On the Federalist Society

[Randy Barnett]

As someone who is very sensitive to media bias and quick to point it out, I
wanted to observe that the New York Times article that provoked this thread
(and the "Once upon a time. . . " response by Radin and Zimmerman) was
amazingly fair and balanced--down to the level of noting that the Federalist
Society was actually a coalition of conservatives and libertarians, a fact
usually overlooked and which, in part, accounts for its viewpoint diversity.
The article was a model of reporting.  For those who missed it, you can find
it at:

http://www.nytimes.com/2001/04/18/politics/18FEDE.html?searchpv=site06

While on the subject of Federalist Society "myths," the Society has no
formal policy positions--or institutional mechanism for adopting and
disseminating such positions--and indeed its members support a pretty wide
variety of policies (though I would never claim that this variety includes
hard left political positions) and even judicial philosophies.  I know well
that both members and leaders are divided even on issues of constitutional
interpretation and the proper scope of judicial review.

Its official statement of purpose (from its web site
http://www.fed-soc.org/who.htm) reads:

"Law schools and the legal profession are currently strongly dominated by a
form of orthodox liberal ideology which advocates a centralized and uniform
society. While some members of the academic community have dissented from
these views, by and large they are taught simultaneously with (and indeed as
if they were) the law. The Federalist Society for Law and Public Policy
Studies is a group of conservatives and libertarians interested in the
current state of the legal order. It is founded on 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. The
Society seeks both to promote an awareness of these principles and to
further their application through its activities. This entails reordering
priorities within the legal system to place a premium on individual liberty,
traditional values, and the rule of law. It also requires restoring the
recognition of the importance of these norms among lawyers, judges, and law
professors. In working to achieve these goals, the Society has created a
conservative intellectual network that extends to all levels of the legal
community."

In my experience, there are no more specific commitments of the organization
and even this statement overstates matters a bit since many active
Federalist Society members would emphasize some of these principles over
others, and there is, again, no institutional mechanism for imposing on
chapters or members some particular take on what these principles entail, of
the sort seen, for example with the governing structure of the ACLU.  (I do
not object in any way to such a governing structure, but am only noting its
absence in the Federalist Society for those who might assume that these
organizations are similar in this regard.)  Moreover, the Society does not
publish position papers, initiate or participate in any litigation or engage
in any electoral activity.  In addition to a few fellowship programs, all it
does is organize conferences, meetings, debates, and speeches which, as
others have noted, are invariably balanced to some significant degree and
open to the relevant law school community.  Even when sponsoring speakers,
chapters are encouraged to seek out commentators with conflicting
views--though many have trouble finding faculty members who are willing to
participate.

Randy

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
http://www.bu.edu/rbarnett
http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
http://www.LysanderSpooner.org (Lysander Spooner Website)