Wednesday, November 28, 2007

The Federalist Society

The Federalist Society is something known generally to lawyers and law students but perhaps not to libertarians at large. The group claims to "believe in limited government."

At one time, when economic issues were the paramount libertarian issues in the U.S., the Federalist Society seemed almost libertarian. They promoted debate on issues, books on free markets and their web site declares their purpose as the following:

Our Purpose

* 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, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.

Nevertheless, during the Bush years, lawyers associated with this group have espoused a whole host of anti-libertarian positions. This is important because according to some, membership in the organization is a sine qua non for being hired by the Bush administration.

To this day, some libertarians still seem to believe that the Federalist Society is a friend of freedom in general, as opposed to mostly being composed of ultra-conservative advocates of capitalism, akin to the Heritage Foundation.

In my experience, I find that the members of this organization are hostile to the libertarian perspective on the 4th Amendment and a whole host of other issues. They are not even particularly sympathetic to federalism, anymore. I find no more kinship with this group than with the GOP in general, for which it is nothing more than a front group.

It basically serves to promote the cramped constitutional thinking of Robert Bork and Antonin Scalia, hardly champions of individual liberty, together with economic liberalism, as opposed to freedom in general. A true advocates of freedom in all its forms, such as William O. Douglas, is scorned because his writings were subtly based on the 9th Amendment and might be used to justify, gasp, abortion.

Yes, the Federalist Society has some freedom oriented publications recommended on their web site, but I see nothing about privacy rights or the fact that the hallowed United States Constitution has resulted in the largest prison system, both per capita and in sum, in the history of the world. Nor does this list appear to have been updated in a long time.

While the Federalists may have at one time been open to libertarian imput, this largely ended in the mid-90s.

I challenge anyone to point out one single Federalist appointee during the Bush administration who has embodied libertarian values in any way shape or form, or to point to any libertarian reforms that resulted from forums the group has advocated. This would be difficult because with a few exceptions for speakers from the Cato Institute, most of the fora involve only conservative speakers. A look at Special Projects, which have been done by the Society shows that virtually every single paper and conclusion therein promotes conservative ideals.

For instance, in the section on International and the War on Terror, libertarian or limited government viewpoints were almost entirely unrepresented, with the vast number of articles and papers offering support for virtually all of the Bush Administration's actions.

The only area where the Society's scholars seem to think the Administration has overstepped, is not surprisingly, with respect to the increasing federal criminalization of corporate crimes. Truly, that must be why the United States has more people in prison per capita than the Soviets ever did; it is because we imprison so many thousands and thousands of CEO's and bank presidents.

It may not be 1984, but there is certainly something truly "doublespeak" about a group that claims to believe in limited government but which seems unable to find anyone willing to write or speak in favor of positions held by vast numbers of libertarians.

Here is someone who is a card-carrying member of this group that I believe embodies its current anti-classical liberal membership:

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