This book is a detailed analysis of activities of Federalist society in development of legal ideas related to the Originalist reading of US Constitution and, most important, of how these ideas were introduced and took root among the generation of lawyers who in process of development of their careers moved throughout the system achieving key positions and judges, litigators, and Supremes, eventually making consequential legal decisions based on these ideas. Author in great details reviews this process in its historical development for recent key decisions of Supreme Court that confirmed First Amendment Rights as related to political campaign financing in Citizen United and the Second Amendment right as individual right, rather than collective. Finally it discusses key constitutional issues of separation of power and role of judiciary that are strongly promoted by Federalist Society as “Duty to say what the Law is, not what it should be”, thus dispatching theory of “Living Constitution” to dustbin of history, if this effort is successful.
Introduction: 1. Understanding Federalist Society Network Influence
This book is about Federalist Society that was created in 1982 by young conservative lawyers and is identified here as Political Epistemic Network. The criteria for this identification provided in the table:
The introduction discusses influence of the society and its impact on judiciary “counterrevolution” that over last few dozen years moved America’s legal profession somewhat back to original constitution, albeit just a little bit. Here is graph representing such influence:
PART I: The State Exists, to Preserve Freedom
- The Right of the People to Keep and Bear Arms: Lost and Found
This chapter provides some history and analysis of impact of members and associates of Federalist society on change in reading of Second amendment from collective rights as it was promoted by leftists to individual right as it was reaffirmed by current Supreme Court in Heller. Author provides detailed description and specific input by personalities linked to Federalist society who had impact on the decision including 4 Supremes.
- Judicial Activism, Inc.: The First Amendment, Campaign Finance, and Citizens United
This chapter reviews another hot spot of left-right struggle: application of the First Amendment to Campaign Financing reform. As in the previous case, author works through specific individuals and their input in legal discussion that led to Citizen United and identification of Corporations as entities for which the First Amendment applies as it is related to financing of political campaigns. Here author also provides the same graph populated with numbers of individuals associated with Federalist Society who participated in Citizens United.
PART II: The Separation of Governmental Powers Is Central to Our Constitution 4. Federalism and the Commerce Power: Returning to “First Principles”
This is about somewhat successful effort of members of federalist society to roll back unlimited power of Federal government created during New Deal by using Interstate Commerce Clause of the Constitution as generic tool to push “whatever you want” type of laws. The first success was in 1992 with New York v. US, then in Lopez (1995), and Morrison (2000). Author discusses personalities in Federalist Society who specialize on Commerce clause and their “Textualist-Originalist” interpretation of the Constitution and their intention to move legal environment to pre 1937 judicial revolution that practically destroyed constitutional limits on Federal government. Author present development of this movement via somewhat detailed analysis of these 3 cases.
- State Sovereignty and the Tenth Amendment: The Anti-Commandeering Doctrine
This chapter is about X amendment that for a long time was a dead letter of “Written Constitution”, meaningless in the environment of triumph of leftist “Living Constitution”. The cases reviewed here: Printz (1997) and Sebelius (2012) represent successful attempts to revive state sovereignty.
PART III: It Is Emphatically the Province and Duty of the Judiciary Branch to Say.
What the Law IS, Not What It Should Be
- Saying What the Law Is: The Federalist Society and the Conservative Counterrevolution
The last chapter is about role and meaning of judiciary, describing struggle of Federalist society members against leftist doctrine of judiciary as a tool of implementing their “progressive” ideals in circumstances when people and elected legislature do not support or even reject these ideas, something that Warren Court was famous for. An interesting point here is made about specificity of American Jurisprudence when judicial decision-making has to include written reasoning for the decision, unlike legislative decision-making. General idea promoted by Federalist society is the supremacy of written Constitution and it’s meaning over precedents that dramatically decreases power of stare decisis, consequently opening New Deal judicial revolution for dismantling. The actions of Federalist Society directed at creating a climate conductive for the constitutional change by:
- Getting the right cast of characters on the Supreme Court
- Acting as vigilant and vocal judicial audience
- Changing the debate and reducing the stigma of once-radical ideas and theories
Epilogue: An Agenda for Future Research: Looking Back, Looking Forward
The epilogue reviews attempt by left wing to create counterpart to Federalist Society that would defend their achievements in destruction of original Constitution and substitute rule of law with their own rule. Such counterpart – American Constitutional Society (ACS) was founded in 2001 and author suggest for future research look at progress of this organization in acquiring similar or even higher level of authority and influence in judicial decision making. So far two justices appointed by Obama did not have strong connections with ACS. Sotomayor was practically unknown to ACS, while Kagan did successful presentation to both ACS and Federalist Society. Moreover Obama failed to get congress approval for ACS activist Liu appointment to Ninth Circuit Court of Appeals seems to be specifically as result of his activism and expressed intention to use this position to promote leftist ideas.
MY TAKE ON IT:
For me the struggle between leftist ideas of living constitution and rightist ideas of original unchangeable (dead) constitution is highly enchanting. Generally I am in agreement with chairman Mao that “power is coming from the barrel of gun”, but the funny part is that gun is always in the hands of men and legal system, judicial ideas, and philosophical ideals pretty much define what is going on in the heads of these men and consequently where the barrel of gun will be pointed to. So far based on history and analysis of this book it looks like Originalist ideas of Federalist society represent more logical and more consistent with ideals of American culture approach and therefore command strong influence on outcome of competition in more than a few specific constitutional disputes. On the other hand majority of legal profession including professors and students seasoned in New Deal ideology are on the side of ACS and Living Constitution with unlimited power for government. So the balance of power is between minority associated with Federalist Society and their superior ideas meaning more in sync with American tradition and culture, and numerical majority dedicated to the New Deal with inferior ideas contradicting American tradition and culture. I guess watching with struggle would be highly entertaining for a foreseeable future. Especially interesting and unique to America is the situation when people with guns (military and police) are deeply supportive of traditional American culture, but tolerate leftist direction in government destroying this culture. The reason for this tolerance is traditional culture’s huge respect to democratic rule and law. Leftists, on other hand consistently push outside existing law and democratic traditions overriding them each time when they have power to do so either due to capturing democratically elected positions of power or legal authority to interpret law. I think that this contradiction could not continue forever and will have to be resolved.