The Federalist Society or The American Constitution Society: Which organization is more partisan?


Author: Brandon Middleton

Conservatives and libertarians are fortunate to have The Federalist Society as a source for scholarly discourse and robust public policy debate.  This is from its purpose statement:

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order.  It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.  The Society seeks both to promote an awareness of these principles and to further their application through its activities.

With The Federalist Society having achieved much success in recent decades, folks on the left formed The American Constitution Society as a counter-organization.  ACS explains its position on its homepage:

The American Constitution Society (ACS) believes that law should be a force to improve the lives of all people. ACS works for positive change by shaping debate on vitally important legal and constitutional issues through development and promotion of high-impact ideas to opinion leaders and the media; by building networks of lawyers, law students, judges and policymakers dedicated to those ideas; and by countering the activist conservative legal movement that has sought to erode our enduring constitutional values. By bringing together powerful, relevant ideas and passionate, talented people, ACS makes a difference in the constitutional, legal and public policy debates that shape our democracy.

The Federalist Society is known for not taking a position on the merits of particular laws and judicial decisions–the point of The Federalist Society has always been to foster debate, with the understanding that the views of the right have often been underrepresented in the legal academy and bar.

My impression had always been The American Constitution Society was based on similar principles–that perhaps ACS felt that modern political discourse had given too much credit to the right, that an alternative venue was necessary in order to reaffirm the left’s position amongst lawyers, but that the goal of ACS was increased civil debate, not substantive positions on particular legislation or judicial decisions.

Judging from ACS’s reaction to today’s decision by Judge Vinson to invalidate the individual mandate, I guess I was wrong:

Today’s decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century – since the New Deal – and, actually, dating back to Chief Justice John Marshall’s expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson’s recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.

It’s hard to imagine such a partisan statement from The Federalist Society had the decision gone the other way.