Why the Federalist Society is illogical and ridiculous
In honor of my Law School's first Federalist Society guest speaker (on the topic of whether President Obama can kill an American citizen with a predator drone. Really? Why is that an issue, again?) I'd like to talk about the idea behind the federalist society; namely, that states should have more power and authority, and the federal government should have less. And really, this issue stems from the Federalist Society idea that the constitution should be read in a narrow way, as the Founding Fathers wrote it, which created a weak federal government and strong states.
That is a completely bogus statement.
Historically, the United States Constitution was formed after the fall of the Articles of Confederation. The Articles, as every 6th grader learns, was a document that created one branch of federal government, a legislature, which had the power to declare war, create coins, and...that was about it. Every other power and authority was left to the individual states.
That system failed miserably.
As the Federalists love to claim that they're representing the original will of the Founders, I'd like to quote a few:
Referring to the absolute lack of power to tax, Thomas Jefferson stated, "It will be said there is no money in the treasury. There never will be money in the treasury till the Confederacy shows its teeth. The states must see the rod" (Emphasis added).
Jon Jay, referring again to the lack of taxation powers, declared that other nations would say, "That America had no sooner become independent than she became insolvent"
A federal government that cannot tax appropriately is a government that will not last, as evidenced by the Articles. But taxes are not the only problem that Federalists have with the federal government. A second is the role of the judiciary.
Under the Articles, there was no executive or judiciary branch, only a Congress. Federalists have, since their inception, complained of "Judicial activism". They believe the role of the Supreme Court is merely to interpret the Constitution (in the most conservative way possible) as a dead document, something that cannot change, and that any society-altering decision should be made by the legislative or executive branch, not the judiciary. There is a logical, as well as historical, problem with that argument.
Logically, the Judicial branch is a co-equal branch of government. It is not lower than the other two. To say that the Court should only "Interpret" the Constitution makes no sense realistically. When any controversial decision is made by the Court, it is backed by precedence (Stare Decisis) and a view of how the issue meshes with the Constitutional provisions at issue. No Court decision, ever, has been based solely on the wants of its members, yet that is the claim of Federalists. They point to any decision that is "Ahead of its time" such as Brown and Roe (Notice it's only decisions that promote social justice that are the focus of their ire) and say the Court was being "Activist" and should have waited for the legislature to decide those issues.
The Constitution knows no such time limits. Nowhere is the phrase, "The Judicial shall wait until the Legislature has made a decision before the Judiciary shall make the same decision" or else there would be no purpose in a judiciary at all. The role of the Court is not to merely affirm the decisions of the Legislature. If Congress passes a law that is unconstitutional, is the Court supposed to wait for them to fix it? Their role is to determine what is constitutional and what is not, and yet Federalists would argue they are NOT to do so; instead, they should sit on their hands until Congress gets around to fixing their mistakes. But this has never been the role of the Judicial branch; it was never intended to be so, for otherwise it would be logically inconsistent for it to even exist; there would be no point if their job was simply to affirm the work of Congress.
Federalists will also argue that the Constitution should be interpreted as it was originally intended by the Founding Fathers. But this, too, rings hollow. Justice Brennan once said that the only way a person of the 21st century can interpret the Constitution is as a person of the 21st century. We can't pretend to be in 1780, because we aren't experiencing the same problems that the Founding Fathers were. Current hot-button topics include free speech on the world wide web, copyright and trademark infringement, gay marriage, and unlimited funding of political campaigns by massive corporations. Which of those issues was in the minds of the Founding Fathers when they wrote the Constitution? No, you cannot play Founding Father to find a constitutional solution to those issues, they are uniquely modern.
The second issue with interpreting based on the Founding Fathers is a realistic one; how do you know what the Founding Fathers thought? Yes, they wrote a few things down, but that's hardly a thorough road map to solving every modern problem. And if you know anything about how the Continental Congresses worked, every issue was highly contentious, and hotly debated. So even if an issue is addressed by a black-and-white reading of the Constitution, WHICH Founding Fathers would you listen to, and which would you ignore? Madison did not write the Constitution by himself. Many issues had several sides, with Madison, Hamilton, Jefferson, Washington, Franklin, and dozens of others split into various factions. Which do you choose? You can't. The Founding Fathers were not some amalgomous hive-mind, they were a group of individuals fighting for the values they each thought were most important, just as happens today. To say that we should judge, "Based on the Founding Fathers" is so simplistic as to completely avoid settling any issue ever.
The United States tried a system of state power and limited federal government. It failed miserably. To sit comfortably in the 21st century and attempt to handle the problems of our time using the non-existent unanimous opinion of the Founding Fathers is no plan at all. To say that the Judiciary should never contradict the will of the legislature is nonsensical and completely unsupported by the Constitution itself. The Federalist Society is then, by definition, as nonsensical as its foundational points.
That is a completely bogus statement.
Historically, the United States Constitution was formed after the fall of the Articles of Confederation. The Articles, as every 6th grader learns, was a document that created one branch of federal government, a legislature, which had the power to declare war, create coins, and...that was about it. Every other power and authority was left to the individual states.
That system failed miserably.
As the Federalists love to claim that they're representing the original will of the Founders, I'd like to quote a few:
Referring to the absolute lack of power to tax, Thomas Jefferson stated, "It will be said there is no money in the treasury. There never will be money in the treasury till the Confederacy shows its teeth. The states must see the rod" (Emphasis added).
Jon Jay, referring again to the lack of taxation powers, declared that other nations would say, "That America had no sooner become independent than she became insolvent"
A federal government that cannot tax appropriately is a government that will not last, as evidenced by the Articles. But taxes are not the only problem that Federalists have with the federal government. A second is the role of the judiciary.
Under the Articles, there was no executive or judiciary branch, only a Congress. Federalists have, since their inception, complained of "Judicial activism". They believe the role of the Supreme Court is merely to interpret the Constitution (in the most conservative way possible) as a dead document, something that cannot change, and that any society-altering decision should be made by the legislative or executive branch, not the judiciary. There is a logical, as well as historical, problem with that argument.
Logically, the Judicial branch is a co-equal branch of government. It is not lower than the other two. To say that the Court should only "Interpret" the Constitution makes no sense realistically. When any controversial decision is made by the Court, it is backed by precedence (Stare Decisis) and a view of how the issue meshes with the Constitutional provisions at issue. No Court decision, ever, has been based solely on the wants of its members, yet that is the claim of Federalists. They point to any decision that is "Ahead of its time" such as Brown and Roe (Notice it's only decisions that promote social justice that are the focus of their ire) and say the Court was being "Activist" and should have waited for the legislature to decide those issues.
The Constitution knows no such time limits. Nowhere is the phrase, "The Judicial shall wait until the Legislature has made a decision before the Judiciary shall make the same decision" or else there would be no purpose in a judiciary at all. The role of the Court is not to merely affirm the decisions of the Legislature. If Congress passes a law that is unconstitutional, is the Court supposed to wait for them to fix it? Their role is to determine what is constitutional and what is not, and yet Federalists would argue they are NOT to do so; instead, they should sit on their hands until Congress gets around to fixing their mistakes. But this has never been the role of the Judicial branch; it was never intended to be so, for otherwise it would be logically inconsistent for it to even exist; there would be no point if their job was simply to affirm the work of Congress.
Federalists will also argue that the Constitution should be interpreted as it was originally intended by the Founding Fathers. But this, too, rings hollow. Justice Brennan once said that the only way a person of the 21st century can interpret the Constitution is as a person of the 21st century. We can't pretend to be in 1780, because we aren't experiencing the same problems that the Founding Fathers were. Current hot-button topics include free speech on the world wide web, copyright and trademark infringement, gay marriage, and unlimited funding of political campaigns by massive corporations. Which of those issues was in the minds of the Founding Fathers when they wrote the Constitution? No, you cannot play Founding Father to find a constitutional solution to those issues, they are uniquely modern.
The second issue with interpreting based on the Founding Fathers is a realistic one; how do you know what the Founding Fathers thought? Yes, they wrote a few things down, but that's hardly a thorough road map to solving every modern problem. And if you know anything about how the Continental Congresses worked, every issue was highly contentious, and hotly debated. So even if an issue is addressed by a black-and-white reading of the Constitution, WHICH Founding Fathers would you listen to, and which would you ignore? Madison did not write the Constitution by himself. Many issues had several sides, with Madison, Hamilton, Jefferson, Washington, Franklin, and dozens of others split into various factions. Which do you choose? You can't. The Founding Fathers were not some amalgomous hive-mind, they were a group of individuals fighting for the values they each thought were most important, just as happens today. To say that we should judge, "Based on the Founding Fathers" is so simplistic as to completely avoid settling any issue ever.
The United States tried a system of state power and limited federal government. It failed miserably. To sit comfortably in the 21st century and attempt to handle the problems of our time using the non-existent unanimous opinion of the Founding Fathers is no plan at all. To say that the Judiciary should never contradict the will of the legislature is nonsensical and completely unsupported by the Constitution itself. The Federalist Society is then, by definition, as nonsensical as its foundational points.
posted by Burn1nMyLight at 10:23 AM
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