Monday, July 3, 2017

Book Review: 'Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution' by Amanda Hollis-Brusky

Review by David Wineberg

Takeover without representation 

Ideas and Consequences is nominally about the Federalist Society, founded in the Reagan era to promote conservative views among lawyers. It is young enough to allow Amanda Hollis-Brusky to gather interviews and documentation all the way back to its founders. It is philosophically close to the political Tea Party – conservative, libertarian, almost anarchic in its views on individual rights and local governance.

The Federalist Society has three pillars: that the state exists to preserve freedom, that the separation of governmental powers is central to the US Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The book is structured around those principles, and Supreme Court decisions involving them.

It is a genuinely frightening look at a political movement that has chosen to take power via the judicial branch. It does not run candidates in elections, it has no party organization, it seeks no public approval. It has instead chosen to inculcate law students through meetings at universities. Some 48,000 attend these meetings, keeping the 40,000 strong membership vital. As they rise to power as lawyers, professors, civil servants, clerks to judges, and to judgeships themselves, they become, in their own word, “gatekeepers”. Its leaders brag it has “a de facto monopoly on the credentialing of rising stars”. Recently, this Included “absolutely every lawyer” in the Bush Administration. They seek exclusion of others and promotion of their own, vetting them and then keeping them in check once they have achieved power. They have an explicit goal of creating “an alternative elite”. This undermining of the entire American system is the “consequences” of the title, and what the book is really about. 

The “ideas” are the originalism theory of the constitution, states’ rights, individual liberties extended to corporations, and a diminution of the federal government. 

Their positions are often difficult to swallow, and the author takes no position. On the Second Amendment, they have decided “the people” means every individual, not the collective population, as had been the interpretation for 200 years, even though that makes no sense in the context of “a well regulated militia”. For separation of powers, they mean giving as much as possible to the states, creating a sort of European Union rather than a cohesive country. For judges saying what the law is and not what it should be, this only applies after they have reinterpreted them to reflect the Federalists’ notions of what they should be. For example, in the Second Amendment, they go so far as to claim there is a “mistake” in the Privileges Or Immunity Clause, because it does not specify arms. Similarly in freedom of speech, Justice Scalia claims there is “not a scintilla of evidence” the founders wanted to prevent corporations from having freedom of speech, though the First Amendment does not include them. 

Federalist lawyers present their cases to the Supreme Court, sometimes at the “invitation” of the fellow-member justices, write friend of the court papers in other cases, and feed judges ammunition through their Bibliography and direct contact. Decisions and dissents by the four justice-members show direct copying from those documents.

As much as I disagree with some of the Federalists’ positions, this is not a book to disagree with. It is a neutral, fair, unbiased look at the words and deeds of its members. It looks at their conferences, their papers, their speeches and their pleadings. It maps their connections in the court cases. It does not judge or take any positions itself. There is no evaluation of their ideas. Otherwise, it would be 2000 pages instead of 200.

Editor's note: This review has been published with the permission of David Wineberg. Like what you read? Subscribe to the SFRB's free daily email notice so you can be up-to-date on our latest articles. Scroll up this page to the sign-up field on your right. 

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