Federalists and the Federalist Society

Brad DeLong’s son asks:

First, neither wing of the original Federalist Party was “strict constructionist.” The Hamilton-Adams wing was aggressively eager to expand the power of the federal government from the get-go. The Madison-Jefferson wing protested severely as long as the levers of power were in the hands of their ex-friends and now adversaries, but once Jefferson was president the Jefferson-Madison wing was happy to run the activist Hamiltonian government, and to do even more: witness the Louisiana Purchase.

Why, then, do those who, like Supreme Court Chief Justice John Roberts, claim to be “strict constructionists” call their organization the “Federalist Society”? Does this make any sense?

An easy one:

• Federalist Society judges aren’t “strict constructionists.” A “strict constructionist” would not, for example, claim that 11th Amendment’s prohibition on suits against a state by citizens of another state really means that a citizen cannot sue her own state, but most Federalist Society Justices do.
• The term “strict constructionism” (as Antonin Scalia himself has conceded) is nonsensical when applied to constitutional interpretation in any case. It’s not a serious legal term in the contexts in which it’s usually invoked; it’s a term designed to fool the general public. As Rehnquist said, “a strict constructionist judge is one who favors criminal prosecutors over criminal defendants, and civil rights defendants over civil rights plaintiffs.”
• My understanding is that the “Federalist” designation refers more to the Federalist Papers than Federalism per se. That said, it’s still rather strange to invoke Hamilton on behalf of the propositions that the courts have become dangerously powerful and the power of the federal government should be curtailed. But that’s the point: “Federalist” is vague enough that its meanings can shift to whatever the Republican Party platform requires at a given time.
• On the other hand, perhaps the label was very presciently intended to invoke the behavior of Federalist Society-beloved judges during the 2000 elections, which bears some similarity to the Federalists trying to stop the winner of the popular vote in 1800 (although, in fairness, the Federalists in 1800, unlike Scalia, Rehnquist and Thomas in 2000, were at least working with a plausible understanding of the Constitution.)

I wish the Herblock cartoon republished in The Brethren (in which Rehnquist and Burger destroy a house called “rights of individuals” while the couple inside says “but I thought they were strict constructionists!”) was available online….