Because original meaning depends on facts, it is, in principle, ascertainable, unlike the personal values of judges.
I had the pleasure of attending the Federalist Society’s faculty convention in New York last weekend. I learned, as always, a great deal about issues, including those outside my field, like intellectual property. But it was also an occasion to recall why the Federalist Society is so important to the cause of law and liberty in the United States.
Lawyers, as Alexis de Tocqueville noted almost two centuries ago, play a crucial role in the political order of the United States. He observed that United States lacked an aristocracy, and lawyers filled that void, because they were experts in the democracy’s mode of governance.
When society reflects the spontaneous ordering of private law and a limited role for government, lawyers tend to be a force for property and legal stability. Under those circumstances, it is private law, after all, that provides much of their living. Thus, lawyers by and large at the beginning of our republic protected the constitutional structures that both promoted commerce and sustained the rights of property.
But since the rise of the modern regulatory state and social democracy, the role of lawyers has changed. They often act as technocrats and enablers of regulation and redistribution. The more a nation intervenes in economic affairs, the greater the slice of compliance costs and transfer payments lawyers can expect to receive. As a result, as a group lawyers no longer support property rights or even a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty it brings.
Of course, as individuals many lawyers hold ideals that are distinct from the general financial interests of their profession. But trade associations, like the ABA, will not provide a network to nurture these sentiments and harness these lawyers into a force for a stable rule of law and limited government. The Federalist Society performs this essential function, creating an organization that acts as a counterbalance to the natural ideological tendencies of the most important social class in our contemporary democratic society.
But the world is always changing with new issues that need analysis under the prism of well tested principles. The Federalist Society thus constantly offers forums, like the one I attended, for lawyers and law students to discuss the issues of the day both among themselves and with lawyers of opposing views. With its combination of organizational acumen and openness to debate, the Society has proved the most important voluntary association begun in the last quarter of the last century.