The danger of the Federalist Society approach

Does the world change? Do we learn and grow in our understanding of that world or should we seek to remain rigid and unchanged, tied to our first impressions and ideas? Further, can any one of us assume that our interpretation of someone else’s intentions is always going to be correct?

The Federalist Society would have us answer “no” to the first two questions and yes to the third. Personally, I find that to be a deeply ignorant and problematic view of the world. Yet there are many aspiring and current lawyers, judges and even our own governor who subscribe to this narrow worldview.

A recent profile in the Wisconsin State Journal shines a light on Walker’s Federalist Society affinity, pointing to his many appointments and endorsements of people with ties to the conservative group. For instance, both state Supreme Court justices appointed by Walker, Rebecca Bradley and Daniel Kelly, were past presidents of the Milwaukee Federalist Society chapter. Michael Brennan, a Milwaukee lawyer who created the Milwaukee chapter, leads Walker’s judicial advisory selection committee.

This trend is not unique to Wisconsin, certainly, as the Federalist Society has become one of the most influential legal groups in the country over the last few decades. Formed in 1982 by some of the most prominent conservatives in the country, it aims to bring what it calls a “textualist” or “orginalist” interpretation of the U.S. Constitution to our courts.

At first blush this may not seem all that alarming. The group paints itself as a defender of the Constitution as the Founders intended it, and a push back against “activist judges” who they see as using the bench to create new laws through their interpretations.

Dig a little deeper, though, and the danger (not to mention impossibility) of this tack becomes more clear. As pointed out in the Wisconsin State Journal profile, Walker is seeking lawyers and judges who “use an interpretation of the U.S. Constitution that relies on the literal meaning of words rather than interpreting a law’s intention.”

There are two major problems with this approach: The first is simply that things change. If we treated the Constitution (or, indeed, any code of laws) like a fixed document rather than a living, breathing one, we never would have eradicated the evil practice of slavery. Women wouldn’t be allowed to vote. Presidents would have no term limits. How we handle domestic and international trade, science, technology, economics would all be stuck in the 18th century.

I think it’s safe to say we can all see that there have been more than a few massive sea changes in everything from economics to communication to social mores since the U.S. Constitution was penned.