Our Constitution, as originally written, did not allow women or black people to vote. We needed amendments to provide basic rights to all Americans. We have a long history of updating the Constitution to keep up with changes in society.
In opposition to this generally accepted practice is the Federalist Society for Law and Public Policy Studies (the Federalist Society), a far-right organization that believes in a textualist and originalist interpretation of the United States Constitution.
Founded in 1982, the Federalist Society is funded by Charles Koch and other conservative ‘big business’ leaders. https://www.nytimes.com/2020/10/12/opinion/charles-koch-amy-coney-barrett.html
They are responsible for much of the conservative legal framing used today. Frames such as ‘checking federal power’, ‘protecting individual liberty’, and ‘interpreting the Constitution according to its original meaning’ originated with the Federalist Society. They formed a network for conservative lawyers, and they mentor students and young lawyers in their conservative ideology. The Federalist Society is incredibly influential in shaping legal thinking and has shifted the country's judiciary to the right.
The success of the Federalist Society is undeniable. They are the gatekeeper for conservative lawyers looking for government jobs and federal judgeships under Republican presidents. They suggested judicial nominees to President Trump and vetted Trump’s U.S. Supreme Court nominees. They hold undue influence on the U.S. Supreme Court - five Supreme Court Justices (Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito), along with nominee Amy Coney Barrett, are current or former members of the Federalist Society.
How did this happen? By the 1970s there were so many left-leaning organizations fighting for liberal causes, such as the NAACP and ACLU, that conservatives realized they needed one of their own. So, they started the Federalist Society. But the Federalist Society is not comparable to liberal organizations. The Federalist Society is the legal version of the anti-intellectual strain that has permeated the right-wing of American politics for the last 60 years.
Their underlying premise is that words have ‘ordinary public meaning’ so the language of the laws ‘means what the average person understands them to mean’. When you get behind that statement, it means that legal training is not necessary because ‘we all know’ what the words mean. Experts aren't required. But simple examples show that ‘ordinary public meaning’ is a meaningless assumption. For instance, assume a statute involves vehicles. What does ‘vehicle’ mean?
Is a car a vehicle?
Is a canoe a vehicle?
Is an airplane a vehicle?
Is a bicycle a vehicle?
Is a pair of roller-skates a vehicle?
Is a motorcycle a vehicle?
If you ask the average person, you'll get several different answers to those questions. But originalism, as practiced by the Federalist Society, tells the big lie that ‘we all know what that word means.’ Just like ‘we all know what marriage means.’ And ‘we all know what discrimination means.’ And ‘we all know what to keep and bear arms means.’ Things change over time – like the innovation of weapons that could not have been imagined by the framers who wrote the Constitution. Liberal ideology calls for a current interpretation of the Constitution in today’s terms.
If we're going to listen to the Founding Fathers, we might consider the words of Thomas Jefferson carved into the Jefferson Memorial:
“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
There isn't a liberal version of the Federalist Society, and that is a feature, not a bug. Liberal lawyers believe in a living Constitution and believe that institutions must advance to keep pace with the progress of society. While the Founders were not perfect, their single greatest innovation was the realization that the Constitution had to grow and change with the times. The Federalist Society's ideology is inconsistent with the wisdom of the Founders they pretend to admire. Liberal lawyers aren't going to organize into a consistent philosophy because they don't believe in the premise of the question, that there's one right way to do this.
The Federalist Society is part of the broader anti-expert populism that took over the right. We study Framing Secrets of the Right to understand how this happened. But our New Liberal Movement offers broad coalitions to fight back. Our liberal frames of empathy, protection, and inclusivity as related to our modern world were not explicitly spelled out in the original Constitution, but are the bedrock for our living Constitution.
Lisa DiRado
Partner, Liberal Leadership League, Inc.
It's easy to see the history of the conservative movement in this info-graphic. Our only defense is to frame the conversation based on our liberal values - empathy, responsibility for each other, protection, and the common good.