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Monday, March 10, 2008

Why does the Federalist Society differ from the Federalist Party?

Having just returned from a Federalist Society student conference, I was once more struck between the vast gulf that separates the Federalist Society from their apparent namesake, the Federalist Party. True, the Society displays a silhouette of a periwigged guy who might be Publius. But the basic tenets of 1790s Federalism seem antithetical to the basic tenets of Federalist Society principles. For instance…

(1) The 1790s Federalists distrusted free markets and wanted the government to be heavily involved in industrial policy through tariffs, monetary manipulation (assumption of state debts), and subsidies for infant industries (see Hamilton’s report on manufacturers). The Anti-Federalists and Democratic-Republicans opposed the Federalists on all of these policies: According to Elkins & McKitrick, The Age of Federalism 77-161 (1994), this difference marked the essential breach that divided Madison from Hamilton and, more generally, Federalists from Democratic-Republicans (1790s-1820s), Whigs from Democrats (in the 1830s-1850s), and Republicans from Democrats (in the 1870s-1890s).

(2) The 1790s Federalists disliked state power and decentralization generally. The Federalist Society seems to support such decentralization.

(3) The 1790s Federalists were largely New England elitists who really believed that America would be better off if it were governed by the morality and leadership of Harvard Yard. The Federalist Society seems to follow William F. Buckley’s dictum on a preference for the first 50 names in the Cambridge phone directory and, more generally, claims to dislike cultural elitism and speak up for popular mores in sexuality and criminal law.

(4) The Federalist Party of the 1790s wanted to enforce international law and norms of natural law against the states. See, for instance, Hamilton’s famous argument in Rutgers v. Waddington (N.Y.C. Mayor's Ct. 1784) or Marshall’s opinion in The Charming Betsy regarding international law as a canon of statutory construction.

In short, should not the Federalist Society call themselves something like “the Country Party”? Or “the Old Whigs”? Or the “Civic Republican Commonwealth” Party? That is, should not they make it clear that they identify with the 18th century opponents of those anti-libertarian, anti-states’ rights, globe-trotting Eastern-educated elites like Hamilton, Gouvernour Morris, Fisher Ames, John Jay, et al?

Just wondering.

Posted by Rick Hills on March 10, 2008 at 09:53 AM in Life of Law Schools | Permalink


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Prof. Hills,

Your question is an important one. Very likely, many others are wondering the same thing about the name of the Federalist Society. Quite frequently, the Society is confused with the Federalist Party. It shouldn't be.

George Hicks nicely explains how the Society has come to be named. The following excerpt from his article speaks to the points you've raised, but I commend the whole thing to you because it offers more of the Society's history:

"[A couple of Yale Law] students thought it would be 'a lot of fun' to form a group to bring conservative and libertarian speakers to the school to challenge the reigning liberal orthodoxy. Over lunch, they hashed out the first critical issue: what to name themselves. Lawson, a committed libertarian, suggested 'The Ludwig von Mises Society' after a philosophical forebear of the libertarian movement. Another proposal, 'The Alexander Bickel Society,' generated little enthusiasm. A third offering, 'The Federalist Society,' met with initial opposition. Lawson contended that 'The Anti-Federalist Society' was a more apt name because the Founding-era Anti-Federalists favored decentralized government, a principle the students at the lunch table shared. 'The Federalist Society' ultimately prevailed, however, for three reasons. First, it called to mind the Federalist Papers, which the students viewed as the epitome of reasoned discussion and rational persuasion, two of their common interests. Second, the Federalists of 1787 were the faction committed to the Constitution, which the students wanted to restore in the face of perceived liberal reformulation. Third, the reference to federalism in the name implied a balance between state and national governments, which the students preferred to the disproportionately centralized national government that they believed had developed."

George W. Hicks, Jr., The Conservative Influence of the Federalist Society on the Harvard Law School Student Body, 29 Harv. J.L. & Pub. Pol'y 623, 648 (2006).

Posted by: Dennis | Mar 10, 2008 10:25:41 PM

Everything that I noted about the 1790s Federalist Party goes for "Publius" of the Federalist papers -- except, perhaps, for the remark about subsidies for industry. Jay, Hamilton, and pre-1791 views of Madison were (a) not libertarian; (b) not pro-states' rights; (c) pro-internationalist (cf. attacks on states' betraying the treaty of Paris and ruining American credibility); and (d) anti-populist (cf. attacks on "wicked schemes of paper money").

This is not to condemn the Federalist Society: I think that they run a terrific and fair-minded meeting. I just think that they might need a new mascot -- say, Andrew Jackson?

In another words, Publius sort of seems like a New York Times reading liberal.

Posted by: Rick Hills | Mar 10, 2008 3:43:41 PM

For one thing, the FedSoc isn't a political party at all; they're much more of a debating society, albeit one that is obviously trying to get certain views within the range of respectable opinion. They're certainly willing to sponsor debates on the relevance of international developments to domestic law, for instance. But it's Madison's silhouette on the logo, not Hamilton's. I think they're trying to evoke the views of the Federalist Papers, not those of the Federalist Party.

Posted by: Chris | Mar 10, 2008 3:19:41 PM

Great points! What I find particularly ironic is that the word "federalist" comes from the word "foedus" which is a kind of treaty. See Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism 315 (1993) (arguing that when Madison used “foederal” in context of compact federalism, he meant contemporary conventional sense of foedus, or treaty). Shouldn't the Federalist Society be more receptive to the use of international law in constitutional construction?

Posted by: Francisco Forrest Martin | Mar 10, 2008 1:13:25 PM

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