Originalist Constitutional Interpretative Theory And Judicial Nihilism

”The denial of reason in the classical sense is antihuman because it is antidivine.”—Paul Tillich, Systematic Theology,Vol. 1, p. 72.

Since Supreme Court Justice Lewis F. Powell authored the “The Powell Memo” to the U.S. Chamber of Commerce Education Committee on August 23, 1971 there has been a highly organized effort to dismantle the American State by a faction of corporations and well-financed think tanks. For the last fifty years Neo-Liberalism has injected the poison of Originalist Textualism into the fount of American Democracy—the US Constitution. I want to closely examine the concealed ideologies and ultimate goal of Originalist Judicial Theory.

My analytical approach will be in the tradition of Critical Theory focusing on propaganda, hermeneutics, and epistemology. There are two meanings of “critique” used in Critical Theory: 1.) Critique focused on the conditions for the possibility of knowledge. 2.) Critique as examining systems of constraint. We have extensively discussed a Neo-Kantian critique of knowledge using the concept of ideological paradigms. The critique of systems of constraint can include all ideologies, including ideology itself.

Sociological propaganda

To identify propaganda is not an easy task, but analysis of propaganda can reveal how it works and expose the subordinated ideologies and concealed epistemological assumptions delivered in seemingly simple, and not so simple, slogans, doctrines, and opinions. Philosopher Jacques Ellul defines propaganda in his book, Propaganda: The Formation of Men’s Attitudes, (1965) as “… a set of methods employed by an organized group that wants to bring about the active or passive participation in its actions of a mass of individuals, psychologically unified through psychological manipulations and incorporated in an organization.” To “organized,” “unify,” and “incorporate” are key concepts of how propaganda begins its work on the oblivious propagandee.

Assuming the propagandee is unintelligent must to be rejected: persons most susceptible to propaganda are the highly educated that monitor media, current events, and who believe they have immunity to propaganda influence. Thinking propaganda is easily detectable and crudely simple exposes one to possible unconscious manipulation. There are various types, or functions, of propaganda that operate in areas not typically thought to be in the sphere of propaganda.

Ellul makes a distinction between two general types of political propaganda: 1.) Agitation propaganda and 2.) Sociological propaganda. Agitation propaganda is what most people think of when they hear the word propaganda. It is the kind of propaganda characteristic of elections and campaigns that seek immediate limited results for some specific short-term goal. The politician who, for example, agitates for revolt using pamphlets, speeches, posters and rumor is utilizing political “Agitation propaganda.” Also referred to as “Agitprop,” it is very energetic, but short in duration. Agitprop is relatively simple to disseminate and is inexpensive. Agitation propaganda is sometimes referred to as “vertical propaganda” since it originates from the top directed downward.

On the other hand, “Sociological propaganda” is the opposite in many ways and is typically not seen as propaganda because of its passivity, low profile, and directed to achieve long-term goals. Sociological propaganda is also known as “horizontal propaganda.” However, sociological propaganda requires a large communications infrastructure, many organized participants--and it is very expensive. Its long-term goal is not to agitate, but to integrate and include:

”…the group of manifestations by which any society seeks to integrate the maximum number of individuals into itself, to unify its members’ behavior according to a pattern, to spread its style of life abroad, and thus to impose itself on other groups. We call this phenomenon “sociological” propaganda, to show first of all, that the entire group, consciously or not, expresses itself in this fashion; and to indicate, secondly, that its influence aims much more at a entire style of life than at opinions or even one particular course of behavior”(Ibid., p.62).

Sociological propaganda functions as “integration propaganda.” Integration propaganda is designed to persuade persons to think and act in certain desired patterns. Its goal is conformity by individuals and uniformity of society as a whole by establishing shared stereotypes, beliefs, and group reactions. In many ways, integration propaganda is the antithesis of agitprop. Integration of persons ensures stable behavior, reshapes thought and action by unifying, remolding the person, and reinforcing group relations. This type of propaganda is much more complex requiring long term planning for permanent--not temporary--effect. Thus, it is subtle, if not invisible, acting slowly and gradually assimilating the total persona. Integration propaganda is most effective with the highly educated. Rationalization, not wild emotion, is the primary function of integrating propaganda. Whereas agitprop only requires leaflets, posters, and rumor to trigger mob violence, integration propaganda must have the communication infrastructure of mass media and the State. Integration propaganda appears in film, education, literature, social service, and non-political organizations that are not ordinarily categorized as propagandist by the average person. In order for propaganda to be effective, it must encompass the entire life of the propagandee:

”Alongside the mass media of communications, propaganda employs censorship, legal texts, proposed legislation, international conferences, and so forth—thus introducing elements seemingly alien to propaganda…. The judicial apparatus is also utilized…during a trial…the judge is forced to demonstrate a lesson for the education of the public: verdicts are educational”(Ibid., pp. 12-14).

A judicial system itself can act as a platform for propaganda.

With such total saturation of society with propaganda from government and non-government groups, the propagandee suffers from various psychological effects. There are two effects that may explain the indifference we see by the average person to the substantial changes of our system of government and laws. First is “mithridatization” in which the propagandee ignores the intellectual content of propaganda, but continues to obey its rules:

”It is known that under the effect of propaganda the individual gradually closes up. Having suffered too many propaganda shocks, he becomes accustomed and insensitive to them. He no longer looks at posters; to him they are just splashes of color.... Nevertheless, this same individual continues to turn on his radio and buy his newspaper. He is mithridatized…but only to the objective and intellectual content of propaganda…He knows their ideological content in advance and that it would change none of his attitudes…He is deeply imbued with the symbols of propaganda; he is entirely dominated and manipulated”(Ibid., pp. 12-14).

A second psychological effect of propaganda is “privatization” which is “…the feeling that leads man to consider his private affairs as most important and produces skepticism toward the activities of the State.” Propaganda can either encourage privatization, or discourage it depending whether the government wants to encourage participation in affairs of the State such as warfare, or if necessary, to discourage resistance to the State:

”…One aspect of privatization propaganda by the State seems to us even more important: when it creates a situation in which the State has a free hand because the citizenry is totally uninterested in political matters. One of the most remarkable weapons of the authoritarian State is propaganda that neutralizes and paralyzes its opponents…by reiterating a simple set of “truths” such as that the exercise of political power is very complex, and must therefore be left to professional politicians….”(Ibid., p. 192).

Those uninteresting “very complex” issues include constitutional laws and the balance of powers in government. One writer made the comparison between political life and a vast ocean. On the ocean’s surface are the waves, wind, and turmoil, but deep below the surface are vast currents that move slowly and massively, but are undisturbed by the chaos above. Likewise, American politics is active with elections, campaigns, symbolic acts, and partisan conflicts. These events capture our attention and give the impression of change and progress, but these do not change the forces beneath the surface where real power is working to determine the State’s direction.

Sociological propaganda conceals the application of legal theories of Originalism that are used today in constitutional jurisprudence interpretation. The courtroom is also the propagandist’s podium. Legal theories based on an epistemology of totalitarianism will have a predetermined outcome for legal decisions and a built in methodological bias for identifying what are the issues of the day.

The question of Constitutional interpretation is only a symptom of a systemic problem in American society. Originalism is consistent with a governmental system that only uses democratic concepts as slogans or an advertising brand. The American government is at its heart totalitarian and makes use of propaganda just as any totalitarian government. Jacques Ellul argues that no democratic government can use propaganda effectively without becoming totalitarian itself because propaganda is inherently totalitarian. The effect of propaganda on democracy “is comparable to radium and what happens to the radiologists is well known” (Ibid., p. 242).