Legal Commentary

Having just returned from a Federalist Society student conference, I was once more struck between the vast gulf that separates the Federalist Society from their apparent namesake, the Federalist Party. True, the Society displays a silhouette of a periwigged guy who might be Publius. But the basic tenets of 1790s Federalism seem antithetical to the basic tenets of Federalist Society principles. For instance?

(1) The 1790s Federalists distrusted free markets and wanted the government to be heavily involved in industrial policy through tariffs, monetary manipulation (assumption of state debts), and subsidies for infant industries (see Hamilton?s report on manufacturers). The Anti-Federalists and Democratic-Republicans opposed the Federalists on all of these policies: According to Elkins & McKitrick, The Age of Federalism 77-161 (1994), this difference marked the essential breach that divided Madison from Hamilton and, more generally, Federalists from Democratic-Republicans (1790s-1820s), Whigs from Democrats (in the 1830s-1850s), and Republicans from Democrats (in the 1870s-1890s).

(2) The 1790s Federalists disliked state power and decentralization generally. The Federalist Society seems to support such decentralization.

(3) The 1790s Federalists were largely New England elitists who really believed that America would be better off if it were governed by the morality and leadership of Harvard Yard. The Federalist Society seems to follow William F. Buckley?s dictum on a preference for the first 50 names in the Cambridge phone directory and, more generally, claims to dislike cultural elitism and speak up for popular mores in sexuality and criminal law.

(4) The Federalist Party of the 1790s wanted to enforce international law and norms of natural law against the states. See, for instance, Hamilton?s famous argument in Rutgers v. Waddington (N.Y.C. Mayor's Ct. 1784) or Marshall?s opinion in The Charming Betsy regarding international law as a canon of statutory construction.

In short, should not the Federalist Society call themselves something like ?the Country Party?? Or ?the Old Whigs?? Or the ?Civic Republican Commonwealth? Party? That is, should not they make it clear that they identify with the 18th century opponents of those anti-libertarian, anti-states? rights, globe-trotting Eastern-educated elites like Hamilton, Gouvernour Morris, Fisher Ames, John Jay, et al?

Just wondering.