Will The Federalists Help Save the Union?

The Federalist Society is a group of conservatives and libertarians who believe in a strict interpretation of the U.S. Constitution.

Often referred to as “originalists,” the Society’s central argument for judicial restraint can be found in Federalist Paper 78, authored by Alexander Hamilton:

“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature… The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

The influence of the Society can be seen in one simple fact: it is their prepared list of judges that President Trump, as well as past conservative presidents, have used in selecting Supreme Court justices. John Roberts, Neil Gorsuch and Brett Kavanaugh were all on that list.

Recently, however, the Society has been facing some internal dissent due to Trump’s penchant to criticize anyone and everyone whom he construes as standing against him, including his own Justice Department.

This conflicts with the stated purpose of the Federalists:

“To promote the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

Ample evidence has demonstrated that Trump sees himself as the ultimate arbiter of what the law “should be.”

As a result, a critical mass is growing inside the Federalists.

“…more than a dozen prominent conservative lawyers,” The New York Times reports (Nov. 14), “have joined together to sound a note of caution. They are urging their fellow conservatives to speak up about what they say are the Trump administration’s betrayals of bedrock legal norms.”

“There is a deep-seated concern and uneasiness in conservative legal circles with the president’s attacks on our institutions, including the press and the Department of Justice, and a belief that conservative lawyers are not speaking up enough,” John B. Bellinger, top legal adviser for the State Department and National Security Council under President George W. Bush, told The Washington Post (Nov. 14).

“The group,” The Times continues, “called Checks and Balances, was organized by George T. Conway III, a conservative lawyer and the husband of President Trump’s counselor, Kellyanne Conway. In recent opinion articles, Mr. Conway has criticized Mr. Trump’s statements on birthright citizenship and argued that his appointment of Matthew G. Whitaker to serve as acting attorney general violated the Constitution.”

However, Checks and Balances is even more emphatic in their belief of the law versus the head of state.

“We believe in the rule of law,” their mission statement begins, “the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse. We believe these principles apply regardless of the party or persons in power. We believe in ‘a government of laws, not of men.’

“We believe in the Constitution. We believe in free speech, a free press, separation of powers, and limited government. We have faith in the resiliency of the American experiment. We seek to provide a voice and a network for like-minded attorneys to discuss these ideas, and we hope that they will join with us to stand up for these principles.”

“The new group,” The Times continues, “also includes Tom Ridge, a former governor of Pennsylvania and secretary of homeland security in the Bush administration; Peter D. Keisler, a former acting attorney general in the Bush administration; two prominent conservative law professors, Jonathan H. Adler and Orin S. Kerr; and Lori S. Meyer, a lawyer who is married to Eugene B. Meyer, the president of the Federalist Society. …

“ ‘The president,’ Mr. Keisler said, ‘has attacked the Justice Department for indictments of Republican congressmen on the stated ground that prosecutions would hurt Republican chances in the midterm elections, and he’s urged that the Justice Department investigate his political opponents. That’s a fundamentally wrong and very dangerous view of the criminal justice system, and people from both parties and across the political spectrum should condemn it.’ …

“Mr. Bellinger said he was worried about Mr. Trump’s attempts to undermine the country’s institutions. ‘Attacking the press and putting it in danger, attacking the Justice Department and discrediting it,’ he said, ‘are not part of being a conservative lawyer.’ ”

As reported in The New Republic (Nov. 15), “ ‘Some of us have been raising these concerns for a while,’ Jonathan Adler, a Case Western University law professor who signed the mission statement… ‘I’ve been open about criticizing the administration where I thought that was necessary from the beginning and being positive where there are things to be positive about. But I think some people have needed a few straws on the camel’s back before they’re willing to be more open about it.’ …

“The question is,” The New Republic observes, “whether other Federalist Society members, who have been hesitant to speak out, will answer the group’s call. There’s reason to believe so—precisely because they have been gotten what they wanted under Trump. As his first term—and perhaps his presidency—winds down, Trump may become a victim of his own success, as diminishing returns in judicial policy make it harder for the conservative legal community to stomach him.”

“Professor Kerr summed up the new group’s basic point,” The Times concludes, “ ‘The rule of law has to come first,’ he said. ‘Politics comes second.’ ”

Will the Federalists help save the Union?

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