Two types of Federalists?

My political views often surprise people.  My criminal defense lawyer friends are always shocked to learn that I support school vouchers.  My conservative friends (who consider me a loyal ally) groan when they learn I support decriminalizing almost everything.  But especially confusing to my liberal friends is my membership in the Federalist Society.

I can understand the confusion, and it exists because liberals assume there is only one type of Federalist.  But unlike the left, we Federalists are diverse.

I think there are two main types of federalists: the Heritage-Federalists and the Cato-Federalists.  Our different approaches on policy, especially on crime and federalism, can be illustrated by comparing two different discussions on overcriminalization.

In Measuring the Explosive Growth of Federal Crime Legislation, sponsored by the Heritage Foundation, former Attorneys General Edwin Meese and Richard Thornburgh criticize Congress' willingness to criminalize garden-variety crimes, e.g., car jacking..  Some of the reasons they disagree with the growth of the criminal code include Congress' stepping on the toes of sovereign states, and the high economic cost to pay the law enforcement officers (including generous salaries and pensions).  However, not once did Mssrs. Meese or Thornburgh talk about how unjust it is for a person's conducted to be covered by overlapping federal and state laws. 

Heritage-Federalists are still down with the establishment, the only difference is they prefer smaller units of goverments.  Powerful states are fine, a powerful federal government is less desirable. 

Cato-Federalists are more of the anti-establishment wing.  We are as concerned with individual rights as the ACLU.  We differ with the ACLU on many issues, though, because unlike the left, we think that less government leads to greater individual liberty.

Thus, in this amicus brief, the Cato Institute argued against a broad reading of the Commerce Clause because:

Federal Duplication of State Criminal Codes Threatens Individual Rights.
The passage of the federal statute governing “interstate domestic abuse” is part of a trend in which Congress has been duplicating state offenses in the federal criminal code, particularly on “hot-button” issues suitable for political posturing. See AMERICAN BAR ASS’N, TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, THE FEDERALIZATION OF CRIMINAL LAW (1998) at p. 2. That expansion of federal authority into areas the Framers never intended undermines many aspects of the constitutional structure they designed, throwing the system out of balance in ways that threaten individual rights and liberty.

For example, the Framers of the Bill of Rights intended that no person should “be subject for the same offence to be twice put in jeopardy of life or limb,” meaning that a person cannot be punished twice or prosecuted after an acquittal for the same crime. U.S. Const. amend. V. But this Court has ruled that a state prosecution will not bar a subsequent federal prosecution for the same conduct, because the state and federal governments are “separate sovereigns” with distinct interests to protect. Abbate v. United States, 359 U.S. 187 (1959). The “separate sovereign” doctrine would not often compromise the constitutional protection against double jeopardy if the federal government were restricted to its enumerated powers and created federal crimes only to address the genuinely national issues within its authority. But the duplication of state criminal codes, exemplified in the “interstate domestic abuse” statute, threatens to render double-jeopardy protections meaningless.

Moreover, the federalization of state crimes may deprive the accused of rights and procedural protections afforded by state law but not applicable in federal prosecutions. For example, states may provide broader protections against entrapment, broader rights to pretrial discovery, and even a broader right to counsel. See KAMISAR, LAFAVE, AND ISRAEL, MODERN CRIMINAL PROCEDURE 49, 392-97, 1128-36 (7th ed. 1990). Federal duplication of state criminal codes creates the potential for those rights and protections to be circumvented by the simple expedient of prosecution in federal rather than state court. Indeed, the Petitioner in this case has cited evidence that she was prosecuted in federal court in part so that New York’s requirements for corroboration of accomplice testimony could be avoided. Pet. at p. 24.

But perhaps most importantly, the demise of the doctrine of enumerated powers would leave all individual rights in jeopardy because it would eliminate the Constitution’s first line of defense against an overweening central government. The Bill of Rights was added to the Constitution as a “back-up” system, but the primary protection was meant to reside in the enumeration and hence limitation of powers. As one scholar has noted, “[t]here is no reason to believe * * * that the Bill of Rights itself will survive over the long term if the rest of the plan is abandoned. As National Aeronautics and Space Administration engineers say, once you start relying on the backup systems, you are already in trouble.” Reynolds, supra, CATO INSTITUTE POLICY ANALYSIS NO. 216, Oct. 10, 1994, at p. 28.

Heritage-Federalists care about federalism because it strengthens the states.  Cato-Federalists support federalism because it will help individual liberty flourish. It's two different worldviews ( though as we get into nuance, we agree more with each other).  So now you know not to prejudge a member of the Federalist Society.  Odds are that the Federalist Society is more diverse than the ACLU.

Comments

[Ray]

You may turn me into a Federalist. I've known a few Libertarians and have always respected their consistency and intellectual honesty. Sounds like the CATO types tend in that direction.

I too have noticed an increase in federal prosecution of acts that you wouldn't think of as crimes, let alone federal crimes. The bordello on Canal Street in New Orleans was shut down due to a federal prosecution (prostitutes traveling across state lines). A prior insurance commissioner was investigated for a crime they decided he didn't commit, then prosecuted and sentenced to 6 months in prison for lying to the investigators when he was not under oath. Not exemplary behavior -- just a "crime" caused directly by the investigation.

[Aaron]

Back during law school, I bumped into a friend of mine as he was emerging from a Federalist Society meeting, where he had been displeased with the results of a vote by the membership. "That result," he declared, "offends every libertine bone in my body." As Freudian slips go, it took him a while to live that one down.

[Jason]

Very astute but why don't you come out and say it: there's the libertarian/secularist Fed-Soc people and the conservative/religious ones; and, we mostly get along by mutually despising the liberals.

[ken]

ummm . . .

Maybe because some of us lean toward libertarianism and still believe?

[Fred]

I would say that there aren't just two main types of Federalists: there are dozens. In legal circles, and especially elite legal circles, the number of non-liberals tends to be small enough that anyone who does not consider himself on the political left but is still interested in the issues can end up being a member of the Federalist Society.

As a result, you end up with evangelicals against Roe, libertarians against big government, pro-law enforcement types in favor of the police, mushy moderates just not on the left, social conservatives against modern establishment clause jurisprudence, Republicans of various stripes just interested in making political connections, etc., all ending up as members of the Federalist Society.

[Aaron]

Today, something made me think about this. Specifically, I was contacted by a Fox News reporter who is writing a piece about the new Cato publication for their website, and found myself expressing opinions which I would venture were 100% consistent with both the Cato Institute's and which will probably prove to be consistent with Fox News' editorial stance.

[ambimb]

Great piece; you've helped clarify the Federalist Society for me, and your analysis is consistent w/similar arguments I've read about the "right" more generally -- that rather than being a monolithic party, it's really a loose coaltion of competing factions that often compete against each other but which manage to rally behind certain pivotal issues (e.g. abortion, "law and order," school vouchers, etc.) when it counts, such as during election seasons. There seems no greater evidence of this that the "values" rhetoric of the 2004 elections where the concept of "values" became an empty vessel that each different faction on the right filled with its own content in order to convince that faction's members that Bush was their best choice.

However, I take issue w/your conclusion that "the Federalist Society is more diverse than the ACLU." This may be true, but it's arguable at best. The "left" has been criticized for decades (both from those who consider themselve part of the left and those on ther right) for being too factious and diverse to advance a coherent agenda that can compete with the coalitions on the right. For example, Lieberman Democrats are at least as far apart ideologically from, say, Kucinich Democrats or Greens as are Heritage Federalists from Cato Federalists, yet the Liebermans and Greens are still equally likely to be part of the ACLU and to oppose much of the agenda of the political right. It seems to me that both sides do themselves and society a disservice when they make condescending generalizations about the "other side." Even talking about "left" or "right" is obviously an oversimplification to which we tend to resort in order to strengthen whatever position we happen to be promoting ourselves.