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Constitutional Revolution

This article originally appeared in The Wall Street Journal on March 26, 2015.

By John O. McGinnis

In the early 1980s, a handful of students at Yale and the University of Chicago created a small organization as a counterweight to what they saw as the monolithic left-liberal outlook of the legal academy. Today the Federalist Society has chapters at almost every American law school and counts more than 40,000 lawyers among its members. The last Republican appointee to the Supreme Court, Samuel Alito, was a member before ascending to the bench.

One tribute to the Federalist Society’s success is that it is now an object of study by the very academic culture it was designed to counter. In “Ideas With Consequences,” Amanda Hollis-Brusky, an assistant professor of politics at Pomona College, argues that the society has become a powerful transmission belt for moving conservative and libertarian ideas into the legal mainstream. Using concepts borrowed from the history of science, she presents the Federalist Society as a “political epistemic community” whose networks have created a “paradigm shift” in the way the wider world frames constitutional questions. She is not entirely happy about this shift, but her analysis, for the most part, has the neutrality of a thoroughly researched social-science study.

Ms. Hollis-Brusky notes that the key belief of this “epistemic community” is originalism—the idea that the Constitution should be interpreted according to its meaning at the time of enactment. While that view dates back to Chief Justice John Marshall in the early 19th century, it is true that, by the middle of the 20th, it had fallen into disrepute in the academy and disuse at the Supreme Court. The great virtue of “Ideas With Consequences” is the way in which it traces the Federalist Society’s revival of originalism and the effects of this revival on legal debate and the direction of the court.

In four topics of contention—campaign-finance regulation, state sovereignty, the Commerce Clause and the Second Amendment—Ms. Hollis-Brusky shows how members of the Federalist Society have offered incisive critiques of existing law and suggested originalist alternatives to settled interpretations. Until the 1980s, for instance, the general view was that the Second Amendment protected only a collective right to maintain a militia. Supporters of that view pointed to the amendment’s preamble: “a well regulated Militia, being necessary to the security of a free State.” They took this phrasing to mean that the “right to keep and bear arms” was to be exercised only for the purpose of assembling a citizen-army.

In an influential 1998 article, UCLA law professor Eugene Volokh, a prominent Federalist Society member, showed that many state constitutions included similar preambles but explicitly protected the gun-ownership rights of individuals. Other society members highlighted sources from the Founding era, such as Blackstone’s “Commentaries,” to support the proposition that the right to bear arms attached to individuals, not militias.

Such arguments, as Ms. Hollis-Brusky shows, affected Second Amendment jurisprudence. Members of the society filed amicus briefs, which were in turn sifted by Supreme Court clerks, some of whom fell within the Federalist Society’s “political epistemic community.” Justice Antonin Scalia prominently cited such materials in District of Columbia v. Heller (2008), holding decisively in favor of the individual right to bear arms. Ms. Hollis-Brusky—drawing on speeches, briefs and articles—tracks a similar arc of influence in rulings on campaign finance, state sovereignty and the Commerce Clause. Her arguments about the society’s substantial impact have merit, but her sometimes mechanistic approach can slight other forces.

It was crucial, for example, that the Federalist Society arose in the 1980s, following the election of Ronald Reagan: His administration gave a platform for the ideas favored by the society—not least its opposition to freewheeling judicial discretion. As the country moved to the right, it would also become more amenable to the original meaning of a document that reflects classical liberal principles rather than the more collectivist ones that had long held sway.

Ms. Hollis-Brusky notes that Harriet Miers,George W. Bush’s first nominee for Justice Sandra Day O’Connor’s vacant seat, lacked Federalist Society credentials. But that was not her biggest problem. The society had given an intellectual depth to conservative jurisprudence that Ms. Miers wholly lacked. The withdrawal of her nomination signaled that a sophisticated framework of ideas can constrain even a right-of-center nominee from a conservative president.

Most of the time, Ms. Hollis-Brusky doesn’t let her own political views show. But she does summarily endorse Justice John Paul Stevens’s claim that Citizens United—the 2010 court decision permitting corporate messaging at election time—will damage “the integrity of elected institutions across the nation.” Such a bald normative assertion does not belong in a descriptive analysis.

Ms. Hollis-Brusky ends by wondering how liberal lawyers can counter the Federalist Society’s influence. She observes that the American Constitutional Society, a liberal counterpart founded a few years ago, is not likely to play as important a role: Many institutions, including bar associations and prestigious law schools, already develop liberal legal arguments and support liberal causes.

The Federalist Society has succeeded because, much like cable news and Internet commentary, it offers an alternative to viewpoints that, for a long time, defined themselves as politically neutral but were in reality left of center. Ms. Hollis-Brusky worries that the rise of the Federalist Society may lead to more polarization of the law. But the alternative would be worse—a progressive legal consensus maintained by elite institutions, masquerading without challenge as unimpeachable wisdom.

- John O. McGinnis is a professor of law at Northwestern University.

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