Leonard Leo on Theology of Judiciary

on February 15, 2021

Tooley: Hello this is Mark Tooley, president of the Institute on Religion & Democracy here in deserted downtown DC, with the pleasure today of talking to Leonard Leo, a longtime leader within the Federalist Society and former Chair of the U.S. Commission on International Religious Freedom (USCIRF). Leonard Leo has played a prominent role in advocating for a constitutionally faithful judiciary in the United States and has had a major influence in the appointment of judges across America who are faithful to original constitutional principles. Leonard, I should point out, is a believing Roman Catholic. So, there is a spiritual vocation to his work, which, hopefully, he can share with us about. So, thank you, Leonard, for joining us.

Leo: It’s my privilege, thank you. And let me just start by thanking you for your leadership at the institute. You’ve been doing very, very important work engaging in the public debate about the role that religion plays in our society and our democracy, and we’re very grateful for that.

Tooley: We’re grateful to you and I know we have many friends, colleagues, and allies in common across the years, but Leonard, tell us a little bit about the basic background and principles of the Federalist Society for those who are not very familiar.

Leo: Sure, well the Federalist Society was founded in 1982 largely in response to the fact that there was a liberal orthodoxy that had been prevailing in America’s law schools. And the founders of the society believed it was high time to have a spirited debate about bringing our core constitutional principles back to the legal culture and also reviving what we call the structural constitution, the separation of powers, federalism, limited judicial. And that’s how the society started. It started in law schools. And then as students started graduating, we grew the institution to include professional lawyer groups around the country, and the group now boasts a membership of about 70,000 lawyers and law students.

Tooley: And I know you don’t profess to be a trained theologian, but if I could press you in terms of how does the Roman Catholic Church understand the special vocation of the judiciary in terms of upholding justice and equality before the law?

Leo: Well, it’s extremely important that we have the rule of law, and the reason is because that helps to ensure the dignity and worth of every human person. People need to be judged fairly. They need to be held to proper standards of conduct, but those standards of conduct need to be interpreted and enforced equally. And so, I think that there is a rich tradition in the Catholic Church of believing that civil law is one important, and that to the civil law, the institutions that interpret and enforce it are integral to ensuring human dignity, the worth of every person, and, of course, going way back, there was tremendous connectivity between the ecclesiastical traditions of the Catholic Church and the justice systems in countries like England.

Tooley: And, obviously, as you say, the Federalist Society was founded to counteract 20th century influences in terms of having a more evolving understanding of the Constitution, and there seems to be a spirituality behind that in terms of upholding the Constitution and its original intent versus just applying it as we wish by postmodern more liberal standards.

Leo: Law and language have meaning, and the role of a judge and a lawyer is to discern what the legitimate real meaning is behind those words that we call law. And when you ignore the text of the law or you try to go beyond what it’s naturally understood, meaning you’re engaging in a duplicitous enterprise, you’re not faithfully interpreting the law. And that opens up our society to a lot of problems. It can create issues of unequal treatment under the law. It can engender abuse of authority, which in turn can have negative implications for human dignity. And so, it’s very, very important to adhere to the Constitution and laws as they are written and as they were intended to be applied and interpreted.

Tooley: And I think the church would teach, as would most of Christianity, teach that government and the judiciary have a sacred vocation, and yet there are limits that we must protect against that governmental overreach lest it become pernicious.

Leo: We live in a free society, a democracy that’s premised on the idea of limited government. And I think the founders believed that there were two important things that would make that enterprise of limited government work. One is the rule of law, the idea that limitations on government power would be respected and would need to be enforced. And so, when you think about the separation of powers or federalism or checks and balances are limited enumerated powers or bicameralism, the two separate houses of Congress, all of those different structural features of our Constitution, they are in essence ways of ensuring limited government. And the purpose of having those limitations on government power is to protect the dignity and worth of the human person. When you travel around the world, what you find is that countries that don’t have a structural constitution, where they don’t respect it, countries that don’t have these kinds of structural limits on government power tend to have governments that can run roughshod over the worth and dignity of the human person. And the other thing I think the founders recognize is that if you’re going to have a system of limited government, then you’re going to have to create some space for private institutions to do what they do. The family, churches, civic societies, because government isn’t providing everything for everyone. Government has a limited role, so you need to have other institutions that provide the kinds of things, create the kinds of connective tissue, that people need to live, to survive, to prosper. And so, the founders recognize that by ensuring that there would be space available, for example, freedom of religion and religious liberty, so that those civil institutions, the churches, would play a role in the life of our country. And lots of other secular civic institutions as well. And so, that’s the design, and that’s really at the end of the day how our system works. And I think one of the geniuses of that system is if you believe that God has a plan for all of us vocationally, that we have certain talents and skills and we have certain vocations, desires, loves, through our life we search for meaning. We try to figure out what it is that we’re supposed to be doing with those talents and those treasures that we’ve been given. For that enterprise to work, for you to be able to figure out what God has planned for you, for you to figure out what your vocation is, you need to have some space, you need to have some freedom, you need to have some flexibility, you need to be able to chart your course in various ways. And you can’t really do that if you have a heavy-handed overreaching government that has limitless power and a system of government where you can’t discern what powers they have and what freedoms you have. And so, all of this I think is very much tied to the worth and dignity of people. And it’s a system that, of course, protects people of all faiths, but also people who have no faith at all. And I think the founders saw in this design a rich texture that could protect the dignity of all citizens.

Tooley: You mentioned the founders. The year 2020 was not a great year for the founders in terms of how they’re remembered. And they have often been dismissed ofs late as persons who are relics from their day who were oppressive and perhaps their statues should be taken down and their legacies set aside. But I think that we would say that the founders were fallible, sinful people who nonetheless were given wisdom to plug into timeless principles that have as much application today as they did 230 years ago.

Leo: Humans are, by their very nature, weak, frail, capable of virtue as well as vice and folly. That’s been the case since the fall. And it’s not going to stop being the case anytime soon. But what the founders did was they understood that. They understood their weaknesses and their frailties, and they went about trying to create a system of government, as best they could, they went about to try to create a system of government that would put brakes on some of those frailties and weaknesses. Not always and not perfectly, but there isn’t really any system in the world that has worked better than ours in curbing abuse of authority. We’ve had problems in our country, but what has always amazed me about the problems we’ve had in our country, sometimes racial, sometimes socio-economic, what has always amazed me about the problems that our country has faced is not that we have problems. That’s going to happen given human nature. Every country, every society, every civilization has. But we do tend as a country to seem to solve them faster than most other civilizations and societies have. So, I mean, and I think part of that is because we have a system of government that works reasonably well, because it is hardwired to take count of our human weaknesses.

Tooley: Our current era seems to be given over to apocalyptic attitudes and fanaticism, but you seem to offer a sensibility that I will call “Christian realist” in terms of understanding that human nature doesn’t change, and yet we can be hopeful and competent that God is still sovereign and his will will prevail in the end, no matter what fallen humanity may do.

Leo: The problems we’re seeing today, Mark, in politics and in civil discourse, these are problems that have plagued mankind since the beginning. Now they manifest themselves in two different ways. Today’s idols, today’s enemies, today’s controversies are in their particularities different than 100 or 200 or 500 years ago. Different personalities, different kinds of people, different issues confronting society, but the fact of the matter is they’re always really about the same things, which is that there’s a natural human tendency to want to aggrandize and want authority and power over others, for good or ill. I’m not saying people do it for malicious purposes all the time. There’s a natural human tendency to engage in self-interest, maximization sometimes the expense of others. Those are temptations we have because of our fallen human nature that we have to try to overcome. And we all try to overcome those things using our own might or own faith. But it helps to have a constitutional system that points in the right direction and that throws up some guardrails. It certainly makes the problems less serious than they otherwise would be and gives us a little bit of an ability to pick ourselves up from our bootstraps a little bit more easily.

Tooley: Now you’ve been associated with the Federalist Society for going on three decades now. I believe that the society, is it 45 years old?

Leo: I think that’s right, yeah. It was founded in 1982, so that puts us at… 

Tooley: Not quite 40.

Leo: Yeah, about 40.

Tooley: Though founded almost near the zenith of the era of judicial activism, the Federalist Society has had a profound impact on shaping the judiciary. What are some of the big successes that you’ve seen over the last 30 years?

Leo: Well, I think the most important thing the Federalist Society has done is revived an appreciation for the idea that, well two things. One, revived the appreciation for the idea that the structural Constitution matters, right. It’s important to be sure. And we spend a lot of time talking about the Bill of Rights, but when you get down to it, it’s that structural protection our Constitution gives us by limiting and separating and dividing power which really protects our freedom and our dignity. And that’s what the word Constitution means. Constitution means structure, right. I mean, any, as Justice Scalia used to say, any tenure dictator can have a long list of rights. I mean, the Soviet Union had a charter of rights that was I think at least 7 to 10 times larger. Those are mere, ultimately, those are mere parchment barriers. If you don’t have a structural Constitution, if you don’t limit and clearly define the powers of government officials, those rights are meaningless. And you see that all around the world right now. I mean, all sorts of totalitarian dictatorships and countries sign on to the UN Declaration of Human Rights, the International Covenant on Political and Civil Rights, they have their own constitutions which contain very lengthy charters of rights, positive rights, rights to health, rights to food, rights to housing, rights to a fair wage, it’s all meaningless. Because many of those leaders in those countries have boundless, limitless power, and there’s no way of checking it. And there’s no way of calling them to account when they decide they don’t want to pay attention to those rights. So, that’s the game and that’s what the Federalist Society introduced into the discussion. So, the idea that structure matters. And that’s, ultimately, the most important way to protect rights. The other thing that I think is a major achievement is the reintroduction of originalism and textualism. Now those are just highfalutin words for the idea that you interpret the Constitution or a law according to its words as they are naturally and ordinarily understood. Okay, you would think that this would not be a particularly controversial way of doing business in the law, but it is. And it was. But the fact of the matter is we’ve come a long way. I mean, when I first started in this business, oftentimes Supreme Court arguments began with a conversation about what the spirit of the law was, what the spirit of requests, and maybe you got to a parson in the text. Now that’s been flipped on its head. Nobody starts with a discussion about the spirit of the law. They look at the words, structure of a Constitution, and they grapple with its textual and original meaning. And that is a very, very important development, because if you abide by textualism and originalism, you are creating very important limits on the powers of the judiciary and the powers of other government officers in ways that I think ultimately protect freedom and human dignity.

Tooley: And for this to work, to have a sound Constitution and judges who uphold it, you also need habits and beliefs and traditions among the people themselves in support of these concepts, don’t you?

Leo: You do. You need people of honesty, and integrity, prudence. And you need people who are going to live by the cardinal virtues, and you need right judgment. You need to be measured in the way you do your job. You need to demonstrate humility. I think one of the most important qualities a judge can have, other than courage, which is being able to do something that’s right and not be cowered by external pressure, in addition to that important virtue, I think having humility is extremely important. Because you may not like what the political branches did. You may not think that the law they passed was the soundest way to solve a problem. But it’s perfectly constitutional for the political branches to have done it that way. It’s not your business to mess with it. And that takes a lot of humility, because you’re looking straight at something that you think is problematic or wrong, but it’s not unconstitutional. And so, you do need jurists and lawyers who are honest, virtuous people.

Tooley: Leonard Leo, longtime leader in the Federalist Society, former Chair of US Commission on International Religious Freedom, thank you for a very insightful and encouraging conversation.

Leo: Thank you, Mark. Again, thank you for your leadership in providing such great engagement and debate about religion and society over there at the IRD.

Tooley: Thank you.

  1. Comment by David on February 15, 2021 at 2:33 pm

    “And so, it’s very, very important to adhere to the Constitution and laws as they are written and as they were intended to be applied and interpreted.”

    The only reason our Constitution has survived all these years was that it was subject to interpretation very different from its original meaning. Take women. They were certainly not considered “persons” originally Today, they are allowed to vote, but nothing in the document gives them equal rights or the ability to hold public office. Still, no court would deny them equal rights today.

    In 1875, a civil rights act was passed that prohibited racial discrimination in public accomodations. In 1883, the Supreme Court struck down this law leading to a great increase in Jim Crow laws and practices. Under the same Constitution, the court upheld civil rights legislation from the 1960s.

    The comment that the court is merely “politicians in gowns” has more truth than many would like to admit.

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