August 17, 2005
"Neither Scary Nor Secret"--A Commentary by Joshua Hawley '06
(This essay was originally published in the August 16, 2005, edition of the Hartford Courant.)
Neither Scary Nor Secret
By Joshua Hawley '06
Supreme Court nominee John G. Roberts says he simply cannot recall being a member of the Federalist Society. To hear some tell it, that's a good thing. Liberal advocates and more than a few congressional Democrats would have you believe that Federalists are a secret society of scary people, a right-wing Fifth Column plotting to remake American law in its image. Don't believe it.
Federalists on my campus, Yale Law School, are conservative and libertarian law students promoting open, vigorous discussion about the core principles of the government the framers gave us. Those principles include federalism, the separation of powers and judicial fidelity to the Constitution. Far from subverting the country's legal order, Federalists seek to strengthen it, in part by rejuvenating the American legal academy. Federalist Society chapters act as conduits for fresh ideas and as gathering places for lively student debate. In so doing, they renew schools' intellectual vitality.
Connecticut residents may be surprised to learn that this supposedly nefarious organization began in their own backyard. The society was founded at Yale Law School in 1982 by a handful of students challenging the leftist group-think prevalent at Yale and its peer schools. Legal academics, the students found, were overly enamored of federal power and over-confident in the ability of federal judges to implement social reform. Worse, they tended to propound their views as if they were law. The meaning of the Constitution as the framers wrote it played little role in their theoretical schemes.
In the years since, the Federalist Society has sponsored thousands of debates in law schools across the country, bringing together respected academics and practitioners to discuss the ideas of the framers, the meaning of the Constitution and other public policy issues of the day. With its commitment to energetic exchanges of ideas, the society has brought fresh air to a legal academy in danger of stagnation.
The society's efforts have met with some success. Textualism - discovering the meaning of a legal text as its drafters and ratifiers meant it - is a formidable interpretive school today. Academics, lawyers and judges who once made little reference to laws' original meanings now feel compelled to grapple with the text even if they ultimately reject textualism and original understanding as doctrines.
But much work remains to be done. Legal academia is increasingly pervaded by a deeply cynical mood. Legal theorists are reaping what they have sown: For decades, so-called realists have taught that judges make law, not follow it. But if legal judgments are not about applying law, it is an easy step to conclude that they must be about applying political preferences. Accordingly, many legal theorists now dismiss appeals to constitutional text or statutory law as subterfuge. In the end, they teach their students that there is no real basis for judgment except politics.
This cynicism masquerading as theory has seeped into the political arena. Senators demand to know whether Judge Roberts is a Federalist because they believe the affiliation will reveal his political leanings, which they take to be synonymous with his view of the law.
But Federalists argue that principled adjudication is possible. For the sake of free government, it is mandatory. The laws the people write and the Constitution they adopt mean something. That meaning should guide jurists in their deliberations - whether the judge is liberal, conservative or otherwise.
In law school, students should be taught the text, structure and history of the Constitution. They should learn the content of the laws that legislatures write. That's where the Federalist Society comes in. Through its debates and lectures, symposiums and publications, the society is committed to educating a generation of lawyers to apply the people's laws faithfully and to meet new policy challenges with creativity. Federalists are committed, in short, to educating lawyers ready to do their part in the work of self-government.
No public figure should be reluctant to identify with that.
Joshua Hawley is a third-year student at Yale Law School and president of the Yale Law Federalist Society.