The Key to Understanding the Federalist Society Isn’t Originalism — It’s This 800-Year Old Tradition

Supreme Court justice and natural law proponent Neil Gorsuch. Image: George W. Bush Center/Flickr (CC BY-NC-ND 2.0)

In the amicus brief he submitted to the Supreme Court on behalf of the state of Mississippi in the Dobbs v. Jackson Women’s Health case that overturned Roe v. Wade, John Eastman of the Claremont Institute anchored a “foundational right to life … to the founding era claim that the life protected by natural law (and thus the Constitution) includes the life of the unborn child.”

It is by now widely known that the Federalist Society is the wellspring of originalist jurisprudence and legal conservatism in the United States. After flying for decades under the radar, the Federalist Society’s role in the selection of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to fill Supreme Court openings during the presidency of Donald Trump elevated its profile, putting it squarely on the media’s map.

What’s less well known—by pretty much everyone who isn’t part of the legal conservative movement—is that the Society is also hip-deep in Catholic natural law political theology. Indeed, natural law—not originalism—is the key to understanding the litigation strategies of Federalist Society attorneys, the substantive jurisprudence of Federalist Society judges, and the political goals of the legal conservative movement itself. 

If the original meaning of the text of the Constitution frames and structures the law for Federalist Society members, natural law is the pre-political moral order that lies beneath the floorboards.

With its moral anthropology of a divinely ordered “human nature” and its commitment to morally distinctive notions of “human dignity” and “human flourishing,” Catholic natural law—an 800-year-old tradition dating back to Thomas Aquinas—is a lens that offers utter clarity to conservative Catholic jurists, activists, policymakers, and scholars as they observe, describe, and engage the world. The power and sharpness of this lens allow them to confidently snap every human movement—every human desire and motive and act—into its divinely appointed and proper place.

Legal conservatism was originally imagined as a libertarian bastion of the limited state and free markets. Since the early 1990s, however, as anti-abortion protests and violence helped spur an alliance between traditionalist Catholics and evangelical Protestants, which in turn catalyzed the Republican Party, legal conservatism has increasingly inhabited the landscapes and language of religious conservatives. 

At this intersection between legal and religious conservatism, the natural law tradition—with its rubric of rights and wrongs and moral absolutes on matters of sexuality, reproduction, marriage, the family, education, and religious freedom—has exercised enormous influence upon the membership of the Federalist Society.

The three most right-wing justices on the Supreme Court—Clarence Thomas, Neil Gorsuch, and Samuel Alito—are adherents of natural law moral philosophy.

During his Senate confirmation hearings in 1991, Clarence Thomas weathered critical questioning about how his natural law commitments to Declarationism—a contentious philosophy propounded by natural law theorists Harry Jaffa and Hadley Arkes which subordinates the Constitution to a higher moral law—would influence his jurisprudence.

Gorsuch received a doctorate in philosophy, studying at Oxford University under the renowned and controversial philosopher of the “new natural law,” John Finnis. Two years later based on his dissertation he published a book about assisted suicide from the premises of natural law theory.

When he repeatedly invoked the term “ordered liberty” in the majority opinion he wrote for Dobbs, Samuel Alito used natural law ideas and language that echoed many of the amicus briefs submitted to the Court by a broad range of conservative legal and policy organizations.

Natural law has always been hiding in plain sight. Rusty Reno, the editor of First Things magazine, said as much when he half-facetiously wrote the following, in response to my 2021 New Republic article on originalism and natural law:

[Schwartz] singles out First Things (“the most intellectually serious and influential journal of the religious right”) as particularly nefarious, leading the way toward (this will shock readers) a politics informed by natural law. I’m happy to endorse his warnings to those on the left.

Despite this frank acknowledgement by Catholic conservatives, a vast gap exists in popular and academic understanding of these religious and theological foundations of the legal conservative movement.

High-profile articles about the Federalist Society and legal conservatism in the New Yorker, the Washington Post and Politico make no mention of natural law. Among scholars, Pomona College professor Amanda Hollis-Brusky has published well-regarded studies of the Federalist Society and of Christian conservative legal organizations. But particularly in her book on the Federalist Society, Hollis-Brusky misses out on a major part of the story. While “originalism” receives significant attention there isn’t a single mention of “natural law.” 

As one would expect, the term “originalism” (and its cognate, “textualism”) peppers the Federalist Society website, with nearly 1,000 references associated with Federalist Society events, videos, and publications. What one might be more surprised to discover, however, is that a search for “natural law” and related substantive matters such as “religious freedom” outpaces “originalism” with more than 1,000 mentions.

Recent law school lectures sponsored by the Federalist Society include University of Toledo law professor Lee Strang making the case for a “natural law argument for originalism” at Ave Maria Law School; NYU law professor Richard Epstein speaking on natural law theory at the Federalist Society chapter of Florida International Law School; and Princeton’s ubiquitous Robby George talking about “Natural Law, God, and Human Dignity” at the Federalist Society chapter of Columbia University Law School.

The Federalist Society never takes official positions on matters of jurisprudence and legal reasoning. It never participates in court proceedings, submits no amicus briefs and never serves as legal counsel. Which leads to the insistent claims of legal conservatives that the organization and its originalist methods are politically and substantively neutral. Of course, there’s more than a little bait-and-switch in these claims.

From its inception, the official mission of the Federalist Society has been educational, not political. The Federalist Society supports chapters at more than 200 American law schools and features student, lawyer, and faculty divisions. The student division includes more than 10,000 law students, while the lawyer division comprises more than 65,000 practicing attorneys in ninety cities.

Framed slightly differently, the Federalist Society is explicitly an organization devoted to ideas—to the ideas associated with American federalism and originalism, to be sure, but also to ideas associated, more broadly speaking, with history, religion, morality, and philosophy. What we might call “civilizational” ideas.

As the natural-law-minded will say, the Federalist Society is a “pre-political” community, one derived from “self-evident” moral and religious truths that brook no compromise. The Federalist Society is pre-political (but definitely not nonpolitical) because the purpose of the organization is to nourish and establish within law students, in the infancy of their professional careers, the intellectual preconditions for future political and legal activity premised firmly on these “civilizational” values. 

What we discover beneath the floorboards, then, are the beams and joists of a systematic moral philosophy and theology fostered in Federalist Society law school chapters and in allied student-focused “fellowships” such as those sponsored by the Claremont Institute and the Alliance Defending Freedom. This philosophy has for decades guided the elaborate machinations of the legal conservative movement as it has systematically, and quite successfully, worked to dismantle the secular liberal foundations of American law and jurisprudence in place since the New Deal.

Ultimately, we need to ask how it’s been so easy for the Federalist Society to gull the nation for so long and with such ease. The answer probably lies in the “historical innocence” of Americans about which Alexis de Tocqueville wrote in Democracy in America. With no feudal past to constrain us, with Protestantism and the Enlightenment the beginning of our history, we’re often blind to political and legal activity within our own nation that doesn’t conform to liberal democratic precepts.

Like the android host Dolores in the first season of Westworld, when presented by her father with a photo of a smiling woman in an alien urban landscape, we also can only say, when confronted with tangible illustrations of this counter-Reformation insurgency: “Doesn’t look like anything to me.”

But the intellectual roots of conservative culture-war Catholicism are theological and medieval, the product of a cosmology organized around hierarchy, inequality, authority and power, with commitments and anchors to traditions and values that aren’t confined—and are in many instances opposed—to liberal democratic traditions and democratic values.

We don’t see conservative Catholics. But conservative Catholics see us.