# Was Judge Roberts in the Federalist Society? Does it matter? **URL:** \ **Category:** Great Debates\ **Created:** [July 26, 2005, 3:48am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170 "2005-07-26T03:48:18Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 7:53pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/61 "2005-07-27T19:53:31Z")
> [@Dewey Cheatem Undhow](#): > > No, you aren’t. Can I at least get you to admit that the theory you are espousing is novel, and lacks any kind of serious support in either constitutional jurisprudence or from constitutional scholars? You are trying to confuse the issue. Justice Burger certainly seems to have agreed that the 9th Amendment protects rights not made explicit by the Constitution but only implicit in its language. (See the quote I cited above.) My own philosophy would take that further and give the Court leeway to discern and protect rights without going through contortions to moor those rights to specific Consitutional language. I believe that is precisely what the Framers had in mind. They understood rights to be reserved to the people as a matter of natural law, not doled out by the federal government via the Constitution. Can you point to language by one of the Framers indicating that a right should not be recognized unless it flows directly and implicitly from one of the rights enumerated in the Constitution? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 27, 2005, 7:59pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/62 "2005-07-27T19:59:47Z")
> [@spoke-](#): > > Good of you to admit that a Federalist Society Court would have struck down the Act. And in so doing they would have left the South segregated indefinitely. Gosh, what a great victory over “judicial activism” that would have been. No. If the majority of the country wants to establish the rights in the Civil Rights Act across the entire nation, there is a process for doing that-- amend the constitution. Otherwise, yes, it should be up to the states. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [July 27, 2005, 8:12pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/63 "2005-07-27T20:12:24Z")
> [@](#): > > Originally Posted by Dewey Cheatem Undhow > > Indeed, as it exists today, it is the very absence of a clear textual basis for such a right that raises our hackles – it represents, in a very real way, an amendment to the constitution without going through the ordinary amendment process. And thus, it violates our notion of government by the consent of the governed. As an added aside, isn’t the Constitution itself the antithesis of democracy? A bunch of dead white guys (no women, no blacks) decided 200 years ago we have the right to be free from unreasonable searches and seizures. Perhaps a majority of people today disagree. Why should we be bound by the decisions of people who lived and died long before any of us currently living was even born? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 8:15pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/64 "2005-07-27T20:15:09Z")
> [@spoke-](#): > > Good of you to admit that a Federalist Society Court would have struck down the Act. “Admit”? You make it sound like I’ve tried to hide or minimize that fact and you’ve had to drag it out of me, when in fact I’ve noted it in _every single post of mine in this thread dealing with the '64 Act_. :rolleyes: > [@spoke-](#): > > Under a Federalist Society Court, the Civil Rights Act would have been a nullity, creating no rights whatsoever. Which has fuck-all to do with the fact that (1) the CRA exists, (2) it creates rights, and (3) Federalist Society members recognize facts 1 and 2. My point, you’ll recall, is that there are sources of legal rights other than the federal constitution, including state constitutions and state and federal statutes. I brought up the CRA as such a statute. Whether the Federalist Society types support or oppose a given statute does not change the fact that (1) statutory rights exist, (2) the Federalist Society recognizes 1, and (3) the Federalist Society (and me) views the 9th amendment as protecting 1 (among other sources). ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 8:20pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/65 "2005-07-27T20:20:39Z")
> [@Blalron](#): > > I’m baffled that you put such faith in unchecked democracy. What do you think of the _Kelo_ decision? I am honestly torn by _Kelo_. On the one hand, I do want the text of the constitution vigorously enforced, and the court in _Kelo_ does seem to be essentially deleting the phrase “public use.” On the other hand, I prefer the court to err on the side of constitutionality, both because legislative choices are more in line with notions of the governed’s consent, and because it’s a lot easier to undo a bad legislative choice than it is to undo a bad Supreme Court finding of unconstitutionality. Indeed, it appears that [this is exactly what is happening in the wake of _Kelo_](http://www.post-gazette.com/pg/05205/542340.stm). Which is a good thing, in my book. So like I said, I dunno. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 8:22pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/66 "2005-07-27T20:22:35Z")
Again I point you to the words of the Framers. James Madison: > [@](#): > > [T]here is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude Certainly doesn’t sound to me like he’s worried about rights created by statute or by state constitutions. (Surely you don’t contend those are the “essential rights” to which he refers?) Sounds to me like he’s worried that it would be impossible to list all of the fundamental rights reserved to the people, and that he intends the people to retain those rights whether or not they are explicitly spelled out in the Constitution or its amendments. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 8:23pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/67 "2005-07-27T20:23:44Z")
> [@spoke-](#): > > Can you point to language by one of the Framers indicating that a right should not be recognized unless it flows directly and implicitly from one of the rights enumerated in the Constitution? If you’re honestly interested in the reasoning leading to my position on constitutional interpretation, go to the “Rights? What’s a Right?” link in my first post in this thread. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 8:25pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/68 "2005-07-27T20:25:46Z")
> [@Dewey Cheatem Undhow](#): > > If you’re honestly interested in the reasoning leading to my position on constitutional interpretation, go to the “Rights? What’s a Right?” link in my first post in this thread. OK, I’ll take a look. In the meantime, answer the question: Can you point to language by one of the Framers indicating that a right should not be recognized unless it flows directly and implicitly from one of the rights enumerated in the Constitution? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 8:36pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/69 "2005-07-27T20:36:21Z")
> [@spoke-](#): > > Can you point to language by one of the Framers indicating that a right should not be recognized unless it flows directly and implicitly from one of the rights enumerated in the Constitution? Not offhand, but then again I am not a strict constructionist because of pithy quotes from Madison, et al. I am a strict constructionist because that position flows from certain first principles, principally notions of consent of the governed. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 8:43pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/70 "2005-07-27T20:43:39Z")
> [@Dewey Cheatem Undhow](#): > > Not offhand, but then again I am not a strict constructionist because of pithy quotes from Madison, et al. I am a strict constructionist because that position flows from certain first principles, principally notions of consent of the governed. By “the governed” you mean folks like the white majority in the pre-1964 South? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 27, 2005, 9:02pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/71 "2005-07-27T21:02:06Z")
**spoke** : What do you think of the decision in [_Gonzales v. Raich_](http://en.wikipedia.org/wiki/Gonzales_v._Raich)? Given the constutionality of the Civil Rights act and other precedent (based on the commerce clause interpretation), could the court have decided \*Gonzales \*differently and still maintained judicial consistency? ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [July 27, 2005, 9:02pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/72 "2005-07-27T21:02:57Z")
> [@Dewey Cheatem Undhow](#): > > Not offhand, but then again I am not a strict constructionist because of pithy quotes from Madison, et al. I am a strict constructionist because that position flows from certain first principles, principally notions of consent of the governed. I’m governed, and no one has asked for my consent. Is there any chance of getting back to the topic of Roberts’ lies about his membership? ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 9:17pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/73 "2005-07-27T21:17:35Z")
> [@John Mace](#): > > **spoke** : What do you think of the decision in [_Gonzales v. Raich_](http://en.wikipedia.org/wiki/Gonzales_v._Raich)? Given the constutionality of the Civil Rights act and other precedent (based on the commerce clause interpretation), could the court have decided \*Gonzales \*differently and still maintained judicial consistency? For one thing, I think [Gonzales v. Raich](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1454) demonstrates the hypocrisy of purported states’ rights advocate Scalia. He is in favor of states’ rights just so long as the states are doing the things he wants them to do. And that doesn’t include experimenting with medicinal marijuana. But if you’re asking me whether the federal government has the power under the commerce clause to regulate marijuana, I’d say that it does. And yes, I think the Heart of Atlanta case and subsequent Supreme Court jurisprudence lead to this result. _Should_ the federal government be wasting tax money going after marijuana users (medicinal or not)? Hell no, but that’s a matter to take up with your elected representatives. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 9:20pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/74 "2005-07-27T21:20:58Z")
(Although if you’ll put guys like me on the Supreme Court, we might just decide there’s a fundamental right to use marijuana. Heh.) ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 27, 2005, 9:50pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/75 "2005-07-27T21:50:09Z")
> [@Dewey Cheatem Undhow](#): > > Hell, I’ll expand that to reputable constitutional scholars. To the best of my knowledge, even the giants of living constitutionalism like Tribe and Dworkin have never advocated the ninth as a source of rights. Is [Randy Barnett](http://www.randybarnett.com/) reputable enough? Heck, if memory serves, even some of the Libertarian members of the Federalist Society don’t agree with you on how the Ninth should be interpreted. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 27, 2005, 9:51pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/76 "2005-07-27T21:51:34Z")
> [@spoke-](#): > > For one thing, I think [Gonzales v. Raich](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1454) demonstrates the hypocrisy of purported states’ rights advocate Scalia. He is in favor of states’ rights just so long as the states are doing the things he wants them to do. And that doesn’t include experimenting with medicinal marijuana. So, are you suggesting that we need more principled justiced, like Justice Thomas? 🙂 > [@](#): > > But if you’re asking me whether the federal government has the power under the commerce clause to regulate marijuana, I’d say that it does. And yes, I think the Heart of Atlanta case and subsequent Supreme Court jurisprudence lead to this result. “Regulate marijuana” is a broad term. Does the federal gov’t have the right to tell me I can’t grow it in my back yard, for personal use, even if my state legislature says it’s OK? But what I’m really asking you is if you can accept a strict Federalist approach to the law, such as being advocated by **Dewey** , as being a legitimate school of constitutional interpretation. Are you saying that anyone who holds the view that Dewey has laid out should automatically be barred from the SCOTUS? Because that’s the real issue here. Not whether or not you agree with me, or **Dewey** , or Roberts, but whether you accept that there are various schools of interpretatation, and the school losely referred to by Bush as “strict consrtuctionism” is no less valid than other schools. You may oppose, on political grounds, such candidates, but can you honestly say that a president should be unable to appoint such a candidate if he so chooses? Especially if he explicitly campaigned on the promise to do so… ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 27, 2005, 10:02pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/77 "2005-07-27T22:02:10Z")
> [@John Mace](#): > > “Regulate marijuana” is a broad term. Does the federal gov’t have the right to tell me I can’t grow it in my back yard, for personal use, even if my state legislature says it’s OK? They did, and the Court said that it was constitutional for them to do so. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [July 27, 2005, 10:06pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/78 "2005-07-27T22:06:41Z")
> [@Liberal](#): > > Is there any chance of getting back to the topic of Roberts’ lies about his membership? If his judicial philosophy doesn’t disqualify him, this kind of dishonesty should. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 10:09pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/79 "2005-07-27T22:09:15Z")
> [@John Mace](#): > > Are you saying that anyone who holds the view that Dewey has laid out should automatically be barred from the SCOTUS? Nope. I already said Roberts should be confirmed (absent any startling revelations which call his fitness into question). See post #50. Roberts at least seems to have a judicial temperament, unlike the hotheaded Scalia. I don’t agree with the nominee’s presumed judicial philosophy, but that doesn’t make him unfit to serve. I’m just in here to offer my limited insights as to what Roberts’s judicial philosophy might be (in light of his affiliation with the Federalist Society). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 27, 2005, 10:19pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/80 "2005-07-27T22:19:10Z")
> [@Blalron](#): > > If his judicial philosophy doesn’t disqualify him, this kind of dishonesty should. What kind of dishonest, exactly? [Previous page](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170.md?page=3) [Next page](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170.md?page=5)