An essentially contested concept

The Federalist Society is grappling with the always-grappled-with conundrum of democracy versus rights (or democracy versus law, democracy versus principles, democracy versus charters). Democracy is more fair and just than dictatorship or monarchy, but then what about democracies that persecute minorities? What do you do when the majority is all for violating human rights?

This year’s gathering was even more important than most. As the first student symposium since the Supreme Court handed conservatives a historic package of victories on gun rights, religious freedom, environmental deregulation, and, of course, abortion, the weekend offered a window into the shifting priorities and preoccupations of the youngest and most elite members of the conservative legal movement, at a time when the future of the movement as a whole is quietly unsettled. 

The first major clue about those preoccupations came from the symposium’s theme, which the organizers had designated as “Law and Democracy.” As the programming unfolded over the next day and a half, it became alarmingly clear that, even among the buttoned-up young members of the Federalist Society — an organization not known for its political transgressiveness — the relationship between those two principles is far from settled. 

Is it ever settled? Can it ever be settled? It seems to me the tension is built in. Majorities don’t always respect human rights. Democracies can neglect or persecute their own minorities. They can and do and have.

To those who have followed the Federalist Society closely since its triumphs at the Supreme Court last year, the symposium’s focus on law and democracy may hardly seem incidental. Since its founding in 1982, the Federalist Society has championed “judicial restraint,” the notion that judges should limit their roles to interpreting the law as written, leaving the actual business of lawmaking to democratically elected legislatures. 

Which is a sensible principle on its face, but at the same time, democratically elected legislatures can be very eager to make law that violates some people’s rights. It’s always a tug of war.

That approach made sense for conservatives when they still saw the federal judiciary as a liberal force dragging the country to the left. But now that conservatives have secured a solid majority on the Supreme Court — and voters in several red states have soundlyrejected hard-line positions on abortion — a spirited debate is underway within the Federalist Society about the wisdom of deferring to democratic majorities as a matter of principle.

Or to put it another way, deference to democratic majorities is good when it goes our way but not quite so good when it doesn’t. Who knew?

“From our very beginning, there has been an aspect of judicial restraint, and there has been an aspect that it’s judges’ jobs to interpret the Constitution, that whatever it says, that’s what they should do — and those two can sometimes be in tension,” said Eugene Meyer, the president and CEO of the Federalist Society, as we spoke in a back hallway of the conference center. 

What I’m saying.

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