Vol. 2 No. 11 (November, 1992) pp. 176-178
THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE
DEPARTMENT by Douglas W. Kmiec. New York: Praeger Publishers,
1992. 234 pp.
Reviewed by Reginald S. Sheehan, Department of Political Science,
Michigan State University.
One of the more controversial figures during the Reagan
presidency was Attorney General Edwin Meese III. During his
tenure in the Justice Department Meese underwent intense
criticism from many groups over his jurisprudence which was based
on the doctrine of "original intent." In THE ATTORNEY
GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT, Professor
Kmiec provides us with an account of his years of service in the
Office of Legal Counsel (OLC) under Attorney General Meese and
for a short period later under Richard Thornburgh. The book
provides an inside look at the inner workings of the Justice
Department during this period of time with an emphasis placed on
defending the legal philosophy which governed the decisionmaking
in the department. Readers who are supporters of Ronald Reagan,
Edwin Meese and the legal philosophy they espouse should find the
book intriguing and refreshing. Others may find the book to be
highly partisan and somewhat vindictive toward those who did not
share the philosophical beliefs of the Reagan administration. The
perspective of the reader will determine the extent to which they
find this book enjoyable and interesting. In all fairness to
Professor Kmiec he admits that one of the primary purposes of the
book is to provide a view of the Meese justice department that
has not been distorted by the media and other outside groups.
Overall, the book is well-written and does provide and insightful
narrative of the decisionmaking process in the Meese Justice
Department.
Professor Kmiec served as the principal deputy and later as head
of the OLC from 1985-89. The OLC is the legal firm within the
Justice Department which provides legal advice to the Attorney
General, the President, and others in the Executive branch.
Therefore, as the title of the book suggest, and as Edwin Meese
indicates in the forward, Professor Kmiec was the lawyer to the
Attorney General. This provides Professor Kmiec with a unique
perspective as to the processes and variables that influenced
many of the important and very often controversial decisions that
came out of the Justice Department during this period. Even if
you do not agree with the philosophical substance of the book you
have to appreciate the book's contribution to our understanding
of the processes that were at work.
The tone of the book is set in the very first chapter when Kmiec
attacks the independent counsel law that was passed by Congress.
This is the beginning of a continuing theme throughout the book
which seeks to blame the problems of Attorney General Meese on
political opposition in Congress. The chapter, although it is
short, does a disservice to the book because it hints at a theme
of partisanship and vindictiveness. The book would have been
better served if it began with the second chapter which lays out
the intellectual underpinnings of Meese's judicial philosophy. In
this chapter Kmiec provides a good discussion of the concept of
original intent and critiques other alternatives such as
balancing, noninterpretivism, and neutral principles. Moreover,
the chapter ends with a provocative discussion of the concept of
natural law and how it has evolved in constitutional law. It is
Kmiec's belief that this is a concept that has been overlooked by
practitioners and he criticizes Attorney General Meese for not
relying more on its principles. Kmiec points out that "the
failure to appreciate the natural law background of the
Constitution may well be the undoing of original intent"
(p.40).
Jurisprudence of original intention suggests that one should
interpret a Constitutional provision in a manner that is
consistent with what a consensus of the framers intended in its
passage. Furthermore, if it is not clear what was intended by the
framers then your interpretation should be in a manner that would
approach a literal interpretation of the text. Kmiec argues that
we
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should go beyond this doctrine and recognize that all individuals
have certain "natural rights" that cannot be denied by
any form of positive law. The most obvious right is
self-preservation or the right to exist.
Utilizing the concepts of original intent and natural law
Professor Kmiec devotes the greatest portion of his book to a
discussion of a variety of issue areas that were before the
Justice Department during his tenure. Drawing on his own
recollections and some library and interview research he provides
us with a behind the scenes look at how the Justice Department
decided controversial questions dealing with abortion, school
choice, aids, racial discrimination, and federalism.
In his discussion of abortion, Kmiec argues that the right to an
elective abortion was an invention of the liberal forces in
society. Couching his argument in natural law language he claims
that the unborn fetus is a living human being that has a natural
right to survive. According to Kmiec this is a right which judges
or society have no power to abridge. Tracing the case law that he
found himself enmeshed in during his tenure at OLC, Kmiec
describes the evolution of the legal arguments presented in those
cases. Moreover, he criticizes Solicitor Generals Lee and Fried
for not being aggressive enough in their attacks on ROE v. WADE.
The discussion of Fried is particularly interesting in that Kmiec
suggest that Fried's actions may have been influenced by Lincoln
Caplan's book THE TENTH JUSTICE. Caplan argues that Fried allowed
the office of solicitor general to become highly politicized, a
role that is generally seen as antagonistic toward the
relationship between the solicitor general and the Supreme Court.
Fried's concern over this perception could have been a factor in
his toning down his assault on the abortion issue. Clearly from
his discussion of this issue Professor Kmiec believes that there
could have been an even more forceful attack by the legal forces
of the Reagan administration in the area of abortion.
Similar discussion can be found in the areas of AIDS, pornography
and education. The discussion of education focuses on the
question of parental choice in matters concerning the location of
a child's education. Professor Kmiec lays out the argument for
voucher plans which were supported by the Reagan administration
and Attorney General Meese. The argument is that vouchers would
bring about competition both in the private and public school
systems and thus the end result would be a better educational
system for all children. Kmiec suggests that the reason we have
not seen vouchers is two-fold. The political opposition to
vouchers from the National Education Association has resulted in
very little movement on this issue at the federal or state level.
The National Education Association argues that the "better
students" will leave the public schools and thus what will
remain will be the problem children. Kmiec suggest that this is
an insult to public educators since competition would bring about
better public schools and then those schools would become schools
of choice for many students. The second reason for the failure of
voucher plans to succeed is the constitutional question as to
whether it will promote religion. Kmiec argues extensively that
vouchers do not promote a particular religion. His argument is
based on a literal interpretation (original intent argument) of
the first amendment suggesting that the government cannot sponsor
a religion but just because a religion benefits indirectly from a
state action does not mean that there has been a violation of the
establishment clause. Criticizing much of the case law in this
area, especially LEMON v. KURTZMAN, Kmiec claims that the Court
has been largely confused in this area and has strayed from the
original intention of the founders in adopting the freedom of
religion provisions.
In his chapter entitled "Peace: The Color-blind
society" Professor Kmiec discusses race and how the doctrine
of original intent applies to an issue that continues to be at
the forefront in our society today. Much of the chapter is
devoted to a defense of the head of the civil rights division of
the Justice Department during the Meese years.
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William Bradford Reynolds was heavily criticized for his position
in the BOB JONES case and for later positions on the issue of
voluntariness as opposed to school busing. Kmiec blames the
problems of Reynolds on the "McCarthyism" tactics of
two Democrats and two liberal Republicans in Congress. Although
much of the chapter is spent in defense of Reynolds there is a
lively discussion later in the chapter focusing on affirmative
action in the employment sector. Relying on original intent
Professor Kmiec argues that affirmative action violates the
meaning of the fourteenth amendment as well as the purpose of
Title VII of the Civil Rights Act of 1964. Central to his
argument is that there must be discriminatory intent and not just
discriminatory effect. According to Kmiec, the fundamental point
is that "No one has explained how Congress or the Court can
trump the Constitution. In brief, no one has yet come to grips
with the fact that regardless of what Congress says, or what the
Court says Congress has said, Congress lacks the power to impose
practices that amount to hiring by race" (p.166).
Without summarizing all of the issues covered in this book by
Professor Kmiec, one should be able to surmise from the very
brief synopses of some of his points that the book is very
partisan. In fact the book has a tendency to read like a
commercial for the Republican party. It seemed more than a
coincidence that there is a chapter devoted entirely to the
family and one devoted to ethics. Readers who are not supportive
of these policy views will find the book to be antagonistic and
somewhat vindictive. Reagan and Meese supporters will most likely
heap high praise on the book because its purpose is to "set
the record straight." This is where the major problem lies
for Professor Kmiec's book. It will most likely only appeal to a
select group of readers namely those from the conservative side
of the continuum. This may have been Kmiec's goal but I believe
that the book would serve a better purpose if it could be
utilized by scholars to gain insights into the workings of the
Justice Department. Indeed, I found that much of the discussion,
when it was not highly partisan and defensive, was provocative
and enlightening in terms of the decisionmaking processes that
were at work during this period of time. The problem for many
readers is that they may not remain interested in the book long
enough to benefit from many of Professor Kmiec's insights. It is
important that I reiterate that providing a description of a
legal philosophy and how it applies to specific issue areas is
not where the book has a problem. Rather the problem exists with
the presentation of the material in a form that suggests a bias
against all those who have opposed your policies. There is a
great deal of Congress bashing and press bashing throughout the
manuscript, again reminding the reader of the Republican
campaign. It is my belief that removal of much of the vindicative
language in the book would make it more appealing to a larger
audience and allow it to stand as an academic work.
Copyright 1992