Being Serious About The US Constitution
IT'S a coffee break during a conference in a Washington hotel. Cups clatter and conferees, stretching their legs, buzz. One catches a snatch of a nearby conversation. The subject is ... the 10th Amendment.
For readers who don't have the US Constitution handy, the 10th Amendment reads: ``The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''
Before you spend too much time trying to figure out what that pretzel of a sentence means, understand that, as a matter of constitutional jurisprudence over two centuries, the sentence has virtually no meaning at all. As a curb on the power of the federal government, judges have all but ignored the 10th Amendment, citing it about as often as Hammurabi's Code. It's a dead letter.
But don't tell that to some of the earnest people who gathered in the nation's capital recently for a conference sponsored by the Federalist Society for Law and Public Policy Studies. For them, hope never dies that some great jurist will inject content into the 10th Amendment and raise it as a shield to protect Americans from what they see as a power-grabbing and insatiably wealth-sucking centralized government.
To be sure, most Federalist Society members - being very smart and in many cases even brilliant legal scholars, judges, and lawyers - probably don't entertain such a remote dream. But these are people who believe strongly in limited government and individual freedom, and they take the Constitution very, very seriously. The society takes its name from the Federalist Papers, and its patron saint is James Madison, primary drafter of the Constitution.
The Federalist Society was started in 1982 by conservative law students and faculty members at Yale, the University of Chicago, and several other law schools. The founders not only disagreed with what they regarded as the prevailing liberal orthodoxy in legal education - with its emphasis on big government, wealth redistribution, indifference to property rights, and racial preferences - but they also were appalled by the lack even of any rigorous debate over such issues.
The society, which now has chapters in 130 to 135 law schools as well as a Lawyers Division for practicing attorneys, sponsors a crowded calendar of speeches, debates, and symposia aimed to stimulate debate; it also publishes legal monographs.
The level of discourse at its gatherings and in its publications is invariably high, and the society tries hard to balance the viewpoints presented. High-powered liberal legal thinkers like Nadine Strossen, president of the American Civil Liberties Union, and Walter Dellinger, formerly a Duke Law School professor and now a top official at the US Department of Justice, regularly face off against conservative heavyweights like Supreme Court Justice Antonin Scalia or former US solicitor general Charles Fried.
Even many liberals on law-school faculties credit the society with increasing intellectual exchanges on campus. ``We have probably doubled the amount of formal debating that goes on in law schools,'' says executive director Eugene Meyer. Listening to the characteristically penetrating discussions at last month's conference titled ``Reinventing Self-Government: Can We Still Have Limits on National Power?'' - one can appreciate the service that the Federalist Society is performing.
And yet, upon observing the virtually all-white, upper-middle-class audience, questions formed: Are there concepts of liberty, of freedom, that their constitutionalism of ``enumerated powers,'' ``original meaning,'' and ``judicial restraint'' simply can't embrace, or even conceive of? Does their opposition to race-conscious law produce a law that is unconscious to racism, or poverty, or inequality? Just outside that room was one of the most racially polarized cities in America, a city where a Grand Canyon separates the haves and have nots; but that city seemed a world apart. Can the Federalist Society make the connection?