21 February 2016

The False Narratives of Meese, Scalia and Originalism

Recently former Attorney General Ed Meese was interviewed on LPR's Issues Etc. and asked to comment on the death of Supreme Court Justice Antonin Scalia and the coming battle over a replacement for him.

Meese consistently expressed concern for the Constitution, praised Scalia for his stances, values and defense of the document. In addition Meese also identified himself as a devoted Lutheran.

The entire interview was a fraud.

Meese is a criminal and an enemy of both the Church and the US Constitution. These two don't go together but in this case his enmity toward both is all too clear.

Meese seeks to perpetuate the narrative that the Reagan administration and the organisations Meese is affiliated with, the Heritage Foundation and the Hoover Institution are curators of the 'True' American heritage. They are the defenders of the Constitution and the original values of the Republic which Meese would identify as Christian.

It has been argued extensively by this author that such an identification requires a redefinition of what Christianity is, but at present we won't labour this issue.

In one sense they have a point. Maybe they do represent the true America. The United States has never actually stood for the values it claims to uphold. It has always been a great experiment in hypocrisy and self-deception. And thus in one sense the American story is one great lie. The Founding Fathers themselves are complicated and ambiguous and in many ways contradicted the values they themselves purported to uphold.

But in another sense if we take the values and ideas expressed by the Founders then it must be stated plainly that the Right-wing represented by figures like Meese represents a serious departure from the original vision for the Republic.

This seems like a contradictory juxtaposition and it must be admitted that the American Right like many other political orders contains internal self-contradictions and tensions. This is why so many superficial attempts at analysis ultimately fail. Despite this, a genuine picture, narrative and direction can be formed and considered.

Meese expresses his concern for the Constitution and it governing role and authoritative position in the US apparatus. And yet it was Meese and the Reagan administration he served under who openly defied it by conducting operations that were clearly against the laws passed by Congress thus casting aside the power afforded to it in Article I. Meese and those whom he associates with support the notion of the Unitary Executive and the Imperial Presidency. They believe the nature of US power shifted significantly after WWII and ironically they believe the Executive has new powers concerning war and foreign policy that all but 'gut' the Constitution's original construction regarding these points. An argument can be made for this new reality however one cannot make it and hold to Textualist Originalism.

For Meese and the faction he associates with, congress is despised and was clearly ignored and subverted under Reagan. If Meese really was concerned for the Constitution he should have resigned in protest. Instead he aided in cover-ups and ended up profiting very nicely from the whole affair. Rather than revere the Constitution and the institutions it creates, Meese and the Reagan administration seemed to hold it in contempt.

He played a role that we've seen all too often. He was the concerned bureaucrat, the investigator who is actually leading the cover-up. As Attorney General he was forced to 'investigate' when the Iran-Contra story was surfacing. Failing to do so would have exposed the corruption, dereliction and criminality of the administration. But instead of investigating, Meese perhaps more than any other figure facilitated the obstruction of the investigation and enabled the perpetrators to escape accountability. He was by no means alone. There were elements in the Congress who also aided in this process. Their reasons for doing so are not altogether clear though there are many viable and plausible possibilities. Few doubt that corruption runs rampant within the Congress but that's a discussion for another day.

Iran-Contra made Watergate look like child's play and was a scandal of such magnitude that it literally should have provoked a massive Constitutional crisis and brought the entire government down. Meese worked to make sure the scandal went away and by the end, the Justice Department and the subsequent administration made sure that everyone walked away with impunity. He along with some of the key players in the scandal should be in prison. Congress could have brought Meese and others up on charges of contempt, obstruction and conspiracy. Some of the actors were technically guilty of treason. It is arguable as to whether or not Meese would fall into that category. These points have to be argued if one holds to the Originalist position on the US Constitution. Meese was part of a cabal that conspired to deceive and defy the Congress of the United States and in order to pursue what amounted to a de facto coup... aided American enemies.

They did it for the 'good of the country' they would argue. But according to the Constitution it is Congress that has the power to declare war, regulate commerce and therefore plays an essential role in determining just what 'the good' of the country is. Again if one is going to argue for Originalism you cannot ignore the congressional power afforded in the 'foreign' aspect of the commerce clause even though longstanding jurisprudence has done so and has subsumed it under treaty powers.

The Boland Amendment was legal and Iran was already under sanctions and listed as a State Sponsor of Terrorism. The US was effectively in a state of war with Iran at the time of the Iran-Contra weapons shipments. The Tower Commission also revealed that the same players were selling chemical weapons to Iraq. The illegality of the administration's actions cannot be disputed.

Here's an interesting article from 1987 regarding the constitutional basis for the Boland Amendment and its range of applicability. Of course one must ask if the creation of the National Security Council in 1947 was in itself Constitutional or an appropriation of power by the Executive, the first step in creating the constitutionally fictitious paradigm of the Unitary Executive. At the very least it has been used as an illegitimate platform for the creation of a massive extra-constitutional apparatus. Congress in passing the Act undermined and weakened the powers afforded to it in Article I of the Constitution. And yet this is celebrated by the so called Originalists!

As an interesting aside it's noteworthy that in 1951 General Douglas MacArthur provoked a Constitutional crisis by openly challenging President Truman's authority. After being sacked MacArthur appealed to Congress itself. And yet by that time the Unitary Executive/Imperial Presidency was already established. The military and most of Congress stood with Truman and MacArthur's almost coup-like bid for power collapsed. MacArthur and his allies were still holding to the historical notion that Congress had more or less an equal stake in the control of the military. That era had come to an end. MacArthur so keen to capitalise upon the new nuclear era in terms of not only strategy but actual battlefield tactics failed to realise the political implications of both World War II and the nuclear age. MacArthur was literally a dinosaur and the military establishment was (for the most part) pleased with the new freedoms and lack of accountability afforded by the National Security Act.

Even the Arms Export Control Act of 1976 which was meant to limit presidential power and hold the executive accountable to Congress was in the end an abdication of power. It left the prerogative for reporting in the hands of the White House. This simply made it all the more easy for them to cover up proxy wars and the arming of them. The 1976 law despite leading to some convictions has been for the most part a failure and did nothing to curtail the powers of the president.

Rather than Ed Meese facing any kind of charges or even having his name tarred, he like Oliver North has instead had a quite successful and lucrative post-Reagan era career. For Meese this has largely been (at least formally) within Academia. Like many figures of his stature he has a long (and shady) resume with many connections to defense contractors and other sectors of industry. North was humiliated as the 'fall guy' but came out squeaky clean and today is revered by the Right. His 1994 senate bid failed but his post-NSC life has been for the most part a happy and profitable one.

Meese along with Scalia support American Imperialism, covert operations and wars, the formation of death squads and the subversion of Congress to implement these policies.

Both support the notion of the Unitary Executive which clearly exploits if not supplants the 'original' separation of powers as laid out by the Constitution. The Unitary Executive theory not only subverts Congress but it allows the president under 'war powers' to completely suspend the Bill of Rights.

Meese is also considered one of the architects of the 'Signing Statement' wherein a president attaches a statement to legislation expressing the administration's interpretation of it, effectively (in many cases) contradicting the intent of  the law itself or at the very least enhancing executive power or undermining the purpose of the law. It is an appropriation of legislative powers by the president and clearly transgresses the checks and balances outlined in the Constitution.

Meese praises Scalia's Originalism which Scalia used to support the American policy of torturing captured prisoners and accused suspects apart from any notion of due process or obligation to international law and treaties signed by the United States.

Scalia supported indefinite internment, and the various post-9/11 policies and legislation which have destroyed free speech, rights to unwarranted search and seizure, due process and many of the foundational rights that secure democracy and allow it to function.

Scalia worked to suppress voter rights and was widely considered a racist by minority communities in the United States.

Scalia like Meese was corrupt as was displayed in the Citizen's United ruling which completely subverted basic democratic values and opened wide the floodgates for money laundering and corruption.

Meese was already well known when it comes to allegations of corruption. He managed to evade criminal prosecution despite his involvement with some pretty shady military contracting and energy deals. Numerous figures in his Justice Department resigned in protest over his ethics and conduct. The fact that they refused to stand by Meese indicates a great deal about what sort of person he is and how those who knew him and worked with him thought about his integrity.

We can only speculate at this time but we hope that in the future there will be revelations about financial impropriety with regard to Scalia and his unwavering support of the corruption of US politics. There are rumblings and in time they may break out and be revealed.

It must also be mentioned Clarence Thomas is also part of this very corrupt faction within the Supreme Court. At the very least it is evident in the very lucrative relationships his wife has with the Heritage Foundation and other Right-wing organisations. In fact many court critics would point to Thomas as the most blatantly corrupt member of the court and yet few doubt Scalia's part.

It is no great surprise that the Meese Justice Department was happy to look the other way and/or facilitate the Reagan administration's (and the Heritage Foundation's) collaboration with numerous ex-Fascists and war criminals. On many points their ideologies all but overlap both in terms of foreign policy, national narrative and certainly the role of government both in terms of business, war and society. That accusation will shock some readers but the case is easily made.

Scalia's Originalism is something of a legal joke that its adherents obviously don't really believe in. Only the dupes and sycophantic commentators on the Right actually believe in the concept. For Meese and Scalia it's a convenient narrative tool that allows them to start with the premise that their policies are right and then manipulate the Constitution to support them.

I do not think it an exaggeration in the least to suggest that were the Founders alive today they would view men like Meese and Scalia as traitors and worthy of prosecution.

Numerous Evangelical buffoons and pundits like Albert Mohler have written paeans and panegyrics devoted to Scalia and the concept of Originalism. The concept resonates with conservative Christians because they believe that there's a parallel with Biblical exegesis. They believe the Constitution is to be treated like Scripture and that Originalism represents a proper hermeneutic, a Grammatico-historical method for determining the true meaning of the text.

However apart from the theologically idolatrous nature of this position it must be pointed out that civil law doesn't work that way. And there's no basis to treat the Constitution in this manner unless you think it is a divinely inspired 'absolute' text like Scripture. Of course there are not a few Christo-Americanist heretics in Evangelical circles who do indeed believe this. It is quite literally another gospel another testament every bit as dangerous as the claims of Joseph Smith and other cult leaders.

It's ironic that Originalism was birthed by Roman Catholic jurists. Many Dominionists of the Protestant stripe have long lamented the fact that Evangelicals are so far behind when it comes scholarship in some of these realms. They blame the Fundamentalist retreat of the 1920's.

In fact the story is a much longer one and concerns the nature of Protestantism and the cultural changes it effected with the Reformation. Many Conservative Protestants fail to understand the 'liberal' and 'progressive' nature of Protestantism. It may not seem so today but in the Reformation and Post-Reformational context Protestantism as a cultural movement was turning its back on the Middle Ages and looking forward. Unwittingly it opened the epistemological door to the Enlightenment. The US Constitution is a result of these developments.

Originalism's hermeneutic looks like it should have been born of Protestants and thus many resonate with it. But the law itself functions (ironically) much more like Roman Catholic Canon Law. It builds on a basic authoritative structure and is controlled by limiting concepts. However it functions in the realm of context, tradition, precedent and reasoned principle. It's quite complicated as any respectable legal authority will be more than happy to explain.

Originalism is striking due to its almost pedestrian simplicity as well as its iconoclasm. Despising precedent (stare decisis) and context it seeks to sweep away centuries of case and common law. It purports to limit government and the possibility of developing principles and yet it takes certain segments of the Constitution and uses them to massively expand power. It is therefore a patent sham. It interprets the Executive in broad sweeping terms and uses these 'discovered' powers to all but nullify other portions of the Constitution itself.

They can criticise the Warren and Burger courts all they want for the 'found' principle of privacy and yet they are guilty of exercising the very same principle of development and discovery based on context.

Originalism all but destroys the ability to create amendments, itself a problem since the ratification of Constitution involved the immediate creation of the first ten, commonly known as the Bill of Rights. Originalism seeks to treat many amendments as 'unconstitutional'... an untenable and contradictory position. The controversies surrounding the adoption of the Bill of Rights belie Originalism's claims. Originalism can only produce refining or affirming amendments. They can't actually develop anything new which is clearly contrary to the original aims of the Constitution. Article V's temporary restrictions and the nature of ratification indicate the document was never meant to be understood as absolute or permanent.

All that said, attorney Scott Horton recently noted (and rightly) that Scalia's Originalism operated more like a Medieval 'Throne and Altar' type concept of society. Throne and Altar refers to Maistre's theories of state and social authority. Originalism is really about providing a narrative for ultra-conservative authoritarian government... something the Founders would be patently opposed to. In fact the US Constitution was framed explicitly to prevent that type of arrangement.

Echoing Maistre, Bork's paradigm is a cloak for the type of system that closely parallels Francoist Spain and this is the most probable connection between conservative Roman Catholicism and Originalism. Dominion Theology which now dominates American Evangelicals has swept many Protestants down the same path. By restricting semantics to the 18th century they can attempt to destroy many aspects of classical liberalism and the rights it engendered. Originalism is reactionary in the sense that it wishes to undo many social and legal aspects of Enlightenment thought.

There is a great deal of confusion and contradiction on these points because of narratives, counter-narratives and internal contradictions embraced by the various contending factions. In addition Originalists do actually support some aspects of classical liberalism. And yet, it can be argued even these aspects, such as the 'free markets' are in the end subjugated to establishment and national interests. Not a few on the Left and within Libertarian circles would be more than happy to labour this point.

While there were differences between the French and American Revolutions they were close enough ideological cousins to make ultra-conservatives squirm. Do not make the mistake of confusing the Reign of Terror with the original aims and goals of the 1789 Revolution.

Buried in both Ultramontanist and Dominionist concepts of the state is a deep loathing of democracy. Their professed love and patriotic regard for the United States and its declared values is actually subversive and revolutionary. In terms of Modernity they are conservatives and traditionalists. In terms of the framework of the United States they are extreme reactionaries and actually represent what can only be identified as a Counter-Revolutionary position, something the Founders would view as less than patriotic. This does not mean they desire a return to Hanoverian rule but rather the Ancien Regime in general.

The American position in general on the Constitution is worthy of critique and reconsideration. The Americans celebrate the longevity of their Constitution and yet this too is somewhat fictitious. Many countries tear up their Constitutions every so often and revise them. A way to avoid this seemingly instability is to openly embrace the 'living' concept as some nations have done.

The US narrative disallows this practice of revision and re-constitution and yet effectively the country through amendments, policies and a hodge-podge of laws has done this on several occasions. The American legal system is a mess. Originalism creates a framework and narrative for the Right-wing to gain the mastery of it. Scalia, Thomas and now Alito are its chief proponents on the Supreme Court.  

The US Senate recognised that Reagan was seeking to fundamentally change the nature of the court. His administration was the fruition of many forces coming together in the 1970s attempting to turn the tide of American society, undo the 1960s and return to the pre-FDR era. They also wanted to arrest the attempt by Congress to dismantle the Unitary Executive. The Rightward shift on the court under Reagan helped to judicially seal and ratify the many moves by the Executive to reassert that power and laid the groundwork for the massive power-grab undertaken by Bush and the Neoconservatives after 2001.

Scalia was appointed to the court in 1986 but the Senate led by Joe Biden and Ted Kennedy actively rejected the appointment of Robert Bork in 1987. Bork was a step too far and Congress realised what his appointment would mean. Anthony Kennedy the eventual replacement nominee for Bork has proven to be of a more 'Libertarian' stripe and thus on some issues he's quite conservative while at other times he deeply angers conservatives by strictly adhering to the concepts laid out in the Bill of Rights.

Meese's comments strike me as dishonest and fraudulent. Considering the source many of his statements and concerns regarding the Constitution are nothing less than outrageous. The fact that Issues Etc. would regularly invite him on the show as a guest is a source of shame and demonstrates their lack of integrity and/or naiveté. Either way Meese's appearance destroys LPR's integrity. This softball interview which failed to raise a single point of challenge or even raise the possibility of questioning his analysis demonstrates the programme's purpose was not to challenge its listeners to think or learn but to obey and embrace the narrative.

Figures like Meese (and there are many like him), are a badge of shame to the Christians that have bought into their erroneous and heretical ideas and have both morally and financially supported them. Meese represents a heretical form of Christianity that is riddled with idols and what can only be described as evil ethics.

Even from a secular perspective Meese can rightly be reckoned a criminal and an enemy to the ideals that America (supposedly) stands for. At the same time he's but another agent of the long-running lie that is the American Empire. Either way he must be reckoned at the very least a miscreant but in reality is little more than a rascal.

Finally many readers who make it this far will decry my opinions as 'liberal' and Leftist. Meese and Scalia have also played a part in creating the false dichotomy that dominates the US political narrative. I can criticise figures like Meese and Scalia while at the same time reject the agenda of the Left wing. As Christians we ought to be able to step back and look at the issues in a different light.

Rejecting Meese and Scalia is in no way an endorsement of abortion or Sodomy. We are committed to doctrinal truth, historical veracity and Christian antithesis. It is the sub-Christian lust for political power that has led so many down this path that attempts to build the Kingdom of God through subterfuge, manipulation and violence. It is the worship of mammon and power that drives them to live by Consequentialist ethics. They think we can engage in evil and bring about good.

The end result is not the Kingdom of God but the Tower of Babel crowned by a cheap cross.

On the one hand as a Biblically minded Christian I don't care about the legitimate heritage of the American Babylon. I don't venerate the Founding Fathers or democracy for that matter. I don't make an idol out of the Constitution or treat it as some kind of deutero-canonical or semi-inspired authority.

But even for the sake of argument if I put myself in the shoes of those that do, then Meese and Scalia are still corrupters and enemies.

As a Christian I repudiate the whole American project and both the Left and Right of the political spectrum. But Meese and Scalia are worthy of special condemnation. They profess to be Christians and like it or not their ideas and influence have greatly affected the American Church.

Scalia was an evil man and Meese continues to be so. They have earned the praise and esteem of many and yet they are abomination in the sight of God.


Here's the link to the actual interview. The first segment is largely fluff. I take issue with virtually everything said but especially during the latter and more substantial part of the interview. This article obviously elaborates many of these points and goes beyond the scope of what is actually said.

Further Reading:

This recent example demonstrates the complexity of law and the nature of context and precedent and it can be also argued that such an example demonstrates some of the flaws of the Originalist mindset.

And here's a brief sample of many available articles pointing to Meese's role in Iran-Contra.