How a Communist Idiot Antonin Scalia was Able to Fool Everyone (Morrison v. Olson)

Antonin Scalia tricked everyone (including himself), by not directly saying what he was wrong about. And by hiding it beyond all kinds of crap which Scalia and other people so much wanted to believe he was smart enough to be right about, that other people thought his crap judicial approach to figuring out what the law was, was actually his reasons. Scalia’s dicovery of a tool or act, that vaguely worked by coincidence to get the result he wanted, was not his real reasons. The tool did not dictate the result, the result dictated the tool. His real reasons were simply that he’s a communist.

Scalia created a moving ghost of a judicial theory as a smokescreen, tricking even himself the way Cotton Mather proved to himself the rampant existence of witches. And waved it in front of his opponents like a bullfighter, so that they charged to where he wasn’t. What Scalia was wrong about was not what people who disagreed with him were saying he was wrong about, his law interpretations. Because Scalia didn’t himself know what he was wrong about, meaning where the real debate was.

Antonin Scalia was a communist, who really believed in the power of a single mind to enact “the will of the people”. With voters as the eyes, the President as the mind, and local government employees as the hands. Scalia was able to conceal that he was a complete idiot, by speaking in mushy abstractions, and never clearly articulating what was going on in his mind that his individual bits of reasoning were acting in service of. (The contents of Scalia’s mind were too much confused mush to be rigorously expressed and criticized.)

Scalia was celebrated because of the end result of his decisions, which was to promote a utopian communist executive. Which is always popular. Scalia was not celebrated because the details of his reasons made sense. Quite the opposite, it is because Scalia’s actual reasoning was such nonsensical mush, that he was able to smuggle his communist policies past people. By distracting them with his dumb details of the reasons he gave, rather than saying “the reason I am doing this is to create a utopian communist executive”.

Scalia in his Morrison v. Olson dissent asserts two ridiculous things:
1) That a list of preferences written by a legislative majority, is conceptually interchangeable with a single human actor.
2) That it’s possible for a single person to run the whole government from a single vantage point.

Scalia then says that if in this imaginary cartoon one person was running the government, and if another person (the legislature) attacked him, then neither person would be running the government. Or the second person would be. Or who even knows, because it’s an impossible nonsensical idea that can’t actually be pictured.

The reason this ridiculous idea was never confronted, is because Scalia himself was so confused about how government even works, that he never clearly articulated what he believed, and how it led to his decisions. And because the people who disagreed with him accepted this false idea that a single person can control all of government. They just disagreed that law designs that. And disagreed they wanted that, because Scalia thought that person would do good and his opponents thought that person would do evil.

Let’s take a moment to look at how government actually works. What the “separation of powers” does is delegate an individual to represent the preferences of a committee upon local circumstances. And also send a separate person – “the judicial branch” – to independently verify that the individual delegate is representing the preferences of the committee and not his own. And because a legislature (or a list of legislation) has preferences in many areas, many delegates are needed. (Such as in both foreign affairs and criminal prosecution, in France, England, Cleveland, and Kentucky.)

The (legislature) committee ultimately just produces a list of preferences. This written list cannot execute or enforce the preferences, only a person can. A list cannot monitor whether that first actual person is executing the preferences, a second actual person called a judge can (or a court acting on a petition to enforce the law). No one person can do too many things, much less a committee. A committee that runs around and tries to do random things the same as a President, can only do a limited set of things effectively. That’s why the Continental Congress created a President and other secretaries.

The end goal is to execute the list of preferences written as legislation. (Even if all the legislators died, or did something else all day.) If the preferences could execute themselves, without needing human hands or a monitor of those hands, there would be nothing unjust or tyrannical about it. (For example, every person would be in prison exactly as the law specifies.) Legislators can’t use their own hands to apply those preferences to millions of instances of local circumstances. But if they did, it would not be unjust.

The problem is not that a legislature doing whatever gets a supermajority vote is unjust. It’s not that a list that “concentrated” both powers, a) of being writing on paper and b) doing things, would create tyranny. It’s that it’s not practical for a committee to actually do things by interacting with the world in real time, rather than in theory. And it’s not even possible for writing on paper to do things. The reason we have local prosecutors (and judges) is not to stop laws from being unjust. We have these other “branches” (actor and monitor) because neither writing on paper nor a single committee can prosecute thousands of people all over the map. Or make sure actual prosecutors follow the law.

We can have thousands of local government employees to act upon local circumstances. But all the local people who can act upon local circumstances, don’t do useful things unless guided by legislation, and monitored to make sure that they are. It’s not the human actor being “separate” from the list that makes it just. It’s the human actor following the list that makes his action just. Which again, a committee (or an old list) as a practical matter is not nimble and local enough to accomplish.

We add hands not to create something “separate” from the list or committee, but because we need local hands. If a list cannot do things, we need something separate from it that can.

Scalia starts his dissent in Morrison v. Olson, by recounting this inescapable reality (of needing doers and monitors) as observed by legislators in Massachusetts. Who observed that a written list of laws can’t execute themselves upon local circumstances, or monitor their execution. Scalia quoted them saying “the legislative department shall never exercise the executive and judicial powers, or either of them”.

Notice that the word “department” begins to throw out the details of reality, to say a legislature (the list and the individual people) is just a nondescript “department”. All the various activities of individual legislators and old papers, just became a single mind. In a moment this will be used to say a legislature has the same properties as a monarch, because they are both “departments”.

Scalia then makes the jump to saying that committees not being able to enforce and monitor laws all over map is not an inescapable reality, but “the absolutely central guarantee of a just government”. That’s not what anybody said, and they are crazy idiots if they did. Scalia is talking about a monarch, as the “department” which must have powers separated to not be tyrannical.

Scalia jumps to something completely different which Madison said in Federalist 47, that a person doing whatever he wants, rather than serving laws and being monitored in courts to make sure that he serves laws, doesn’t do anything useful. Laws being unable to execute themselves is not “the guarantee of a just government”. Actual humans being forced and confined to execute laws is the guarantee of a just government.

Madison is just saying that a human actor on his own not following the list or being monitored, doesn’t do anything just. Nobody had ever had a problem with a legislative super-majority being unjust, but with a king and local strongmen being unjust. Nobody ever had a problem with a prosecutor enforcing legislation on another person, monitored by a court, being unjust.

A legislature and a monarch are not simply two conceptually interchangeable “departments”. A “concentration of powers” in a legislature is not the same thing as a concentration of powers in a monarch, which is what everyone is talking about.

But Scalia is so mushy, his peers didn’t get into all this. They just said “the constitution doesn’t say what you’re saying.” But that leaves Scalia thinking he was right. Because he knows what the constitution means, hidden deep in his crazy confused mind behind these little arguments. And Scalia’s peers also leave Scalia’s flock thinking Scalia has found that there really is a communist autocrat in some sacred scrolls.

Scalia conflated the executive branch and local prosecutors as a single mind. And conflated Congress as a list of laws, as the committee that adds to the list, and as elected congressmen who do things other than write laws, as a single mind. Scalia was able to imagine government employees acting against the President were acting as part of a competing collective-mind “department”. Even though they’re not actually writing legislation. And Scalia’s opponents let him fluidly invent forces and dynamics of the interactions between these vaguely-imagined single objects, to support a result.

The fact that the legislature simultaneously is somehow used to create some kind of independent prosecutors to prosecute the prosecutors is a coincidence. The fact that people who add new items to the list is the same people who investigate and petition for investigations of people who work for the government, is just a convenient coincidence. What they have in common is they’re both elected, so that we don’t have to elect two committees or sets of delegates. And to the extent they’re in the same party and work in the same building, they share common interests.

The sense of human actors being separate from written legislation, and the sense of whether prosecutors are all part of a single mind, and whether people engaged in prosecution are part of a competing single mind which is the legislature, even though they’re not actually writing legislation, enabled Scalia to lead his opponents into a thicket. Trying to project some sort of simple physical rules onto powerful people playing complicated games, became a great spot to insert communism by saying this guy should win. But camouflaging it behind some crazy thing that would confuse Scalia’s opponents forever, trying to find an abstract rule in it to beat Scalia’s claimed abstract rule.

Now that Scalia had two collective minds that nobody would untangle, he had to endow one with magical powers. To set up his logic that attacking those powers is bad.

Does a President have special capabilities? It’s impractical for a committee to even try to do much of anything, in the thousands of local places where things need to be done. Or to try to directly monitor and control the local government employees who do things, without the middleman of courts and laws. Local government employees doing whatever they want is also a disaster (basically just local wars). And a monarch even trying to control all the local actors (without laws and local courts), is also a disaster. For being almost as impractical as for a legislature to try to directly control all of them. Before the monarch even gets to ignoring law.

The President is different from the list of legislation. But is he really that different from any other government employee, like a cop or a legislator? Is the President an abstract branch of government, a “department” like the legislature? Or is he just a person with a small social circle trying to do things. Does the fact that we imagine the President as different make him different? Or are we imagining (and trying to create) an unrealistic world. With an entity that can’t really as a practical matter be as different as we imagine he can.

The idea that the independent counsel is not accountable the way the President is, relies on a false cartoon of accountability through the “unitary executive” “chain of dependence” that doesn’t actually exist.

It’s only when you begin with the false imagination that the entire government can run through the President, or that you should try for it to, that the independent counsel interferes with what you imagine you are doing (and disastrously try to do). Otherwise, you realize the independent counsel is just prosecuting a single official, not “the executive branch”. The way any prosecutor prosecutes another person who is doing his own things, taking care of his own business.

It’s the same idea as prosecuting the Ambassador to Chile. The President has more duties and responsibilities than the ambassador to Chile. But saying he has so many powers that prosecuting him or his supposed employee ruins government, already ruins government the moment you incorrectly imagine he can have so many powers or should. You’re not prosecuting God, and if you try to have a government run by God, you’ve got bigger problems.

When one prosecutor prosecutes another person in the executive branch — another government employee — he’s not prosecuting the single mind of God. It’s fair to say the President is big and unique enough, that prosecuting him creates problems. But to say that prosecuting some other officer attacks the President or his supposed universal control, relies on some sort of incorrect assumption of a single mind.

By falsely attributing some sort of all-knowing character to the President, you also overestimate the power or effect of the person prosecuting him (or his supposed direct employee). People may think the President can singlehandedly see and administrate all of government. And in fact as a practical matter under current law, the President may be able to step in and interfere wherever he wants. And the media may like talking to him. It’s fun (and also disastrous) for everyone to pretend and imagine the President is running everything through this conversation.

But the President is hobbled by the unworkable nature of this God-scheme, before the independent counsel can hobble him. As seen with the current President Trump, who flounders around in a series of endeavors he is unqualified to meddle in, from tariffs to improvements of parks and monuments. (This is a generic story, in every nation where everyone is always disappointed in their leader.)

Neither the authority to prosecute people, nor any other function in a specific domain or region, is given to “the executive branch”, but to a local domain expert. By harassing the President you are not harassing these functions, and by harassing these functions you are not harassing the President. Except to the extent the President has an ill-advised power to meddle in everything, and put on a theater for a media mob while doing it. Which theater for a mob is not any kind of functional government, and cannot effectively determine and implement useful policy details in specific areas.

The President is not the supervisor of every local prosecution. And pretending he can be, becomes a disaster long before the special counsel supposedly interferes with something it’s not practical to do in the first place.

Yes, the Founders thought (and feared) that the President would be powerful. But no plan, desire, or imagination, can change the smallness of what functions the President can actually do well. This is the actual objection to a king, not that he violates the constitution, but that he doesn’t do what he does well. People didn’t like monarchy because it became impractical and produced worse results, regardless whether law calls for it or not. Law responds to practical realities.

Scalia really believed the Constitution created this communist autocrat. Though necessarily in a mushy confused way because it doesn’t. All doubt was pushed aside, by pointing to elections every four years as completely transforming and curing the character of this autocrat. So you have a single mind, and it’s not a communist autocrat but something magical by the magic of being elected every four years. And then after that tiny piece of logical assertion, it’s all sophistry and confusion.

I don’t know why Scalia thought a legislature was needed. Maybe to list the things that individuals outside government could be prosecuted for. Maybe to legislate the process required before the unitary mind could take away individual liberty. But Scalia spent his life arguing that individual liberty could also be decided by a single will without process. (Which necessitates that the will happens to like and dislike the same things as legislation. And exempting businesses and money which Scalia thinks need to be protected from the collective will.)

The reason Scalia was able to get away with this, why the incredible stupidity and confusion of what he really believed was never confronted, is because of two things:
1) Scalia’s opponents basically accepted the idea a collective mind could supervise the government through the President, but with a few modifications.
2) All the crap Scalia pieced together was too screwed up to reveal what he believed, or any coherent set of beliefs and create a coherent attack surface.

Attempting to trace Scalia’s reasons as the cause of his decisions was backwards. He imagined a single mind in the President, and he tried to explain that out of what legislation actually says. There was an intermediate step where he got really confused as to what he was even talking about, making it impossible for anyone else to know. Whether Scalia’s reasons passed as making enough sense, depended on whether you wanted the same thing. But if his reasons didn’t make sense, people said “your reasons don’t make sense”. Not “stop inventing crazy crap to get a communist executive”.

Scalia’s reasons were mush and sophistry passable to idiots who also wanted a utopian executive. And his reasoning was so bad that by arguing with it, you could only end up arguing with a ghost. Instead of just saying “don’t make up random crap to promote a utopian communist executive.” Like Scalia could say “The Constitution says we have a President to do good, and therefore he should be able to do whatever he wants.” His opponents would scratch their heads about the logic of that and where it says that. And people who want a utopian communist executive would quote him as a genius.

People who are confused and have no idea what they’re talking about, will grab onto the first thing with any semblance of logic, like a lifejacket in the ocean. If you also want a utopian executive and from there your thinking goes downhill, where you are confused how government even works and lost trying to argue that the Constitution says this, whatever crap Scalia is able to come with really is impressive. Compared to your own efforts to say anything to explain it all. Scalia had an inventory of clever quotes the average idiot never heard before.

There was nothing coherent for Scalia’s opponents to see, so they attacked small local bits. Like simply saying that “the unitary executive” is more than the actual text of the constitution will bear. Rather than saying “this is all nonsense”. Rather than saying there is no single mind, and everything else Scalia says is mush and sophistry.

When Scalia starts saying that Madison said the guarantee of justice is that “the legislature department” (legislation? some legislators?) can’t have too much power, nobody thinks to respond “you’re a communist”. Behind Scalia’s logic, is this idea in his mind that the President needs to operate as a single mind and Congress can’t interfere with him. But Scalia doesn’t know how to express that in hard details, nobody does. Because it can’t be rigorously explained in the physical world. And so Scalia resorts to some mumbo-jumbo about what Madison once said. And that is what people end up arguing with or accepting, never getting to the root of the problem.

They knew Scalia was wrong, but they didn’t know why. Confused people can’t attack brazen idiotic liars.