution into disarray."58 Another ruling that enabled the federal government to regulate labor markets was unjustified, he wrote, even if the purpose was to protect the public health and safety. "If someone wants to take risks with health and safety in order to obtain a higher wage, then so much the better," Epstein wrote. "The classical theory of contract gives no reason to prohibit that transaction."59

In one of his most controversial books, Takings: Private Property and the Power of Eminent Domain, Epstein espoused views sharply at odds with long-settled constitutional law. While courts have historically interpreted the Fifth Amendment to require governments to compensate property owners for land taken through eminent domain, Epstein argued that zoning regulations, pollution control laws and even welfare payments amounted to "takings" of property by the government. Epstein admitted that his constitutional interpretation of property rights would effectively invalidate most laws passed in the 20th century.60 In a 1995 book, Epstein devised a framework for defining privacy rights that significantly restricts such rights, disallowing even the rights of patients to maintain privacy of their medical records.61

No author has more contributions to the constitutional law section of the Society's pre-law reading list than Graglia, a University of Texas law professor who has vehemently opposed affirmative action and court-ordered school desegregation efforts in Texas.62 The very titles of some of the Graglia articles that are recommended by the Society are revealing: "From Federal Union to National Monolith: Mileposts in the Demise of American Federalism" and "'Constitutional Theory': The Attempted Justification for the Supreme Court's Liberal Political Program."63

In the latter article, Graglia dismissed the significance of the Seventh Amendment to the Constitution-adopted more than 200 years ago as part of the original Bill of Rights to guarantee the right to a jury in a civil trial-calling it "an unnecessary inconvenience." In this same article, Graglia contended that the equal protection clause of the Constitution does not prevent states from discriminating on the basis of such factors as sex or nationality.64 In the former article, Graglia espoused even more shocking views, criticizing adoption of the Seventeenth Amendment-which permitted Americans, instead of state legislatures, to directly elect U.S. senators-because it weakened "state autonomy."65

Also in his article on federalism, Graglia voiced chagrin that the Lincoln administration did not permit southern states to leave the union. By refusing to accept secession and, instead, choosing to engage in a Civil War, Graglia wrote, the North deprived the South of "the right of freedom of disassociation. Although the southern states had voluntarily joined the Union, the North had grown so attached to southerners as to prefer killing them to permitting them to depart. … The loss of the right to secede cost the states their ultimate defense against national encroachment upon any element of independence [emphasis in original]." Incredibly, these Graglia articles are endorsed by the Society for those who want to learn "about the historical process that deformed many areas of constitutional law..."67

Graglia's extreme and outspoken views have made him a lightning rod. In 1997, he declared that Mexican-American and African American students were not academically competitive with white students due largely to "cultural effects." Of these minority groups, Graglia said, "They have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace." Graglia has also been criticized for using the ugly, racially derogatory word "pickaninny" to refer to African American students in his classes.68 Graglia's remarks drew widespread criticism. A resolution denouncing the statements was drafted in the Georgia House of Representatives, and a University of Texas regent called Graglia's comments a "cruel and insensitive lie."69

The Society's "Journalist's Guide to Legal Experts"-a Web site inventory of attorneys and scholars to whom the organization steers the news media-offers additional evidence of the group's overriding right-wing philosophy. While the Society's Web site points out that the views of these experts are their own, it also makes quite clear that the Society promotes them as espousing conservative and libertarian philosophies. Although conservatives and libertarians across the country hold differing views on many of the subjects listed, the views of those recommended by the Society on a number of specific controversial issues are strikingly uniform.

For example, all three people listed by the Federalist Society as gay rights law experts hold views that are hostile to gay rights. Michael Carvin, a Washington, D.C., attorney, actually represented Equal Rights, Not Special Rights, the political group that worked to overturn Cincinnati's human rights ordinance protecting gays from discrimination.70 Carvin praised a court ruling that upheld Issue 3, an anti-gay amendment to Cincinnati's city charter. "[The amendment] frees up local communities to pass initiatives like [Cincinnati's]," he said.71

Another of the experts, Notre Dame law professor Charles E. Rice, has strongly anti-gay views and has even attacked his university's administration for failing to emphasize the message that "[h]omosexual acts are intrinsically wrong."72 The third expert offered to journalists is David M. Wagner, a law professor at Regent University, which was founded by right-wing televangelist Pat Robertson. In June 1999, Wagner signed onto a letter by 157 law professors that criticized an upcoming legal conference for discussing "the legal recognition of same-sex partnerships." The letter signed by Wagner argued that laws "to include same-sex unions" would create "unprecedented moral, social and legal confusion..."73

Similarly, on the issue of assault weapons, the Federalist Society recommends two experts for the media to contact: Nelson Lund of George Mason University law school and Eugene Volokh of UCLA Law School.74 Both clearly have similar anti-gun control views, as evidenced by the fact that the National Rifle Association-the best known extreme pro-gun group in America-also recommends Lund and Volokh as experts for media interviews. In fact, an NRA press statement last year urged the media to interview Lund and Volokh, noting that both of them could be reached through NRA's own public affairs office.75 Moreover, Volokh co-wrote a 1999 article entitled "Loaded Guns Can Be Good for Kids," in which he and co-author Dave Kopel strongly criticized a federal proposal to require guns to be sold with safety locks.76

Share this page: Facebook Twitter Digg SU Digg Delicious