How the Federalist Society Destroyed the U. S. Constitution

“Old Glory” has lasted for more than 235 years. It won’t be good for another 50.

It’s “official”: the United States no longer has a constitution. Sure, we have the appearance of one, a “dead man walking” constitution, if you will. But given one swift kick, it will all fall to pieces. Chief Justice John Roberts, aka “Mr. Balls and Strikes”, has destroyed that once storied edifice for all time.

There are numerous reactions to Roberts’ ghastly majority opinion in Trump v. United States, but you have to read the actual ghastly text yourself to get the full effect¹ of Roberts’ absolutely shameless twisting of “the law” to give him the results he wants. Consider, for example, Roberts’ assertion that Trump’s hysterical and entirely false January 6 rant, claiming that he won the election by an absolutely massive margin and that there were states that wanted to “recertify” their electors, could—could, mind you, for one must always keep an open mind about these things—be considered an official act of the president, and thus immune from prosecution:

The alleged conduct [regarding January 6] largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” Hawaii, 585 U. S., at 701; cf. Lindke v. Freed, 601 U. S. 187, 191 (2024). As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.

In quoting from “Hawaii” (Trump v. Hawaii), Roberts is quoting himself, in a “controversial” 5-4 decision allowing President Trump to ban immigration to the U.S. from selected “terrorist” countries, the point of Roberts’ statement in Hawaii apparently being that the president of the U.S. can say any damn thing he pleases and not have it come back to bite him in the ass.² I don’t know why Roberts said that the president has an  “extraordinary power to speak to his fellow citizens” in the first place—why is his power more “extraordinary” than anyone else’s?—and I have no idea why he cites Lindke v. Freed at all, which is about whether a city manager can block someone from commenting on his private Facebook page.

Chief Justice John Roberts was able to push this supremely ugly political football over the line with the help of the “Federalist Society Three”—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barratt—the three justices appointed by Donald Trump, chosen by him from a list prepared by the notorious “Federalist Society”, a right-wing outfit formed by a bunch of rich guys an alliance of dedicated idealists who claimed to want to take the U.S. back to the good old days when the Constitution was interpreted on the basis of what it said, rather than on the basis of what it ought to have said—the supposed “doctrine” of “originalism”. I was therefore particularly amused—to the extent that one can be amused these days—by the struggles of three “originalist”/Federalist Society types—David French of the New York Times, William Braude, a University of Chicago law professor also writing in the Times, and Ilya Somin, who teaches at the unfortunately named Antonin Scalia School of Law at George Mason University in Virginia and writes for the Volokh Conspiracy—to understand how supposedly card-carrying “originalists” like Roberts and his partners in crime could get it so wrong—as if “originalism” is actually a thing, rather than a “heads I win tails you lose” intellectual fraud—which is precisely what it is, and what it has always been.³

In his column, the often honest Mr. French says, regarding both Trump v. United States and the equally execrable Trump v. Anderson, “I reject the simplest explanation — the explanation you can see plastered all over social media — that the court’s conservative majority is biased in favor of Trump.” To bolster his case, he notes that the Court, in “real time”, constantly rejected legal arguments by MAGA partisans to seize control of the election process in the 2020 presidential election and ensure a Trump victory.

Well, that’s all well and good. But that was then, and this is now, and twice the Court has delivered shamelessly result-driven opinions that simply reject the rule of law and make the Constitution say “Trump walks. Deal with it.” There is no other possible explanation. The fact that the Court has made “non-Maga” decisions in the past, and even made some this session, cannot detract from the blatantly dishonest decisions it has made, with no other possible goal than to allow Donald Trump continue his corruption of American society.

For his part, Professor Baude also relies heavily on the “Court usually gets it right” argument—except when it comes to the Donald:

What is going on? Some critics say that everything the court does is generally unprincipled and illegitimate, which is not correct.

Others may suggest that the court is pro-Trump, that it is twisting the law in order to help the most recent (and potential future) Republican president. But that is highly doubtful, too. Among other things, Chief Justice Roberts, the author of Trump v. United States, was repeatedly attacked by Mr. Trump.

What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions’ disproportionate responses to Mr. Trump. It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.

The notion that it is “highly doubtful” that the Court is pro-Trump because Trump has criticized Roberts is laughable and, to be rude, an unimpressive argument coming from a U of Chi man. Furthermore, nothing is more obvious than that Justices Alito and Thomas clearly are pro-Trump, seeing him as the nation’s one true bulwark against the forces of anarchic atheism.

As for Professor Baude’s last paragraph, this is mere speculation/ass-covering on the good professor’s part. How does he know what is “more likely”? Is he the searcher of all hearts? I thought that was God’s job. What Billy saying is that the Court doesn’t care that Trump is guilty of sedition, that instead of being locked up for his many crimes, he should be allowed to go free and, indeed, become president for a second time, so that he can continue to further corrupt American society.

Furthermore, there is nothing “disproportionate” in prosecutors around the country actually, you know, prosecuting crime, something that somehow seems to offend Professor Braude. What’s “disproportionate” is the unprecedented number and unprecedented severity of Donald Trump’s unprecedented crimes, not to mention the unprecedented “bad faith” of supposedly distinguished Trump semi-apologists like Professor Billy Boy. I also must “compliment”, cum magna ironia, the good professor for his passive-aggressive use of the passive voice in his reference to “Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.” Note that Dr. Bill isn’t saying himself that TDR is a thing “afflict[ing] so many liberal elites and even Never-Trump conservatives.” No way, Josephine! It’s just some “other people” who are saying it! You know, those guys!

In his conclusion, Professor Baude tells us that, by protecting Trump, “The court is motivated by statesmanship, which the country sorely needs today. The problem is that this statesmanship is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts.” To my mind, the greater problem is that the Court is engaging in “statesmanship” on behalf of the greatest criminal in American history, something that not all of the good professor’s fancy, pseudo-even handed footwork can conceal. Billy’s the kind of guy who won’t steal a car but does enjoy riding in them. A lot.

Ilya Somin, yet another befuddled originalist, quotes heavily from Sonia Sotomayor's dissent, giving the “true” originalist reading of the Constitution, denying presidential immunity, unable to understand why the “originalist” majority somehow got it all wrong while consoling himself with the ridiculous “hope” that the “vagueness” of Roberts’ decision—necessarily “vague”, for its substance was smoke and mirrors—will limit the damage that it will do, unable to face the fact that the decision was reached for one reason, and one reason only: to let Donald Trump walk, and the Constitution—and the country—be damned.⁴

For of course the decision’s “vagueness” won’t limit its damage, because the decision effectively guarantees that, barring extreme good luck, which this country has been seriously short on for decades, Donald Trump will be president again. Twice now the Court has rewritten the American Constitution—has lied to the American people—to protect the greatest criminal in American history, the only man in our history to actually attempt to overthrow our system of government and illegally hold the office of head of state of the United States of America. Roberts and the rest of the “Unholy Six” are effectively accessories after the fact in Trump’s seditious crimes. Abuse of the law can go no further.

Perhaps Trump II won’t be “that bad”, though there’s absolutely no reason to believe that that will be the case. Nothing can be clearer than that Trump has corrupted the entire Republican Party, has taught them to exclaim “conspiracy” whenever things don’t go their way, and encouraged them to think that official positions necessarily imply plenary power to do “what’s right”—that is to say, to ensure that “we win”, at whatever cost and to whatever end—and there’s no reason to believe that we won’t see Trumpian tactics at the state and local level. In fact, as this story in the Washington Post demonstrates, these tactics have already started.  Furthermore, there is no question but that senators like J. D. Vance, Tom Cotton, Ted Cruz, and Josh Hawley all see themselves as “Son of Trump” and Vance in particular is clearly desirous of turning the U.S. into a sort of plebiscitary dictatorship, with himself at the helm.

But beyond that, there is also no reason for liberals to respect the honor of the Court or agree to the notion that the Constitution actually has any fixed meaning at all—or that an 18^th century relic from the times of wigs and bondage has any necessary relevance to life in the 21^st century. It is, I guess, “kismet”, or karma, or something else that begins with a K, that it was the Dobbs decision, overturning Roe v. Wade, that most enraged the left, even though I have always thought that Roe was a terrible decision, and that Dobbs was “appropriate”—though I could have done without Justice Alito’s smug triumphalism. But that is irrelevant. Sooner or later, a “new” Democrat will win the White House. It may not be the Notorious AOC herself, but it will be someone just like her, someone who doesn’t know from Locke’s Second Treatise on Government, doesn’t know from the Federalist Papers or the celebrated Montesquieu, and when that happens, the Supreme Court of the United States will be treated with all the contempt it has so sadly earned and so richly deserves, and the Constitution will go along with it. I only hope Chief Justice Roberts is around to experience the debacle.

The Bottom Line: The U.S. Constitution, as the great prop and guarantee of our freedoms, is headed for the trashcan. Whether the final coup de grâce is administered by the right or left is, at this point, irrelevant. What will emerge in the future will be something very different from what we have known.

Special Extended Afterwords—Why is “Originalism” not a thing?

I said earlier that “originalism”, taken so earnestly by our trio of “experts”, is not any sort of coherent doctrine, but merely an excuse to maximize conservative power and minimize that of liberalism. In the past I have attacked this supposed “doctrine” from many sides and many angles. To begin with, the entire notion that there is a single, knowable “Constitution” with a single, knowable meaning—the sort of Constitutional fetishism traditionally engaged in by both liberals and conservatives—is false. The Constitution was a profoundly political document, cobbled together with the overall goal of creating enough of a central authority for the 13 newly independent states to defend against both internal disorder and external enemies without causing any of the 13 to compromise on what it regarded as its essential interests, a document containing and concealing many contradictions that, it was hoped, would not cause significant problems in the future. There were crass compromises—apportioning seats in the House but not the Senate by population, for example—agreed to only because the small states refused to accept the “representative” Senate originally proposed by James Madison. It is well known that the word “slave” does not appear in the Constitution. Was this because the “Framers” did not want to “recognize” slavery in the Constitution or because they preferred to pretend that it did not exist, even though they knew it did? Or both?

The contradictions, compromises, and ambiguities in such a document did not “bother” its authors. Rather, they recognized that the only way such an undertaking could actually succeed was to let everyone have his private “take” on the Constitution. Reaching a consensus on any seriously large undertaking—and there are few things larger than founding a nation—necessarily requires “making room” for a basic human frailty, to wit—“I don’t have to win, but I can’t lose.” Nailing down every detail guarantees disaster.

Among the right, the most beloved document in the “myth” of the Constitution, other than the Constitution itself, of course, is the Federalist Papers, a collection of essays largely written by James Madison and Alexander Hamilton to promote the acceptance of the nascent Constitution by the 13 original states. But, by “originalist” standards, the Federalist Papers cannot be used to “explain” the Constitution. Only the Constitution itself can be used to explain the Constitution. The Federalist Papers, however impressive they are as expressions of political thought, are simply propaganda designed to “sell” the Constitution rather than guides to what it really “means”. More interesting to me is that once the Constitution went into effect, one time besties Jim and Alex became bitter political enemies, with sharply conflicting opinions on what the Constitution really “meant”—almost as though the Constitution had as many meanings as it had readers, and there was no “real” Constitution at all!

The Constitution was necessarily the entirely contingent result of contingent events. If George Washington had died prior to its writing, the office of the presidency would surely have had far less power than it actually received. If Washington had been opposed to the very idea of a Constitution, it probably would not have come into existence at all. The Constitution and the Declaration of Independence are almost invariably read together, as classics of “natural law”, yet Jefferson was strongly opposed to the Constitution—almost as if there were, you know, two kinds of natural law! Maybe more! Once in office, Jefferson did as much as he could to reduce the federal government’s power, meeting his greatest opponent in this endeavor in the form of Chief Justice John Marshall. Suppose Marshall had died and Jefferson had replaced him with Madison? Or with a simple non-entity? What then?⁵

It is, I think, particularly interesting to know how casually James “Father of the Constitution” Madison took the Constitution. When the Constitution first went into effect, there was confusion over the power of the president to remove a cabinet officer. If the president needed to have the Senate’s approval to appoint a cabinet officer, did he also need its approval to remove one? Madison, serving in the House of Representatives at the time, “explained” that “we forgot”. The Constitution offers no guidance. So, instead, use “common sense”. Problem solved!

Even more interesting was Madison’s treatment of the issue of Alexander Hamilton’s National Bank, which he first opposed as unconstitutional. Later, as president, he supported the bank. Why? Well, as it turned out, having a National Bank was a good idea, and “everyone” recognized that it was a good idea. And so any good idea that meets with wide approval is ipso facto “constitutional”. Problem solved!

“Originalism”, as first developed/weaponized by the Federalist Society, largely amounted to the old conservative dream of going back to the “Horse and Buggy Court” that overturned FDR’s “National Recovery Act” and generally rejected all forms of social legislation as infringements on private property, or the “sacred” right of contract (according to Barry Goldwater) or “states’ rights”—you could always find an excuse somewhere— although, in truth, even in its innocent heyday of the Reagan years Court conservatives never really threatened to undo the New Deal. Instead, their target was the Warren Court and its “descendants”, who, over and over again, found that the Constitution mandated reform, first in Brown v. Board of Education and then in a litany of ground-breaking decisions that, from a liberal point of view, simply brought the United States into the 20^th century—a point of view that was, often, correct.

At first, the Warren Court carried all before it. In the North, here was massive, bipartisan support for the elimination of segregation, both public and private, but this support, peaking with the passage of the 1964 Civil Rights Act, quickly began to recede, and dropped like a stone with the race riots of the late 1960s.

The Warren/Burger Court didn’t take the hint. The justices took for granted that their values embodied “civilization” and “justice”, ideals conveniently embodied—embodied in and mandated by—the Constitution. Furthermore, they embraced a painfully optimistic notion of human nature—the belief, really, that all humans are middle-class liberals at heart, and just need a little coaxing to act that way. Sadly, the human heart is not so simple, and the forced busing cases of the early 1970s, the prolonged war over the death penalty, and most of all the profoundly secular decision in Roe v. Wade, all reflected a Court that essentially felt it could do no wrong. “Judicial reticence”, a rule of thumb more often quoted than obeyed, had gone out the window.

The Federalist Society’s reading of the Constitution naturally reflected the political exigencies of the time. Conservatives, buoyed by Nixon’s massive win in 1972, were convinced that they could win elections, even though Congress remained stubbornly Democratic. It was the courts that were the problem. Thus, it was elections, not courts, that should make policy, and the power of the presidency should be exalted above all.

Carter’s surprise win in 1976 could be dismissed as a fluke, as “proved” by Reagan’s massive success at the polls in both 1980 and 1984. Bush’s win in 1988, coupled by the Soviet Union’s collapse in the following year, “proved” that the new millennium was near at hand.

And then, magically, horribly, it all went away. Clinton’s election shattered conservatives’ faith in America. Before, they thought they couldn’t lose. Now, they thought they had to cheat to win. Conservatives, relying on the positions of power in the federal court system they had garnered during 12 years of Republican rule, waged an absolutely shameless legal war against Bill Clinton, weaponizing the legal process in every possible way to bring Billy down. But “craft” simply wasn’t enough. In Bush v. Gore, conservatives proudly and openly put their thumb on the scales for all to see. We win, you lose! Suck it up! And now Trump v. United States makes Bush v. Gore look like child’s play. When the Supreme Court itself enables sedition, it’s time for a new deal.

1. I confess I did not read the whole thing. My stomach is not that strong.

2. In particular, the state of Hawaii was arguing that Trump’s prior statements displaying hostility and contempt for Islam were grounds for the Court ruling that Trump’s proposed ban violated First Amendment guarantees for the freedom of religion. Roberts essentially concluded, citing precedent, that the president’s power under the Constitution to admit or exclude foreign nationals was very largely beyond the scope of judicial review and that overturning the proposed ban on the basis of speculation as to the president’s motives would constitute an improper intrusion by the Court on executive authority. Still, it’s “interesting” to note that most of the statements Trump made that Hawaii cited as indicating prejudice against Muslims were made before he became president, when his “extraordinary power” didn’t exist. In fact, Roberts’ opinion, as far as I can tell, doesn’t rely at all on any notion of the president’s “extraordinary power” to address the American people that would somehow prevent his words from being used against him, but rather whether the president’s ban can be shown to have a “rational basis.” “That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes”—and, of course, Roberts found that it did. His little homily regarding the president’s “extraordinary power” strikes me as irrelevant to the actual decision and nothing more than mere “dicta” (“words”), without constitutional sanction in Hawaii and meaningless as “precedent” in Trump v. United States.

3. On a case by case basis, I often agree with supposedly “originalist” decisions—though often I do not. What I don’t accept is the notion that all of these cases—along with the many that I don’t agree with—are little more than exercises in deductive legal logic, carried out with near-geometric precision and ease.

4. This notion that Roberts’ decision is somehow “limited”—making it, I guess, only mildly atrocious—is also the tack taken by Justice Amy Coney Barnett in her pathetic concurring (in part) opinion, wherein she pretends that this is a “narrow” ruling, which it most obviously isn’t. Amy reminds me of a sorority girl who gets a ride from some cool Kappa Alpha guys and too late discovers they’re into dirty jokes, racist jokes, and antisemitic jokes, while enjoying tequila “shots” straight from the bottle. She wishes she hadn’t gotten in, but they are on the tennis team, and she’s never ridden in a Land Rover before, and anyway, you can’t expect her to walk, can you? In these heels?

5. I have, quite probably, used these “what ifs” before, but I’m too lazy to go back and reread everything I’ve written on the subject.