June 09, 2004,
EDITOR'S NOTE: This piece is the cover story in the June 14, 2004, issue of National Review.
There's a story Eliot Spitzer likes to tell about the Federalist Society. Spitzer had started to make a name for himself as an aggressive and activist attorney general for New York, and the conservative legal group invited him to speak. Spitzer told the group that he too was a federalist: Conservatives had cut the federal government down to size; that devolution of power, he said, had freed him to sue the tobacco companies. The conservatives, he says, were "ashen." Sometimes he adds that he was not received graciously.
Spitzer's story does not hold up in all particulars. Leonard Leo, the executive vice president of the Federalist Society, says, "He was not greeted stonily. He has a wildly different recollection of his one appearance than anyone else who was in attendance." Leo says the society has invited him back.
The underlying point of Spitzer's story, however, is true. A generation of conservative rhetoric about federalism and states' rights has made the political culture receptive to state-level activism. And nobody better embodies the new legal activism of the state attorneys general than Eliot Spitzer. Nor does anyone better illustrate the damage that activism is doing to our form of government. If conservatives are going to resist that activism, as they should, they will have to rethink some of their slogans.
Spitzer now cuts a large figure. He is feared on Wall Street, loved by the press, and considered a strong candidate for governor in 2006. But he almost didn't make it into public office. After Princeton, Harvard Law, and a brief stint at a law firm, Spitzer went to work fighting the mob for the Manhattan district attorney's office. In 1994, he ran for attorney general and placed fourth out of four in the Democratic primary. In 1998, he spent even more of his father's real-estate millions to unseat the incumbent Republican. This time, he won barely. The recount went on for six weeks.