Or, “Or, Daddy, Why’s That Man Got The Federalist #45 Sticking Out of His Pocket?
Eeeewwww… is that… Hamilton?
Yep, I’m a happy member of the Federalist Society. Am I now, or have I ever been, a member of the Vast Right Wing Conspiracy?
Except it really doesn’t work that way.
The Fed Soc is a group of lawyers and judges, mostly but not all, conservative and libertarian, who are committed to textual and originalist approaches to legal interpretation.
Y’all said you wanted smart blogging, so here it is… kinda.
At any rate, the annual convention is on in Washington this week, and I’m attending. It’s a good way to get credits for continuing legal education (mandatory in many states if you want to maintain your law license) and a good way to make professional contacts.
The Fed Soc, as we lazy bloggers who can’t be bothered to type full names call it, is frequently vilified as a secret society. Problem is, it’s not secret, anybody who can write, kite or float a check can join. And sadly for me, it’s not exactly as nefarious as it’s been made out to be; otherwise, you’d all be my minions. Bwaaah haaaa haaa, bwaaaah haaaa haaa, bwaaah haaaa haaa, etc.
Yeah, you can make contacts there, but it’s more like making contacts at the gym, or on the golf course. For a lawyer, it’s important to trust your colleagues and subordinates – and it’s easier to trust someone who is academically rigorous and to some extent, predictable in their working methods.
Lawyers, predictable? Other than running off at the mouth, and being fantastict grubbers of money, what’s predictable about lawyers, you ask.
Here’s a news flash. The law is all about predictions. Predicting how a court would rule if your client was haled into court, his actions called into question.
You see, the black letters of the law are just the start of it. (And this point is of great frustration to most laymen).
For instance, we can imagine that some wandering Jewish tribesman had this conversation with his rabbi. ‘Thou shalt not kill’ is pretty clear, right? Well, what about Japeth? God just directed me to smite mightily Japeth, who slew Abimalek and was thereby an abomination in the eyes of the Lord… so what about that ‘don’t kill’ thing?
And the rabbi replied in a thick, Mel-Brooksian Yiddish accent, “vell, I dunno. It doesn’t say nothin’ ’bout killin’ no Japeths…”
And thus the cult of the Jewish lawyer was born.
Now a brief aside. In case you hadn’t guessed already, I’m not in that tribe. I’m in the boozing hard-ass Micktican lawyer tribe, which is actually a variation on the Cop/Priest guild of some weird legal Dungeons & Dragons game.
And yes, when I’m with my multi-culti lawyer buddies having a few in the office late in the day, we play a perverted kind of drinking game, opening up the Martindale-Hubble Lawyer’s Guide, and speed-reading the names of firms, but instead of saying the names we shout out the names as Irish, Irish, Jewish and Wasp; or Jewish, Jewish, Wasp, Italian and Son — but I digress.
As long as there have been rules, there’s been a fight about how to interpret them. The people of the book – first the Jews, then the (originally) Catholic nations of Western Europe, really focused hard on this process. And we’ve fought over it for millenia. How exactly do you interpret a rule book?
Federalist Society folks tend to think that wherever possible, you should use a set method for interpretation. This radical, conservative method is really just the orthodox method that has been applied by lawyers in common law countries for 1000 years – only in the last 30 years or so, has it come to be described as ‘radical’. Adhering to these rigid old methods isn’t limited to political conservatives. A lot of good liberal and libertarian folk believe in these methods too, for pragmatic reasons.
The opposite of this method is judicial activism. Sometimes people call “a judge who ruled against me” a judicial activist. But in reality, judicial activism means making up the law on the fly, from the bench, with rampant disregard for the little black letters that the legislature went to the time, and trouble, of burying in the congressional record and the statute books.
The method is simple. Look to the plain language meaning of the law first. E.g., “thou shalt not kill” means you can’t kill. Clear, eh?
If the text isn’t clear, look to past court cases discussing the law. If that doesn’t do it, check out the structure of the law – if the law addresses some things in a category, but not others, then the inclusion of some to the exclusion of the others, means the others must be okay. For example, “though shalt not kill the sons of Japeth or his brother, Abimalek” would pretty clearly rule out murdering Ham, the son of Japeth. But it wouldn’t rule out offing Cain, the son of Adam. Inclusion of one (no killing sons of Japeth, Abimalek) excludes the other (okay to kill sons of Adam, or anybody but Japeth or Abimalek).
There are other structurally related maxims of construction, but you get the drift. There are known rules and methods, and you should proceed through them in order of likely reliability, before you just go make some shit up.
If, and only if the question isn’t answered by these fairly rigid methods of interpretation, then you can go muck about with a divining rod, ouija board and tarot cards. Or in other words, legislative intent, sociological studies and courts from other countries.
And that’s how it should be.
The Chinese, who know a thing about order and chaos, refer to law as Fa(3). Translated literally, the word means “method”. Law is a method, or a process, whereby you can do things. It isn’t an end in and of itself, it’s a way of doing things.
And a method that lacks any method… well, draw your own conclusions.
The Fed-Soc events are nice because they usually have a series of debates featuring folks on the left, and right, and really all over the spectrum. In contrast to the American Constitution Society, speakers aren’t booed or hissed if there’s disagreement – they are listened to. This stuff is too serious to politicize – it’s about method. Just as a wood lathe or a tap & die set isn’t political, legal interpretive method should be political either because it’s basically a tool. If you’ve got something better, you should bring it to the table – and that’s why Fed-Soc events are debates.
Content to follow.