I pick what groups and organizations that I associate with carefully – very, very carefully. I look for certain qualities – backbone, open minds, and collective intelligence to name a few – and, if I find an organization or group wanting in any of those traits, I take a hard pass on being associated with them. Thus, if there is one thing that is absolutely gut-emptying repugnant to me, it is when an organization adopts a holier-than-thou code of dignity and uses it to banish or otherwise marginalize purveyors of sentiments that do not conform.
You see, I am the ultimate non-conformist and royal pain-in-the-rump on a lot of points. You don’t like that? Good. I like ticking other people off.
Self-glorifying rant aside, I am beginning to grow concerned about the Federalist Society’s resolve in the aftermath of the unauthorized January 6th tour of the Capitol building. The Society did the right thing in the aftermath of the festivities. It absolutely declined to comment on them as an organization. Such a stance is no surprise. I have been a member for a good four years now, and I can never recall the Society officially commenting on any political event.
In other words, the Federalist Society has been a model non-profit organization. It has stuck to its mission despite what the world thinks. At the same time, it places no limitations on its members as long as they do not speak in their official capacities as leaders of the organization. Doing so has drawn the ire of United States senators and a good portion of the United States population. As a former student chapter vice-president who confronted more than a little of that ire – both personally and organizationally, I can tell you that it feels good to irritate people by sticking to your principles. Too bad the rest of the country can’t figure out how good it feels.
Thus, when it came to light that prominent members of the Federalist Society had spoken at the protest that was held on the same day as the new Capitol tour protocol got off to its short-lived existence, criticism rained down on every side. To its credit and my delight, the Society dug in and continued to refer people to its oft-stated policy that, while it will not restrict its members’ opinions, it would take no official position on the events or condemn its members and leaders for their involvement.
Both the grapevine and an increasing number of public criticisms, however, are starting to tell me that the Society’s stern and well-placed resolve may be weakening under internal pressure. As someone who respects and admires the backbone the Society has previously displayed, I cannot tell you how concerning that is to me, and I believe that even a bending of that resolve will spell the end of the Federalist Society as we have known it.
The internal criticism boils down to this.
John Eastman – a now former professor of law at Chapman Law (thanks cancel culture) and the current chair of the Society’s Federalism and Separation of Powers practice group – spoke at the pre-tour protest where President Trump and his associates spoke. He had been quite vocal in articulating his theories on how the results of the election could be overturned and represented President Trump before the U.S. Supreme Court. He reiterated them at the protest. Senators Josh Hawley and Ted Cruz – prominent members of the Society and frequent keynote and featured speakers – also participated in the efforts to overturn the election results.
Federalist Society members and leaders are now calling for Eastman to be forced out of his Society leadership position and, for him, Cruz, and Hawley to be denied future speaking opportunities at Federalist Society events. Some members including Above the Law founder, David Lat, have called for a voluntarily-imposed quasi-speech code for Federalist Society speakers. The word on the street is that the powers-that-be within the Society have given these criticisms serious consideration. After all, they have to keep money and membership flowing.
Adopting any of the internal critics’ suggestions, however, means surrendering the Society’s spine and its principles to the tides of public opinion. The cascading effect would be the suppression of ideas that push the boundaries too far. I don’t know what legal or scholarly rock that the internal critics have been hiding under, but I have found Professor Eastman’s work to be fascinating and intellectually stimulating even when I do not agree with it. His work on his elections theories is no exception. Indeed, I admire that Cruz and Hawley put whatever arguments that they could come up with out for consideration.
Imposing a speech and ideas code based on outrageousness would be catastrophic to the development of ideas, which the Federalist Society has done a tremendous job in promoting. In my view, it would spell the end of the Federalist Society as a useful organization, and I would have no hesitation in terminating my membership immediately.
If my memory serves me correctly, Thomas Sowell described John Stuart Mill as a brilliant runner who had no worthy rival so he ended up running against himself. It led to one of the strangest compilations of contradictory work by a philosopher in human history. The Federalist Society would essentially be recreating Mill by imposing a speech and ideas code based on outrageousness. Its scholars thrive on challenging their fellow members’ ideas. For example, I have advocated that Randy Barnett, Evan Bernick, and Kurt Lash’s exchange of competing articles on the Fourteenth Amendment should be mandatory reading in law school precisely because of the brilliancy that competing ideas have compelled.
While the best of the Federalist Society’s discourse is conducted with true scholarly dignity, it cannot escape the fact that discourse is often raw and rancorous. Some subjects require it. Other times, personalities bring it there. Creating a standard of faux dignity is really creating a bubble to escape reality in.
Reality has a way of bursting those type of bubbles. Grow up and learn to tolerate it. The public square is large enough to hold both the boisterous and the meek. Hey, the meek might even find refuge to do their best work in quietly rebutting the boisterous. They, however, will not even be working if they keep running from the reality of public discourse, which has always contained the mixture of the coarse, rugged, meek, and dignified.
Wrapping up, I am going to share bits of a story from my final year of law school. I made some comments in a personal capacity at a school meeting that were purposely misconstrued for malevolent purposes and garnered substantial controversy. When I learned of the controversy, I offered the president of our Federalist Society student chapter my resignation from the vice-presidency position if it would help take the spotlight off the Society.
I remember the conversation vividly. The president told me that she disagreed with my comments, but that she would not accept my resignation under any circumstances. In other words, she refused to accept my resignation because she was not going to impose an outrageousness standard on the rest of the chapter leaders which would chill their expression of their beliefs.
The chapter did not suffer from the aggrieved reaction to my comments. The national Federalist Society won’t either from Eastman, Hawley, or Cruz.
I hope that the Society holds fast and keeps its spine. If not, it won’t be the first organization that I terminate my membership from because it lacks the spine to hold to its principles.