Sophist Originalism: The Fraud at the Heart of the Federalist Society

Author's Note: The terms Madisonian originalism and Sophist originalism are introduced here for the first time. I am developing this work for submission to academic law review as a contribution to constitutional legal theory. You are welcome to use these terms, share them, and build on them. Please attribute them.

Additional author's note: this article is long. It took restraint not to immediately start writing an entire book on the subject. Though that may still happen.

This article is for every American. Attorneys, constitutional scholars, and the person who has never opened a law book in their life all have an equal stake in what this article describes, because what is being done to the Constitution is being done to all of us.

You do not need a degree to understand it. You need the receipts, and we have them.

In 1987, Robert Bork sat before the Senate Judiciary Committee seeking confirmation to the Supreme Court of the United States. Bork was the leading intellectual architect of a legal philosophy called originalism, which holds that the Constitution means exactly what its framers intended it to mean, nothing more and nothing less, and that judges who stray from that original intent are imposing their own values on the law.

He presented this philosophy as an act of restraint, of fidelity, of humility before the text. Then a senator asked him about the Ninth Amendment.

The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Bork said he could not enforce it. He said it was, in his word, an "inkblot," and that if you covered part of the Constitution and could not read it, you could not make up what it said. He compared one of the ten amendments in the Bill of Rights to a smudge on a page.¹

James Madison wrote the Ninth Amendment. He wrote it specifically because he recognized that listing some rights would cause future generations to assume the list was exhaustive, and he said so, in writing, on the floor of Congress. In his own handwritten notes from that day, he described what those retained rights were in three words: "natural rights, retained."

The text is unambiguous. The intent is unambiguous.

Bork looked at Madison's own amendment, written in Madison's own hand for Madison's own stated purpose, and said he could not read it. This is the first example of Sophist originalism: a method of constitutional interpretation that starts at a predetermined conclusion and builds the argument backward, invoking the founders' authority while ignoring the founders' actual words.

The Federalist Society calls themselves originalists. They say they are faithfully reading the Constitution as the founders intended. But when you actually read what Madison wrote, his words directly contradict nearly everything the Federalist Society argues for. So either Madison was not an originalist, which is absurd, or the Federalist Society is not actually doing what they claim to be doing.

There are two things being called originalism, and they are opposites. One is reading the text and the founders' actual words honestly and following them wherever they lead. The other is deciding what you want the Constitution to mean and then selectively pulling founding-era evidence to support that conclusion while ignoring everything that contradicts it.

The first one is what Madison was doing. The second one is what the Federalist Society is doing.

Calling them both originalism has protected the Federalist Society for fifty years because it made their project look like scholarship. This article splits the category, gives each half its own name, and makes the fraud visible. We are not anti-originalist. We are saying the Federalist Society is not originalist. Madisonian originalism is the real thing. Sophist originalism is the counterfeit wearing its name. You could also call it progressive originalism, if you want to make Brett Kavanaugh cry.

Twenty-five hundred years ago in Athens, a class of professional teachers arose who called themselves Sophists. They traveled from city to city charging wealthy families substantial sums to teach their sons a single skill: how to win arguments. Not how to find the truth, not how to reason carefully toward an honest conclusion, but how to win. For the right price, a Sophist could construct a persuasive case for any position, true or false, just or unjust. Protagoras, the most famous of them, boasted openly that his method could "make the weaker argument the stronger," and Aristotle said he was rightly condemned for it.²

Plato spent much of his life drawing the distinction between the Sophist and the philosopher. The philosopher follows the argument wherever it leads, even when the destination is uncomfortable, even when the conclusion costs him something. The Sophist starts at the destination and builds the argument backward. In Plato's dialogue the Gorgias, Socrates describes rhetoric, the Sophist's primary tool, as a form of flattery: it gives audiences what feels persuasive rather than what is true, the same way a cook gives people what tastes good rather than what nourishes them.³ The Sophist Thrasymachus put it plainly: "Justice is the advantage of the stronger." Legal and moral frameworks exist to serve power, and the job of the skilled rhetorician is to dress that service in the language of principle.⁴

We are not reaching back to ancient Athens for decoration. The founders were classically educated men who knew this tradition intimately, and when they built a system of separated powers and enumerated rights, they built it specifically to prevent the Thrasymachus problem: the capture of legal authority by those with enough wealth and power to bend it to their purposes. Madison warned in Federalist No. 10 that factions, especially those organized around concentrated wealth, represented the primary threat to republican government.⁵ The question they spent their lives trying to answer was how to build institutions resistant to the Sophist's art.

The Federalist Society answered that question by perfecting it.

On August 23, 1971, a corporate lawyer named Lewis Powell sent a confidential memorandum to the United States Chamber of Commerce. Powell sat on the boards of tobacco companies and other large corporations, and two months later, Richard Nixon nominated him to the Supreme Court. The memo, titled "Attack on American Free Enterprise System," was a war plan, not a philosophical treatise. Powell identified the courts as a critical theater of operations precisely because courts operate outside the reach of electoral accountability; if you could control who sat on the bench and what legal theories they accepted as legitimate, you could reshape constitutional law without winning a single election. He wrote: "Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort."⁶

When Meese took office in 1985, legal scholars Steven Calabresi and Gary Lawson, themselves sympathetic to the originalist project, later documented that originalism was at that moment "essentially unknown to the legal academy and almost wholly absent from the judicial process."⁷ Originalism was not recovered from the founding era; it was manufactured in the years between Powell's memo and Reagan's election.

Edwin Meese III, Reagan's Attorney General, delivered the movement's founding declaration to the American Bar Association on July 9, 1985. He called for "a Jurisprudence of Original Intention" and defined the target explicitly: the Warren Court's expansions of civil liberties and civil rights. He described those expansions as "a threat to the notion of limited but energetic government."⁸ The Warren Court had desegregated public schools, guaranteed equal voting representation, and protected contraception, and Meese was announcing a legal project to reverse those outcomes, dressed in the language of constitutional fidelity.

The institutional vehicle was the Federalist Society, founded at Yale Law School on April 23, 1982, with initial funding from the John M. Olin Foundation, the Scaife Foundation, the Bradley Foundation, and Koch family foundations.⁹ By 2017, the organization had seventy thousand lawyer members, chapters at every accredited law school in the country, and twenty million dollars in annual revenue. As of early 2020, forty-three of fifty-one Trump appellate court nominees were current or former members, and five sitting Supreme Court justices have organizational ties to it.¹⁰ Political scientist Amanda Hollis-Brusky documented how the Society promoted "constitutional theories that had previously been dismissed as ludicrously radical."¹¹ Johns Hopkins scholar Steven Teles called it "without a doubt, the most vigorous, durable, and well-ordered organization to emerge from modern conservatism's political strategy."¹² Stanford historian Jonathan Gienapp concluded in 2024 that the entire project is "a contrived modern legal fiction" in which originalists "project their own understandings" onto the founding era rather than recovering anything from it.¹³

Sophist originalism was never a scholarly movement or a recovery of founding-era principles. It was built with oligarch money to take away the rights of the general public and place the rich, the powerful, and their corporations above the law. They wrapped it in the language of constitutional fidelity for the same reason the pre-Reformation Catholic Church kept the Bible in Latin: because a text the public cannot read is a text the powerful can say anything about.

Remember the image at the top of this article. It's the Federalist Society logo. Do you know who the man is in silhouette on the that logo? He's a founding father who spent decades warning that corporations are at best a necessary evil and that concentrated wealth is the primary threat to republican government. That man was James Madison.

James Madison was the principal author of the Constitution and the Bill of Rights. He kept detailed notes of the Constitutional Convention, wrote or co-wrote the Federalist Papers, and corresponded for decades with Jefferson, Hamilton, and the leading thinkers of his era about the meaning of the document he had done more than anyone to create. His record is extensive, his views are clear, and they contradict the Federalist Society's claimed originalism at nearly every significant point. What that faithful reading of Madison actually produces is Madisonian originalism: a Constitution deeply hostile to corporate power, genuinely protective of unenumerated rights, and structurally concerned with economic inequality.

On concentrated wealth and factions, Madison wrote in Federalist No. 10 that "the most common and durable source of factions has been the various and unequal distribution of property," and rather than celebrating the propertied class, he identified concentrated wealth as the faction whose interests most reliably conflicted with "the permanent and aggregate interests of the community."⁵ On redistribution, he wrote in the National Gazette in 1792 that the object of good government should be laws that "reduce extreme wealth towards a state of mediocrity, and raise extreme indigence towards a state of comfort."¹⁴ No Federalist Society originalist has ever reckoned honestly with that passage.

On corporations, Madison was explicit and consistent across decades. "Monopolies are sacrifices of the many to the few," he wrote to Jefferson in 1788.¹⁵ "Incorporated Companies… are at best a necessary evil only," he wrote to James K. Paulding in 1827.¹⁶ In his Detached Memoranda: "The power of all corporations, ought to be limited… The growing wealth acquired by them never fails to be a source of abuses."¹⁷ The man whose name the Federalist Society evokes spent his life warning that corporations accumulate wealth, abuse power, and require strict legal restraint.

On the Ninth Amendment, Madison introduced the precursor language to Congress on June 8, 1789, explaining that listing specific rights would cause future generations to assume the list was complete. He built it as a structural guarantee that the Bill of Rights was a floor, not a ceiling.¹⁸ Randy Barnett, a libertarian constitutional scholar at Georgetown, spent his career demonstrating what it actually means: "The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before."¹⁹

Unenumerated rights are rights you have that are not written down in a list: your right to marry who you love, your right to use contraception, your right to move freely between states. Your right to vote is not explicitly guaranteed anywhere in the constitutional text; the document only says the government cannot deny it on specific grounds like race or sex. Your right to not be defrauded or exploited by corporations has no constitutional text behind it, which is exactly why the Court keeps stripping the regulatory agencies meant to protect it. None of these appear anywhere in the constitutional text as affirmative guarantees, but courts recognized them for generations because the Ninth Amendment made clear the list was never meant to be exhaustive. Madison understood something practical: no list written in 1789 could anticipate every right a human being would need to live freely in every century that followed. The Ninth Amendment exists because you have more rights than anyone could write down, and a government that only recognizes the rights it explicitly granted you holds all the power. The founders refused to build that government.

On constitutional interpretation itself, Madison rejected the idea that the framers' subjective intent should bind future generations. He wrote: "As the instrument came from them, it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions."²⁰ He believed constitutional meaning was settled by the people, not frozen by the men who drafted it.

That Constitution does not exist in the Federalist Society's jurisprudence, because the Federalist Society did not build its theory from Madison's writings; it built its theory from Powell's memo and Meese's speeches, and worked backward to find the historical evidence it needed. The gap between the two is not theoretical. You can measure it in specific cases, specific rights, and specific people.

When the Court dismantles unenumerated rights, it is not correcting an error; it is taking something away from you that you already had. Dobbs reached beyond abortion. The Court announced that any right not explicitly named in the text is now something it could take away. Contraception could be next, and marriage equality could be next. Justice Clarence Thomas said so himself in his Dobbs concurrence, explicitly calling on the Court to overturn the decisions protecting both.²¹

The Fourth Amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The language is absolute. The founding-era context is James Otis's 1761 speech against British writs of assistance, general warrants that let officials enter any home without specific cause, and John Adams called that speech the moment American independence was born.²²

Here is what the Supreme Court did with that absolute language. In 1968, it created "stop and frisk," allowing police to detain people on vague suspicion rather than probable cause.²³ In 1984, it created the "good faith exception," allowing evidence from illegal searches into court if officers claimed good intentions.²⁴ In 1996, in a unanimous decision joined by every justice including the liberals, it ruled that pretextual traffic stops are constitutional because virtually every driver commits some minor violation at some point.²⁵ In 2016, it ruled that evidence from an illegal stop is admissible if the officer discovers a pre-existing warrant during the stop; given that millions of Americans have outstanding warrants for minor offenses, this gave police a legal pathway to search almost anyone at almost any time.²⁶

Justice Sonia Sotomayor wrote in her dissent: "We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere."²⁶ The Fourth Amendment says searches shall not be violated, and the Court has spent sixty years finding creative ways to violate them. Akhil Reed Amar, a Yale constitutional scholar and self-described originalist, called the Fourth Amendment today "an embarrassment," and he reached that conclusion honestly, by reading the text.²⁷

The Ninth Amendment story is simpler. Madison wrote it, he explained what it meant, and Bork called it an inkblot. The Federalist Society built its jurisprudence on that dismissal. In Dobbs v. Jackson Women's Health Organization, the Supreme Court's majority cited Sir Matthew Hale, a seventeenth-century jurist who presided over witch trials and established the doctrine that a husband cannot be prosecuted for raping his wife, more than a dozen times as constitutional authority.²¹ The American Historical Association and the Organization of American Historians filed a brief explaining that the majority's historical claims were wrong, that pre-quickening abortion was legal under common law, and that the push to criminalize it arose from Victorian nativism and sexism. The majority dismissed the historians and kept Matthew Hale.²⁸

Citizens United v. FEC in 2010 extended First Amendment political speech rights to corporations, overturning a century of campaign finance law. Justice John Paul Stevens, in a ninety-page dissent, wrote: "The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind."²⁹ Madison called corporations "at best a necessary evil," and the Court gave them the same speech rights as citizens. Chief Justice Leo Strine of the Delaware Supreme Court and legal scholar Nicholas Walter concluded their academic analysis with a finding that belongs in every civics class in America: "Citizens United is far more original than originalist."³⁰

The Sophist's art, Thrasymachus's argument made flesh: justice as the advantage of the stronger, dressed in the language of constitutional fidelity, enforced from the highest bench in the country.

Before this article, there was one thing called originalism. This article splits it into its two actual components and names them precisely, because the fraud inside the single category was invisible so long as it had only one name.

Here's a way of picturing the moment we currently live in. This nation was founded to cast away a demon. The demon has many names across history: aristocracy, the lawless haves and their serfs, tyranny. The founders knew it intimately, and they built the Constitution as an exorcism.

What we are doing now is naming the form the demon has taken in our time, because you cannot cast out what you cannot name. Name it and you can find the tools; forge the tools and you can cast it out. You cannot kill it, but you can send it away until a generation passes and people forget again.

The last time we cast out the demon we called it The American Revolution. This time we can call it the American Reformation. The country that comes out the other side will look different because it must.

And if you do nothing else, remember that education exorcises fascism.

If you're looking for educational materials you can check out The Existentialist Republics 4 pieces of model legislation for fighting fascism, 12 booklets that answer the “what do we do?” Questions, and 3 full length books, all available for free at BuyMeACoffee.com/TheEr

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Works Cited

1. Bork, R. H. (1987). Statement before the Senate Committee on the Judiciary. In Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearing Before the Committee on the Judiciary, 100th Cong. 249.

2. Aristotle. (ca. 350 BCE). Rhetoric (W. R. Roberts, Trans.). Oxford University Press.

3. Plato. (ca. 380 BCE). Gorgias (B. Jowett, Trans.). MIT Internet Classics Archive. https://classics.mit.edu/Plato/gorgias.html

4. Plato. (ca. 375 BCE). Republic (P. Shorey, Trans.). Harvard University Press.

5. Madison, J. (1788). Federalist No. 10. In A. Hamilton, J. Madison, & J. Jay, The Federalist Papers. Signet Classics.

6. Powell, L. F., Jr. (1971, August 23). Confidential memorandum: Attack on American free enterprise system. Lewis F. Powell Jr. Papers, Washington and Lee University School of Law. https://scholarlycommons.law.wlu.edu/powellmemo/1/

7. Calabresi, S. G., & Lawson, G. (2024). The Meese Revolution: The making of a constitutional moment. Encounter Books.

8. Meese, E., III. (1985, July 9). Speech to the American Bar Association. U.S. Department of Justice. https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf

9. Philanthropy Roundtable. (n.d.). Birth of the Federalist Society. https://www.philanthropyroundtable.org/almanac/birth-of-the-federalist-society/

10. Yale Daily News. (2024, November 4). How the Federalist Society shaped America's judiciary. https://yaledailynews.com/blog/2024/11/04/how-the-federalist-society-shaped-americas-judiciary/

11. Hollis-Brusky, A. (2015). Ideas with consequences: The Federalist Society and the conservative counterrevolution. Oxford University Press.

12. Teles, S. M. (2008). The rise of the conservative legal movement: The battle for control of the law. Princeton University Press.

13. Gienapp, J. (2024). Against constitutional originalism: A historical critique. Yale University Press.

14. Madison, J. (1792, March 27). Property. National Gazette. Founders Online, National Archives. https://founders.archives.gov/documents/Madison/01-14-02-0238

15. Madison, J. (1788, October 17). Letter to Thomas Jefferson. Founders Online, National Archives. https://founders.archives.gov/documents/Jefferson/01-14-02-0018

16. Madison, J. (1827, March 10). Letter to James K. Paulding. Founders Online, National Archives. https://founders.archives.gov/documents/Madison/04-04-02-0304

17. Madison, J. (ca. 1820). Detached memoranda. Founders Online, National Archives. https://founders.archives.gov/documents/Madison/04-01-02-0549

18. Madison, J. (1789, June 8). Speech introducing the Bill of Rights. Annals of Congress, 1st Cong., 1st Sess.

19. Barnett, R. E. (2013). Restoring the lost constitution: The presumption of liberty. Princeton University Press. (Original work published 2004)

20. Madison, J. (1796, April 6). Jay's Treaty. Founders Online, National Archives. https://founders.archives.gov/documents/Madison/01-16-02-0195

21. Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022).

22. Adams, J. (1817, March 29). Letter to William Tudor. In C. F. Adams (Ed.), The works of John Adams (Vol. 10). Little, Brown.

23. Terry v. Ohio, 392 U.S. 1 (1968).

24. United States v. Leon, 468 U.S. 897 (1984).

25. Whren v. United States, 517 U.S. 806 (1996).

26. Utah v. Strieff, 579 U.S. 232 (2016).

27. Amar, A. R. (1994). Fourth amendment first principles. Harvard Law Review, 107(4), 757–819.

28. American Historical Association & Organization of American Historians. (2021). Brief of amici curiae historians in Dobbs v. Jackson Women's Health Organization (No. 19-1392).

29. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

30. Strine, L. E., Jr., & Walter, N. (2016). Originalist or original: The difficulties of reconciling Citizens United with corporate law history. Notre Dame Law Review, 91(3), 877–950.