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Monday, August 01, 2005

More on the Federalist Society and Debate

More internal dissent among ex posters. Regarding Phocion's post below, PG says, among other things:
[T]he American Civil Liberties Union asserts its sole purpose as being defense of the Bill of Rights (except for the strongest reading of the 2nd Amendment), whereas the Federalist Society, despite claims that it is only for debate, asserts certain views associated with conservatism on its own website.
I think she's missing the point.

An organization can obviously be for debate because their views are not being properly represented. Sure, the members of the organization generally ascribe to "certain views associated with conservatism," but that doesn't mean they're not primarily interested in convincing people through debate rather than misleading propaganda. Nor do those certain views tell us anything interesting because those views contain both sides of every major issue (the fascinating libertarian/conservative dynamic). This is Phocion's larger point, that since every view is represented somewhere in the Federalist Society, and are being debated, everyone should want to be involved in that debate.

The Federalist Society does not, like the ACLU, take a position that is contested if not essentially contested and dogmatically ascribe to it and litigate it for all it's worth. The Federalist Society is about recognizing the importance of ideas, and either debating them among themselves or interjecting debate into the law schools. If we are going to gain members, it is going to be through rigorous debate, not a requirement that new members agree with us.

So the distinction between the Federalist Society and some of its compadres on the Left is the method of persuasion. What we think we've learned that the Left misunderstands is that when you stop trying to convince people and try and force things upon them, your efforts don't stick, and are only good as long as your people are in charge (i.e. as long as you have a majority on the Court). If you convince people, however, then they continue to run things the way you would like. I think this is far more honest, focuses on genuine debate about issues rather than misleading propaganda.

Brown is the obvious exception, and continues to be the rallying cry for the litigating Left. Since Brown was more accurately a cause at the forefront of the civil rights movement rather than an effect of democratic legislation, we decide that we don't need to engage the public in debate, but will take our case to the courts and convince them to make the important changes.

But Brown should not be such a catalyst. Its reasoning was a sham, and could have easily been reached by an interpretivist approach and saved the legitimacy of the written constitution. And whatever value the departure from a formalist understanding of the Constitution in the context of blatant racial discrimination, issues like abortion and the use of the death penalty for murderers do not warrant such a departure.

To be fair, PG's post comes around and concludes that we need to be focusing on Roberts' jurisprudence, not his club membership. But I think Phocion's points are spot on. In my experience, the vast majority of federalist society members are in the organization to learn through the debate, have not made up their minds on every issue. And even for those issues that we are pretty convinced, it is through debating the issues that we plan on bring others to the fold.


Anonymous Anonymous said...

"But Brown should not be such a catalyst. Its reasoning was a sham, and could have easily been reached by an interpretivist approach and saved the legitimacy of the written constitution."

OK Helvidius. Go ahead. Briefly outline an easy way to reach the holding of Brown "by an interpretivist approach." That claim is made all the time and, though I practice education law, I've never seen it made convincingly.

1:00 PM  
Blogger Helvidius said...

I find both Bork's defense in Tempting of America and Charles Black's defense persuasive. I assume you are aware of both of these; what, specifically, does not persuade you?

1:06 PM  
Blogger Son of Liberty said...

Also Michael McConnell has provided the best defense of Brown from an originalist view point.

9:29 AM  
Blogger PG said...

I found McConnell's unpersuasive, but perhaps I should give it another read.

11:35 AM  

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