On December 5th of last year, a conversation took place between two men who have come to embody the philosophical tenets of the American Constitution Society and Federalist Society. Antonin Scalia and Stephen Breyer were joined by both of those organizations in a discussion of the Constitution. The moderator posed an initial query: does a judge “do justice” or “apply the law?" Neither gave a straight answer.
There responses ranged for the entire 90 minute session. They spoke of the multifaceted and incalculable repercussions of the decisions made by the Supreme Court. They both emphasized something oft troubling to law students: policy and particular justice are not always congruent.
From that tension, inherent in the adjudication of law, springs the necessity for both the Federalist Society and the American Constitution Society.
The mantra of the Federalist Society is that “the province and duty of the judiciary [is] to say what the law is, not what it should be.” It reminds jurists and attorneys that the strength and integrity of our judicial system stems from the democratic origins of the laws it applies. Judicial humility and restraint respect this truth.
The ACS draws the legal profession in another direction. It seeks to “ensure that fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice enjoy their rightful, central place in American law.” This mission bespeaks another undeniable and essential characteristic of American Courts: they are respected insomuch as they satisfy the human thirst for justice.
And so justice is left to balance, as represented by the pervasive imagery of the scales, not merely the competing interests of the present parties, but to balance further equity in the instant with the weight of precedent. While any system administered by people is hampered by our own imperfections and subjectivity, it is the responsibility of the ACS and FedSoc to perpetually zero the scales of justice, ever tweaking the balance to ensure that, from a broad perspective, justice is done.
While we often find ourselves on the receiving end of one another’s diatribes, ACS and FedSoc are really engaged in a common enterprise. The intellectual and professional tension fueled by deeply differing philosophical emphases holds the entire legal community upright as wires on a suspension bridge.
With that amiable stance in mind, the Federalist Society and
Our chosen profession is defined by argument: civil, reasoned, and inspired. We expect nothing less.Update (1/25): Rick Schwartz has posted an introduction to the dialogue on Ex Post (the CLS FedSoc Blog):
ACS v. FedSoc
Yesterday, the Federalist Society's left-leaning counterpart, the American Constitutional Society, announced on its blog the beginning of some collaborative debate and discussion between FedSoc and ACS members. Realizing the problems of collective participation (not to mention Borking), ACS members acquiesced and admitted that competition might be a better engine of intellectual growth than the previous system of coercion, dubbed "voluntary participation."
Let me simply close, by pointing out that my ideas do NOT stand for all of the Federalist Society's members. I say so in order to emphasize that this enterprise is intended to promote a free market of ideas where individual ideas are emphasized over any imagined duty to remain consistent with one's party affiliation. Of course, this indirectly coincides with one of the core beliefs associated with the Federalist Society: the idea that competition brings out the best results in the participants. Hopefully this friendly competition will inspire some good, civil discussion, as a reason to think critically and practice your advocacy in an open environment. So, members of FedSoc and ACS, you now have your chance to share the pearls of your keen Ivy-league intellects, and earn your side some fleeting internet glory (and if you're actually worried about the paper trail, that's fixable).