Wednesday, August 11, 2010
But to lawyers, especially constitutional lawyers, the absence of “controlling precedent” means something very different: that courts, preeminently the Supreme Court of the United States, writes on a clean slate; that there is no prior decision which requires the same result in a new case.
This is very important today because of a question just beginning to boil in the public arena: the meaning of six words in Section 1 of the Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” [My emphasis.]
The constitutional question is whether so-called “anchor babies”—children of illegal aliens, overwhelmingly Mexican, reportedly some 60,000 annually in Texas alone—are “subject to the jurisdiction thereof” and thus automatically citizens of the United States.
It is believed—but erroneously—that the Supreme Court has answered this question affirmatively.
It has not, even though many lawyers and commentators believe it has.
They cite to the Supreme Court case of Plyler v. Doe, decided in 1982.
The question of whether the children of illegal aliens were “subject to the jurisdiction” of the United States under Section 1 of the 14th Amendment, and thus citizens, was not even before the Court in the Plyler case.
How do I know?
Because Justice Brennan, author of the majority opinion in Plyer said so:
“The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.” [My emphasis.]
In Brennan’s Opinion’s infamous footnote 10—relied on by the “anchor babies are citizens” crowd—he admitted that the Court had never ruled on the meaning of “subject to the jurisdiction thereof” as it may pertain to the America-born children of illegal aliens.
But a small problem like that wouldn’t stop Brennan. Undeterred by the absence of any precedent, the High Priest of the Living Constitution slipped into his opinion’s footnote 10 the gratuitous statement that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
Who asked him?
No “anchor babies” were before the court. The “jurisdiction” question as to them was not before the Court. The Court had, by his own admission, never addressed the question.
This means that constitutionally the “anchor baby-citizenship question is wide open. And a smartly designed statute to define and deny the citizenship status of anchor babies would eventually have to be evaluated by the Supreme Court.
Despite the incompetent, agenda-driven progressives Obama is seating on the High Court, good lawyering might, just might, relieve the American body politic of the heavy, unwanted and constitutionally unnecessary burden of anchor babies— and remove from them the precious American citizenship they do not deserve.
Friday, June 25, 2010
Important, unanswered questions remain about that war.
Did Stalin use North Korean Communist Kim Il-sung as a pawn to draw Mao Zedong into a war against the United States, thereby preventing a rapprochement between China and America?
Did Truman and Acheson, in order to arouse Congress and the American people from their post-World War II torpor, bait North Korea into attacking, by deliberately defining South Korea as outside the United States' defense perimeter and starving the South's military?
Did the Soviet Union contrive to be absent from the U.N. Security Council when it voted to send MacArthur's Eighth Army north of the 38th Parallel, headed for the Yalu River and on the other side Chinese Manchuria?
Was MacArthur both militarily correct and morally right when he sought to bomb Yalu River bridges and Manchurian hydroelectric plants?
Was MacArthur personally responsible for Chinese intervention, or was Mao's entry into the Korean War not a foregone conclusion and thus an institutional misfortune rather than any one individual's fault?
There are many other such questions, but rarely does anyone today ask, let alone answer, them.
Indeed, all day today I searched the Internet for essays by prominent American commentators at least mentioning the Korean War, and found virtually nothing. Today, our local paper had an editorial supporting the recent idea of making V-J Day a national holiday, commemorating the end of World War II. But not a word about the Korean War.
Yet, proportionally more Americans were killed during the three years of the Korean War than in all the years of the Vietnam War.
Journalist Clay Blair famously entitled his book about that conflict The Forgotten War.
Sadly, it's an apt title. And, in a way, also an apt epitaph--not just for the Americans who died there, but for our country's institutional memory of how, once, now long ago, we stood up to forces of darkness in an effort to destroy them.
Tuesday, May 25, 2010
No human being could fail to be deeply moved by such a tribute as this, coming from a profession I have served so long and a people I have loved so well. It fills me with an emotion I cannot express. But this [Thayer] award is not intended primarily to honor a personality, but to symbolize a great moral code — the code of conduct and chivalry of those who guard this beloved land of culture and ancient descent. That is the animation of this medallion. For all eyes and for all time, it is an expression of the ethics of the American soldier. That I should be integrated in this way with so noble an ideal, arouses a sense of pride and yet of humility which will be with me always.
“Duty, Honor, Country” — those three hallowed words reverently dictate what you ought to be, what you can be, what you will be. They are your rallying point to build courage when courage seems to fail, to regain faith when there seems to be little cause for faith, to create hope when hope becomes forlorn.
Unhappily, I possess neither that eloquence of diction, that poetry of imagination, nor that brilliance of metaphor to tell you all that they mean.
The unbelievers will say they are but words, but a slogan, but a flamboyant phrase. Every pedant, every demagogue, every cynic, every hypocrite, every troublemaker, and, I am sorry to say, some others of an entirely different character, will try to downgrade them even to the extent of mockery and ridicule.
But these are some of the things they do. They build your basic character. They mold you for your future roles as the custodians of the nation's defense. They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid.
They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for action; not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm, but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future, yet never neglect the past; to be serious, yet never take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength.
They give you a temper of the will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, an appetite for adventure over love of ease.
They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life. They teach you in this way to be an officer and a gentleman.
And what sort of soldiers are those you are to lead? Are they reliable? Are they brave? Are they capable of victory?
Their story is known to all of you. It is the story of the American man at arms. My estimate of him was formed on the battlefield many, many years ago, and has never changed. I regarded him then, as I regard him now, as one of the world's noblest figures; not only as one of the finest military characters, but also as one of the most stainless.
His name and fame are the birthright of every American citizen. In his youth and strength, his love and loyalty, he gave all that mortality can give. He needs no eulogy from me, or from any other man. He has written his own history and written it in red on his enemy's breast.
But when I think of his patience under adversity, of his courage under fire, and of his modesty in victory, I am filled with an emotion of admiration I cannot put into words. He belongs to history as furnishing one of the greatest examples of successful patriotism. He belongs to posterity as the instructor of future generations in the principles of liberty and freedom. He belongs to the present, to us, by his virtues and by his achievements.
In twenty campaigns, on a hundred battlefields, around a thousand campfires, I have witnessed that enduring fortitude, that patriotic self-abnegation, and that invincible determination which have carved his statue in the hearts of his people. From one end of the world to the other, he has drained deep the chalice of courage.
As I listened to those songs, in memory's eye I could see those staggering columns of the First World War, bending under soggy packs on many a weary march, from dripping dusk to drizzling dawn, slogging ankle-deep through the mire of shell-pocked roads, to form grimly for the attack, blue-lipped, covered with sludge and mud, chilled by the wind and rain, driving home to their objective, and for many, to the judgment seat of God.
I do not know the dignity of their birth, but I do know the glory of their death. They died unquestioning, uncomplaining, with faith in their hearts, and on their lips the hope that we would go on to victory.
Always for them: Duty, Honor, Country. Always their blood, and sweat, and tears, as we sought the way and the light and the truth. And twenty years after, on the other side of the globe, again the filth of dirty foxholes, the stench of ghostly trenches, the slime of dripping dugouts, those broiling suns of relentless heat, those torrential rains of devastating storms, the loneliness and utter desolation of jungle trails, the bitterness of long separation of those they loved and cherished, the deadly pestilence of tropical disease, the horror of stricken areas of war.
Their resolute and determined defense, their swift and sure attack, their indomitable purpose, their complete and decisive victory — always victory, always through the bloody haze of their last reverberating shot, the vision of gaunt, ghastly men, reverently following your password of Duty, Honor, Country.
The code which those words perpetuate embraces the highest moral law and will stand the test of any ethics or philosophies ever promoted for the uplift of mankind. Its requirements are for the things that are right, and its restraints are from the things that are wrong. The soldier, above all other men, is required to practice the greatest act of religious training: sacrifice. In battle and in the face of danger and death, he disposes those divine attributes which his Maker gave when he created man in His own image. No physical courage and no brute instinct can take the place of the divine help which alone can sustain him. However hard the incidents of war may be, the soldier who is called upon to offer and to give his life for his country is the noblest development of mankind.
You now face a new world, a world of change. The thrust into outer space of the satellite spheres and missiles mark a beginning of another epoch in the long story of mankind. In the five or more billions of years the scientists tell us it has taken to form the earth, in the three or more billion years of development of the human race, there has never been a more abrupt or staggering evolution. We deal now, not with things of this world alone, but with the illimitable distances and as yet unfathomed mysteries of the universe. We are reaching out for a new and boundless frontier. We speak in strange terms: of harnessing the cosmic energy; of making winds and tides work for us; of creating unheard synthetic materials to supplement or even replace our old standard basics; to purify sea water for our drink; of mining the ocean floors for new fields of wealth and food; of disease preventatives to expand life into the hundreds of years; of controlling the weather for a more equitable distribution of heat and cold, of rain and shine; of spaceships to the Moon; of the primary target in war, no longer limited to the armed forces of an enemy, but instead to include his civil populations; of ultimate conflict between a united human race and the sinister forces of some other planetary galaxy; of such dreams and fantasies as to make life the most exciting of all time.
And through all this welter of change and development your mission remains fixed, determined, inviolable. It is to win our wars. Everything else in your professional career is but corollary to this vital dedication. All other public purposes, all other public projects, all other public needs, great or small, will find others for their accomplishment; but you are the ones who are trained to fight. Yours is the profession of arms, the will to win, the sure knowledge that in war there is no substitute for victory, that if you lose, the Nation will be destroyed, that the very obsession of your public service must be Duty, Honor, Country.
Others will debate the controversial issues, national and international, which divide men's minds. But serene, calm, aloof, you stand as the Nation's war guardians, as its lifeguards from the raging tides of international conflict, as its gladiators in the arena of battle. For a century and a half you have defended, guarded and protected its hallowed traditions of liberty and freedom, of right and justice. Let civilian voices argue the merits or demerits of our processes of government: whether our strength is being sapped by deficit financing indulged in too long, by federal paternalism grown too mighty, by power groups grown too arrogant, by politics grown too corrupt, by crime grown too rampant, by morals grown too low, by taxes grown too high, by extremists grown too violent; whether our personal liberties are as firm and complete as they should be; these great national problems are not for your professional participation or military solution. Your guidepost stands out like a tenfold beacon in the night: Duty, Honor, Country.
You are the leaven which binds together the entire fabric of our national system of defense. From your ranks come the great captains who hold the Nation's destiny in their hands the moment the war tocsin sounds.
The Long Gray Line has never failed us. Were you to do so, a million ghosts in olive drab, in brown khaki, in blue and gray, would rise from their white crosses, thundering those magic words: Duty, Honor, Country.
This does not mean that you are warmongers. On the contrary, the soldier above all other people prays for peace, for he must suffer and bear the deepest wounds and scars of war. But always in our ears ring the ominous words of Plato, that wisest of all philosophers: "Only the dead have seen the end of war."
The shadows are lengthening for me. The twilight is here. My days of old have vanished — tone and tint. They have gone glimmering through the dreams of things that were. Their memory is one of wondrous beauty, watered by tears and coaxed and caressed by the smiles of yesterday. I listen then, but with thirsty ear, for the witching melody of faint bugles blowing reveille, of far drums beating the long roll. In my dreams I hear again the crash of guns, the rattle of musketry, the strange, mournful mutter of the battlefield. But in the evening of my memory always I come back to West Point. Always there echoes and re-echoes: Duty, Honor, Country.
Today marks my final roll call with you. But I want you to know that when I cross the river, my last conscious thoughts will be of the Corps, and the Corps, and the Corps.
Thursday, May 20, 2010
The Blumenthal flap resulted in the Times' request for my brief comment on the phenomenon of "Fake Warriors" (a term Erika Holzer and I coined), which appeared yesterday in the newspaper. That comment has in turn resulted in many requests for information about our book Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service.
Here is its Table of Contents:
1. The Fake Warriors, Revealed.
2. Harmful Consequences Of Fake Warrior Conduct.
3. The “How” Of Fake Warrior Conduct.
4. Identifying And Exposing Fake Warriors.
5. The “Why” Of Fake Warrior Conduct.
6. Punishing Fake Warriors.
A. National Personnel Records Center Form 180:
How To Use It To Obtain Military Records.
B. Official List of U.S. Civilian and Military
Prisoners of War Who Escaped Captivity
During the Vietnam War.
C. Official List Of All U.S. Civilian And Selected
Foreign National Prisoners Of War Who
Escaped During, Who Were Released During,
And Who Were Repatriated At The
Conclusion Of, The Vietnam War.
D. Combined List Of All Military Prisoners Of
War Who Escaped During, Who Were Released
During, And Who Were Repatriated At The
Conclusion Of, The Vietnam War.
E. Official List Of Vietnam War Medal Of
About the Authors.
Wednesday, May 19, 2010
Craving the Right CredentialsI use the term fake warrior, to describe a person, overwhelmingly male, who lies about having had military service or, having served, embellishes his record.
Lying about military service is an easy way for an elected official to be seen as tough, disciplined and patriotic.
There are many psychological, social and cultural questions that this pervasive syndrome raises, but the most challenging one is: Why do public officials, who are highly visible and easily discredited people, lie about their military service? After all, it’s not just Richard Blumenthal who got caught falsely claiming that he had served in Vietnam. Policemen, councilmen, presidential candidates, congressmen, state legislators and superintendents have all been found to be fake warriors.
The reasons for lying are varied and reflect a wide range of human psychology. Obvious motives among ordinary citizens include financial gain, loneliness, a desire for notoriety, even comradeship.
But in the case of public officials, there is something else — something that stems from a need peculiar to their circumstances. Whether a policeman or presidential candidate — or a state attorney general, seeking a Senate seat — they all want to be seen (whether they are or not) as tough, disciplined and patriotic.
Those characteristics inhere in no calling more than the military, which is why public official fake warriors don’t claim to have invented a cure for gout or once caught the largest shark. Instead, they almost always fictionalize their military service.
Henry Mark Holzer, a professor emeritus at Brooklyn Law School, is the co-author of “Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service.”
Tuesday, May 18, 2010
Fake Warriors lays bare a national scandal: the shocking story of countless men of the Vietnam War era who falsify their military service. Their motives vary, from seeking unearned glory at the expense of authentic heroes, to more tangible benefits like defrauding the V.A. and stealing money from impressionable women. This book enables every patriotic American who appreciates the contributions of those who serve their country honorably to identify and expose fake warriors in their midst, as well as helping to bring about their long overdue punishment."Finally, an excellent study of a serious abuse that's been going on in our country far too long. Fake Warriors exposes the widespread scandal of phony veterans, especially fake prisoners of war. This important book is the manual on what these pretenders do, how they do it, and how we can stop them. It is must reading for anyone who respects the true veterans of our nation. The Holzers, fresh from the success of their "Aid and Comfort": Jane Fonda in North Vietnam, now bring their characteristic lucidity and energy to the treatment of this deplorable con game that feeds on the valor of others and leaches millions of dollars a year from the pockets of American taxpayers."
Friday, May 14, 2010
Because of this equivocal assertion, I'm reprinting here a blog I wrote about a year-and-a-half ago:
Sunday, January 25, 2009
Ultimately, there is only one actor who can “increase” “the supply of currency” or “the amount of money” and only one way it can be done: a government, which possesses a monopoly on the “creation” of money, literally prints more paper currency and moves it into the stream of commerce.
If on Monday the money supply is X, and if on Tuesday the government doubles the amount in circulation, Monday’s and Tuesday's money is worth ½ X.
Historical examples of runaway inflation abound: the German mark after World War I, when postage stamps cost millions; the Chinese currency during the civil war in the 1940s, when it literally took a wheelbarrow full of paper money to buy a loaf of bread. Today one need look only at the once-prosperous Zimbabwe, where the Mugabe government has printed so much money that it’s worth less than the paper it’s printed on.
The late classical economist Ludwig von Mises wrote in his On the Manipulation of Money and Credit that “[i]nflationism, however, is not an isolated phenomenon. It is only one piece in the total framework of politico-economic and socio-philosophical ideas of our time. Just as the sound money policy of gold standard advocates went hand in hand with [classical] liberalism, free trade, capitalism and peace, so is inflationism part and parcel of imperialism, militarism, protectionism, statism and socialism.”
Thanks to the credulousness of our recent “compassionate conservative” president and a compliant, if not complicit, Congress, who handed nearly a trillion taxpayer dollars to his lame-duck, unelected treasury secretary with unchecked power to dispense it any way he wished, and the advent of the Obama Administration with its own grandiose plans to spend trillions more trying to spend their way out of this recession, we are facing serious, perhaps devastating, inflation— because there’s only one way the now-in-charge collectivists/statists/socialists can get that kind of money: print it!
Typically, one way to hedge rampant inflation, some believe the only way, is through ownership of gold, either physically or through enforceable claims on gold.
However, gold and the gold standard has long been maligned by the supporters of fiat money because it is an existential threat to government induced inflation. Indeed, its current quasi-free market price reflects serious concern about inflation.
But not all is well with gold, especially gold ownership.
Unfortunately, most Americas are under the illusion that they have a right to own gold. They are mistaken. America’s history, and the financial situation today, proves that our government has usurped omnipotent power over monetary affairs, one major consequence being that private ownership of gold has never been a right, and remains today a mere privilege revocable at will.
For a thorough historical discussion, see the [seminal] 1973 Brooklyn Law Review article “How Americans Lost the Right to Own Gold, and Became Criminals in the Process,” by Henry Mark Holzer: http://www.fame.org/PDF/Holzer%20Henry%20Mark%20How%20Americans%20Lost%20Their%20Right%20to%20Own%20Gold.pdf
Thursday, May 13, 2010
Even though the price of gold has just hit an all-time high, the elites, collectivists, and statists persist in deprecating the precious metal as a store of value and a hedge against the rampant inflation they have wreaked on the rest of the world and soon will have loosed upon the United States.
They will never learn!
The following is testimony I delivered to the United States Gold Commission (of which Ron Paul was a member), created by Congress purportedly to investigate whether America should return to the gold standard. [Bracketed material has been inserted for clarification.]
Good morning Dr. Schwartz [Executive Director of the Commission, and a colleague of Milton Friedman] and members of the Commission. As you know, I am not an economist but rather a Professor of Law at Brooklyn Law School in New York City. My field is constitutional law, and I have lectured and written extensively on the legal aspects of gold and the nature and scope of government monetary power. For example, two of my books are entitled, respectively, The Gold Clause and Government's Money Monopoly. [Both are now available from Amazon]).
I must confess to a certain ambivalence this morning because, while I appreciate having been invited to testify before this Commission, at the same time I feel like the lawyer who must tell a court that it lacks jurisdiction.
I have come here to say that despite this Commission's good faith, it cannot discharge its Congressionally delegated task--to ". . . make recommendations with regard to the policy of the United States Government concerning the role of gold in domestic and international monetary systems . . . ."--without first understanding, and then admitting, some hard truths about our Nation. Let me explain.
Dr. Allan Greenspan has written [before he changed his mind] ". . . that the gold standard is an instrument of laissez-faire and that each implies and requires the other." ("Gold and Economic Freedom," The Objectivist, Vol. 5. No. 7, July 1966, p.1). Of course, he is correct: economic freedom--more specifically, for our purposes, monetary freedom--is an indispensable prerequisite to any meaningful financial use of gold.
However--and this is the core of the Commission's problem--today there is little economic freedom in America. And almost from our first day as a Nation, there was little monetary freedom; now, there is none.
As to economic freedom, tax laws have redistributed wealth on the basis of need and otherwise removed from productive use capital necessary for reinvestment, diverting it to countless ends disapproved by those from whom the money was taken.
Antitrust and fair trade laws have, contradictorily and impotently, attempted to compel competition and protect consumers from themselves. Instead, such laws have caused business decisions to be predicated not on marketplace considerations, but on guesswork as to how bureaucrats and judges would interpret unintelligible laws.
Labor laws have created compulsory unionization, with its many attendant problems for unwilling employees and employers--and contributed greatly to America's steady decline as the world's preeminent industrial power.
Wage and hour laws have required private employers to establish pay scales and working conditions mandated, not by the free market and mutual agreement, but by government fiat.
Restraints on the use of private property are commonplace--in the name of zoning and so-called civil rights.
Liberty of contract is substantially restricted--in the name of equalizing bargaining power and the so-called public interest.
To understand our lack of monetary freedom, it is necessary to go back into history. With the birth of our Nation at the Constitutional Convention of 1787, our Founding Fathers created a new government which possessed expressly delegated powers. Congress was the recipient of legislative power, and in the monetary realm it was authorized only to borrow money, to coin money and regulate its value, and to punish counterfeiting. The Constitution also expressly barred the states from coining money, emitting bills of credit, and making anything but gold and silver a tender in payment of debts. Clearly, when the work was finished in that hot Philadelphia summer of 1787, as to monetary affairs at least the delegates had substantially resisted the siren song coming from the unfree and semi-free statist European political systems.
But the resolve of America's leaders soon began to ebb. Less than four years after the Convention, the scope of our government's monetary power divided our Nation's leaders at the highest level. Congress wanted to charter the first Bank of the United States. The question was whether the legislature possessed the power, and President Washington sought opinions from his Treasury Secretary, Alexander Hamilton, and his Secretary of State, Thomas Jefferson. It is popularly believed that the two disagreed. Actually, on the issue of government power, they were in complete agreement--in principle. Hamilton held that Congress's few delegated monetary powers were sufficiently broad to encompass chartering the bank, especially if those powers were "loosely" interpreted, and that Congress even possessed extra-constitutional powers beyond those which had been specifically delegated. Although Jefferson denied to Congress the bank chartering power, he would have granted it to the states--thus sharing Hamilton's statist premise about the power of government over monetary affairs. When the Bank Controversy was over, Hamilton's view prevailed. Washington signed the bank bill, and for nearly thirty years afterward few people noticed that the monetary power of Congress had grown considerably.
Congressional power expanded nearly thirty years later, when Hamilton's views about its extra-constitutionality became part of the bedrock of American constitutional law. In 1819 John Marshall's opinion for the Supreme Court in M'Culloch v. Maryland expressly held that in monetary affairs, the government of the United States was, like the monarchs of Europe, "sovereign."
That sovereignty was never more apparent than throughout the Civil War's "greenback" episode, a story too well known to the members of this Commission to recount here. Suffice to say that in order to fight the war, the northern government of President Lincoln created legal tender and simply forced individuals to accept greenbacks, no matter what they thought the paper was worth. As usual, the Supreme Court of the United States was a willing accomplice to Congress's usurping of non-delegated, extra-constitutional monetary power. In the first important legal tender case to reach the Court, Hepburn v. Griswold, while a bare majority held that the act could not be applied to a debt contracted before legal tender became law, every one of the justices (majority and dissent) nevertheless agreed on the underlying principle: that Congress possessed a broad monetary power whose outer boundaries were far from clear. Less than eighteen months later, Hepburn was overruled by Knox v. Lee, and legal tender was expressly held to be constitutional.
By the time of the last legal tender case some years later, nearly three centuries had passed since the 1604 English Case of Mixed Money had approved Queen Elizabeth's sovereign power to debase her coinage. Yet despite the fact that in America we had created a different kind of political system, despite a written Constitution that narrowly circumscribed the power of our government, the foreign sovereign who had been repudiated by the colonists seemed to have been replaced by a domestic one--at least in monetary affairs. The idea that monetary power belongs to the sovereign was conceived in Europe. If, despite the United States Constitution, that idea was born in America in John Marshall's M'Culloch decision (midwifed by Hamilton's opinion to Washington in the Bank Controversy) and reached its majority in the Legal Tender Cases, then its maturity came in three Twentieth Century cases.
In Ling Su Fan v. United States, the Supreme Court concluded that attached to one's ownership of silver coins were "limitations which public policy may require," and that the coins themselves "bear, therefore, the impress of sovereign power."
Two months later the Court went even further, at least in dicta. Noble State Bank v. Haskell held that a state bank could be forced to help insure its competitors' depositors against insolvency. In the course of his opinion for a unanimous Court, Justice Oliver Wendell Holmes actually went so far as to admit that government monetary power was indeed omnipotent: "We cannot say that the public interests to which we have adverted, and others, are not sufficient to warrant the State in taking the whole business of banking under its control."
Holmes's dictum very nearly became a reality in the early days of the "New Deal," when, in a statist orgy of rules, regulations, proclamations, executive orders, resolutions, decrees and manifestos, America's banks were ordered closed, her dollar was devalued, her gold standard abandoned, private ownership of gold was illegalized, and gold clauses were nullified. Although only the gold clause issue reached the Supreme Court, when nullification of the clauses was upheld it was crystal clear that the Court had de facto approved of all the New Deal's statist exercises of raw government power--based on a chain of precedents running back inexorably to Noble State Bank, Ling Su Fan, the Legal Tender Cases, M'Culloch, the Bank Controversy, and thence to the Elizabethan Case of Mixed Money. Ironically, but not surprisingly, in little more than three hundred years, a round trip had been completed: from an English monarch's unlimited monetary power, to the reposing of identical power in the hands of a supposedly free representative democracy. When the smoke of the Gold Clause Cases had cleared--to the profound detriment of individual rights--the government of the United States unquestionably controlled every aspect of this Nation's monetary affairs: money, credit, banking, gold, the securities business, and more.
In the nearly fifty years since then, that control has both deepened and become considerably more sophisticated (as in the Bank Secrecy Act), emulating other contemporary societies which we rightly disparage for their lack of freedom.
Dr. Schwartz and members of the Commission, I have come to Washington today to say that the United States--its government and its people--can not have it both ways. Either we have monetary freedom and a gold standard, or no monetary freedom and no gold standard, though mine may be a lonely voice crying in a wilderness of omnipotent government, I emphasize that there is no middle ground.
If this Commission wishes to recommend a gold standard, it must first understand the nature and scope of our Nation's lack of economic and monetary freedom, and then communicate that understanding to the American people. Only then, and in that context, can a gold standard recommendation from this Commission have any real meaning.
Indeed, should this Commission recommend that a gold standard be instituted, and should Congress and the President take the unlikely follow-up step of introducing one, even then, a gold standard resurrected under today's economic and monetary controls would not be worth the paper it was proclaimed on. Until the government of the United States once and for all pulls out of the economic and monetary affairs of its citizens--whether there be a gold standard or not--we cannot have economic, or monetary, freedom. Without it, what we have instead, as uncomfortable as this may be to admit, are revocable privileges--which are the antithesis of individual rights.
I delivered this testimony to the United States Gold Commission on November 12, 1981.
Sunday, January 10, 2010
"The Best of Times, the Worst of Times" with Ayn Rand: Ruminations by Henry Mark Holzer and Erika Holzer about Anne C. Heller’s "Ayn Rand and the World She Made"
Erika Holzer and I got to know Ayn Rand a half-century ago. For several years we represented her legally, and during these past fifty years, Rand’s ideas have continued to be a major influence on our lives (and that of countless others).
Until recently, there was virtually no biographical information available about Rand written by people without their own axe to grind. The Brandens, hardly dispassionate observers, have had their say. The Ayn Rand Institute, devoted to the promulgation of her ideas and thus having its own interests to serve, has weighed in. Other biographical writing has been published, but by authors who did little or no original research and provided only superficial analysis of Rand and her work.
In late 2009, a biography by Anne C. Heller entitled Ayn Rand and the World She Made was published. Heller’s book is commendably long on biographical detail and contains some fascinating insights about Rand’s unconventional ideas in the context of her novels (especially The Fountainhead and Atlas Shrugged), but it is unfortunately a mixed bag when it comes to providing her readers with a satisfactorily balanced perspective from the people who knew Ayn Rand well—particularly in the Sixties and at the time of her break with her then “intellectual heir,” Nathaniel Branden. Some of Heller’s sources, quoted and anonymous, who know better, have nothing good to say about Rand.
For about five years in the late 1960s, Erika Holzer and I were close friends of Ayn Rand. It is from this perspective that we have written our lengthy essay/review entitled, "The Best of Times, the Worst of Times": Ruminations by Henry Mark Holzer and Erika Holzer about Anne C. Heller’s Ayn Rand and the World She Made. It can be found HERE.