Tuesday, March 25, 2014

Constitutional Law: The Final, Final Chapter

On June 5, 2012 I wrote a lengthy essay entitled “Constitutional Law: The Final Chapter.” Here are the pertinent parts:

On May 7, 2012, a few weeks after print and eBook publication of my latest book, The American Constitution and Ayn Rand’s “Inner Contradiction,” I wrote the following on this blog:

The American Constitution and Ayn Rand's Inner Contradiction” is the product of years practicing, teaching, researching, writing, cogitating, analyzing and synthesizing American constitutional law.  And spending decades applying to that subject Ayn Rand's political philosophy.  To the best of my knowledge no one else has done this in the same way I have.

Just as Erika Holzer's and my "Aid and Comfort": Jane Fonda in North Vietnam, and my first and second editions of The Supreme Court Opinions of Clarence Thomas, are unique books, so too is The American Constitution and Ayn Rand's "Inner Contradiction."

I've eschewed my regular publisher, McFarland & Co., in favor of getting this book out to the public before the November election, in the hope that it could have an impact on some voters. It is for sale on virtually every digital format in existence (for peanuts), and now there are print copies available (for peanuts, plus).

That's all I'm going to do.

(I'm taking a minute to think of a polite way to say the following.)

OK.  I've done enough.  The horses have been led to water, but I consider it unseemly for me to try to make them drink.

If members of the public consider my work valuable in the fight for freedom in America, it's up to them to use the ammunition I've provided.  Indeed, that’s the least they can do.  They can spread the word . . . or not.

One easy way for like-minded people to do that is by reviewing the book on Amazon.  Another is simply to tell as many people about it as possible.

I have put up.  Now it's time for others to do the same, or . . . .

The “peanuts” price for the Kindle and every other eBook edition was about $5.00 and for the print edition just under $19.00—326 pages, 104 endnotes.

The announcement went out directly to hundreds of men and women who receive this blog, as well as indirectly to countless others throughout America and even around the world.

In the announcement, I requested that those who found the book valuable spread the word, and provide reviews on Amazon.

Only two recipients of the announcement told me that they would do so.

In about the last six weeks, there has been one Amazon review (a good one, from a former student).

The number of print and eBook editions sold has been, to say the least, disappointing.

With the exception of a few “regulars,” I have received no comments about the book.

My reaction to this latest experience is the same it has been for the last 53 years, while as a lawyer, teacher and writer I engaged in my quixotic efforts to make the case for individual rights, limited government, free markets, and national sovereignty.

Despite winning some important cases, enlightening some open-minded students, and authoring some provocative articles and books, much of my effort during that time has been wasted.  The return on my investment of time and intellectual capital has been not commensurate with my labors.  Not even close!

I didn’t really need another lesson, let alone one taught by The American Constitution and Ayn Rand’s “Inner Contradiction,” but I’ve just received one.

What I’ve experienced, again, is that there is a miniscule serious audience for my ideas. Thus, I’ve finally accepted that long ago I should have abandoned the irrational, intellectually corrupt, and mostly altruist-collectivist-statist field of American constitutional law and found honest legal work elsewhere, practicing, teaching, and writing.  Perhaps in contract law which, despite some government meddling, deals with voluntary relations between consenting adults (and entities).

While it’s too late for that now, it’s not too late for me to turn my back on constitutional law.  Starting right now, I shall no longer practice, teach, or write about that subject. 

* * * *

As all of you know, I broke that promise by writing about constitutional law from June 5, 2012 until a few days ago. Doing so has been akin to an addiction. But no more. This time for sure.

From my book’s publication in 2012 to this week there have been 8—count ‘em—8 reviews. Sales can charitably be characterized as mediocre.

This is why several days ago I asked the question of “Why?” I should continue.

While I’m deeply grateful to the twenty-or-so blogees who responded, all urging me to continue with my quixotic dissemination of constitutional truth, the paucity of that response merely confirmed my need to quit.

What was unsaid in my “Why?” blog was that a significant reason for my earlier quitting, and expectation that I would quite again (for real!) was the absence of ever having received what I had a right to expect in “feedback” for my work. Of course there was some, which I cherished, but, frankly, not nearly qualitatively or quantitatively what my work deserved.

I will write again, but not about constitutional law. I care too much.

Last, on the important subject of “feedback,” you may find interesting Chapter 17 of Erika Holzer’s book Ayn Rand: My Fiction-Writing Teacher. 



There's a Latin phrase—Illegitimi Non Carborundum—that was all the rage some years ago.  Today it would be available in imaginative forms all over the net.  Back then, it made a more pedestrian appearance—a plaque to put on your desk or hang on your wall.  (I bought the wall version for my husband when we were practicing law together.)  It means: “Don't let the bastards wear you down.”

In retrospect, I think the plaque is better suited to a writer's office than a lawyer's (although my husband would disagree).  This is especially true in the case of embattled novelists whose ideas challenge the status quo and who are made to pay a steep price for it.  They can benefit by a daily, albeit implicit, reminder that it’s up to them to counteract whatever stumbling blocks the culture in any given era throws in their way.

Sometimes, keeping “the bastards” at bay is most effective when the counteracting factors come from other people.  It takes the form of feedback.

A few years ago, in an article about feedback that appeared in Liberty magazine, I wrote:

Interesting word, “feedback.” Webster's New World Dictionary [whose] first definition refers to things electrical . . . is . . . revealing: “The transfer of part of the output of an active circuit or device back to the input . . . .”    

 Applying this [definition] to writers, I see “output”—the book in question—of an “active Circuit”—the writer’s creative imagination or [in the case of non­fiction] diligent research and analysis—poised to receive “input”—the reader’s response to the book.

As to why writers crave this sort of input, I went on to explain how “the right kind” of feedback can have exceedingly positive effects on a writer’s often Herculean creative efforts:

It’s not anything so crude as approval that I’m talking about but rather some clear indication that the reader has tuned into the writer’s message or technique or writing style.  Or, to put it colloquially, the reader “gets it.”

Embattled novelists who, despite undeniable talent and enormous skill, not to mention prodigious effort, are not getting the appreciation and/or recognition they deserve, are hungry for the kind of reader who “tunes in” to some important aspect of their work.  It provides a moment of respite.  Soothes the spirit.

Restores their perspective and keeps them in the writing game.

Ayn Rand was one such embattled writer in her day.  When I was first getting to know her, I would never have guessed that she appreciated the kind of input I’ve been talking about . . . until the evening she enlightened me on the nature of “genuine” feedback, and, in the process, revealed (unintentionally, perhaps) the extent to which even famous and accomplished writers harbor a need for it.

Thinking back, I realize that I had inadvertently gotten the ball rolling on the subject. Well before Ayn and I had spoken explicitly about feedback, I remember picking up on something in her demeanor whenever she was asked to autograph books after a lecture or a Q & A session.  Invariably courteous, she would listen politely to endless variations on the theme of “Atlas Shrugged has changed my life” or “It’s my favorite novel in the world” or “I’ve read The Fountainhead sixteen times!” This would elicit an appreciative smile or a simple “thank you” and, of course, her signature on their book, but, within a very short time, Ayn looked . . . tired.

On the rare occasion when some fan got specific about a character or a plot point, or, better yet, asked her a really probing question about Atlas or The Fountainhead, it was like a shot of caffeine.  Those enormous, dark eyes of hers would snap to attention, the questioner would become the object of intense concentration, and the two of them would be wrapped in a ten-or fifteen-minute cocoon of conversation (clearly, a big thrill for the fan; talk about feedback being a two-way street!).

After one particularly grueling session when the line of people wanting her autograph was long and consisted of an unbroken stream of “I loved your book!” declamations, Ayn finally noticed me noticing.  When she was free, she took me aside and owned up to the self-evident: she was completely exhausted.  Not that each and every autograph seeker hadn’t been sincere, she acknowledged readily.  But why couldn't they have done a better job of focusing on her?  Why couldn't they get past vague generalities that gave her absolutely nothing?

Knowing from personal experience that legions of Ayn Rand fans were understandably awed just to be in her presence and probably could recite a dozen reasons why they loved her novels if only they could get past the thrill of meeting her (I had done much the same thing at an early lecture, approaching her during the Q & A in an embarrassingly timorous state), I told her as much.

Ayn agreed with me—but only up to a point.  “Even so, giving a writer proper feedback takes time,” she said with conviction.  “It requires a conscious effort to express more than a fleeting impression of a novel as complex as Atlas Shrugged.  It entails doing at least some advance homework so that when you meet the author, you can express your enthusiasm in a meaningful way.  With a modicum of specificity,” she added tartly.

I have to admit that I flushed with pride.

I was remembering all those late-night sessions after my husband and I had concluded our legal business. Whenever we had an appointment with her, I would do a lot of “advance homework” so that the minute our work was done, I’d be in a position to inundate Ayn with well-thought-out questions; with observations that went into considerable detail; with enthusiastic responses to specific passages in her novels.

While this was obviously in my own self-interest (I was learning so much, and everything she shared with me was delivered with such blinding clarity), and while Ayn was more than willing to have me engage her in these lengthy literary discussions, I was gratified to learn that I had always given her the kind of meaningful feedback she had just described.

. . . I was replaying one night in particular when I’d commented almost offhandedly about some aspect of Atlas, intended as part-feedback, part learning exercise (since my comment was the prelude to a question I’d been meaning to ask)—and had the exhilarating experience of seeing my comment metamorphose into a moment of self-discovery on Ayn's part.

Ayn Rand, realizing something about Atlas Shrugged that had never occurred to her before?

I know it sounds preposterous, but it’s true. (My husband’s memory of the incident remains as vivid as mine.)  It went something like this: “. . . and what boggles my mind, Ayn, is how your writing Atlas paralleled Galt inventing his motor. I was just re-reading—”

She stopped me right there.  “What are you saying?”

“Just that John Galt made his incredible scientific breakthrough in solar energy—all very theoretical—for a practical purpose: the invention of a motor. You did the same thing.  Here you make this brilliant theoretical breakthrough in philosophy, and it’s for    the practical purpose of creating Atlas Shugged—”

Ayn was on her feet, staring at me.  Then through me. I stood rooted to the spot, wondering if I’d made some terrible faux pas.

Her voice, when she spoke, had a distant quality. “You’ve just told me something about my own novel that I never realized . . .” (Subconsciously, she had to have known it all along.)

I was grasping, for the first time, why every time my husband and I had talked to Ayn until the wee hours about Atlas Shrugged or The Fountainhead or We the Living or one of her plays or just some article she’d completed for The Objectivist, we would run out of steam long before Ayn did.  As she saw us to the door, I would be blinking hard to keep my eyes open, but Ayn—quite a few years our senior, mind you—would be looking positively energized!  (Quite a contrast from the fatigue she’d exhibited just from signing autographs at a Q & A session.)

I think Ayn sensed what I was thinking about as we sat waiting for the lecture hall to empty because she touched my arm and said with the hint of a smile . . . as if she, too, were remembering, “Emotional fuel is something we all need.”  She didn't have to add, “Thank you, Erika.”  Those eyes of hers had never been hard for me to read.

This was my only conversation with Ayn on the subject of feedback.

It was the only one I ever required.  Thanks in part to her disarming candor, in part to my own life experience, it is a rule of thumb for me to take the time and effort to give writers I admire feedback that is both specific and meaningful.

That goes double for writers in the ranks of the “embattled”: men and women who, more and more often, these days, find themselves competing with a glut of celebrity-studded “novelists” and nonfiction “writers”—popular movie stars, pretty-boy TV personalities, headline-grabbing jocks.  Au courant cultural icons, many of them, whose books, if they actually write them, are not likely to win any literary prizes, but who come equipped with their own ready-made, million-dollar audiences and are hyped onto the bestseller lists.  Publishers love them.

As for reader response to my own writing, more often than not it takes the form, as it does with most novelists I know, of: “I loved your book.”  Since many of us can spend years giving birth to a novel, this sort of feedback, while not unwelcome, never fails to disappoint.  Which is why I’m grateful for the exception—someone who, in Ayn’s words, gives me the pleasure of a little “genuine” feedback that probes or engages me in meaningful conversation.

From the few comments I’ve received in response to my “Why?” blog I know that there will be disappointment because of my “going Galt” regarding constitutional law in general, and the worst Supreme Court decisions in particular.

However, some of you know that a couple of years ago I wrote all ten essays and published them on my website, www.henrymarkholzer.com. As with the two I’ve just published—M’Culloch v. Maryland and Morrison v. Olson— my intention was to edit and republish all ten of them. Because I’m not doing that, you can find the earlier uneditied versions below. Perhaps the Tea Parties and others will find them useful.



Chief Justice John Marshall rewrites the Constitution’s Article I, Section 8.
2. Morrison v. Olson
This Independent Counsel case is a classic example of how the separation of powers doctrine can be violated. 

3. Griswold v. Connecticut
The Supreme Court uses contraceptives to rewrite the Constitution. 

4. Gitlow v. New York
A Communist helps destroy the Bill of Rights.

5. Wickard v. Filburn
Intra-state commerce and home grown wheat.
6. Heart of Atlanta Motel, Inc v. United States and Katzenbach v. McClung 
Interstate commerce and "morality"

7. Muller v. Oregon
Ladies, Laundries, And Eventually The Third Reich
8. Blaisdell v. Home Building & Loan Association
Mortgages in Name Only
9. Roe v. Wade
The progeny of Griswold v. Connecticut

10. Selective Draft Law Cases
Why the government owns your life

Monday, March 24, 2014

A Republican dark horse?

The other evening I was talking politics with a friend. The conversation turned to the 2016 presidential election, particularly the Republican nominee. My friend was stunned by my mention of a possible “dark horse”—a man beyond the horizon, theoretically and practically. 

My friend urged me to post my thoughts on my blog. OK, for what it’s worth………..

This is not a prediction! Let alone an endorsement. Grounded in reality, it’s merely a not-so-remote possibility that can happen either by the dark horse’s overt campaign to obtain the nomination, or via a draft.

Who’s the dark horse?

Mitt Romney! 

Yes, That Mitt Romney!!


1.      Mitt Romney has more name recognition than any other potential candidate, having received approximately 61,000,000 popular votes in 2012. And he won them against a then-popular sitting president.

2.     If 61,000,000 voters wanted Romney instead of Obama in 2012, it is reasonable to assume many of them would want Romney against the likes of Biden, Clinton, or virtually any other Democrat. This means that in 2016 Romney would go into the election with a huge inventory of popular votes. Romney’s opponent in the 2016 election would have an inventory of zero presidential votes.

3.     To the extent Massachusetts’ RomneyCare was a deal-breaking negative for some 2012 voters, his 61,000,000 voters apparently didn’t think so. This means that whatever one thinks of RomneyCare, it can now be a positive in a Romney candidacy. Why? Because accepting its premise and existence, on a state (Tenth Amendment) level RomneyCare does what it was designed to do. In other words, for better or worse it “works.” With so many angry voters now accepting the principle of reformed federal health care, the “success” of RomneyCare in Massachusetts could be seen by many voters as a model either for other states or even the federal government. (I oppose it on any level.)

4.     During the October 2012 presidential debate Obama ridiculed Romney about his concern over Russia’s “geo-political” threat. Quoting Obama: “You [Romney] said Russia. Not Al Qaida. You said Russia. The 1980s are now calling to ask for their foreign policy back because . . . the cold war’s been over for 20 years.” (My emphasis.)

Here’s what the more knowledgeable and forthright Romney retorted: “Russia, I indicated, is a geopolitical foe . . . and I said in the same paragraph I said and Iran is the greatest national security threat we face. Russia does continue to battle us in the U.N. time and time again. I have clear eyes on this. I’m not going to wear rose-colored glasses when it comes to Russia or Mr. Putin . . . . ” (My emphasis.) Romney knew more about Russia than Obama had learned in four years as president. Make that 5+ years, now.

5.     Romney is, despite the 2012 slanders, a hugely successful businessman, unlike such as Gingrich, Cruz, Ryan, Santorum, Paul, Palin, J. Bush, Perry, Walker, Kasich, and other possible contenders for the Republican nomination. Like the last five, Romney was also a governor.

6.     Since the 2012 election even many of Romney’s political detractors have acknowledged, albeit grudgingly, that he is a thoroughly decent and honorable man. Which is more than can be said about the people being bandied about as potential Democrat nominees. Pundits tell us that the “nice guy” factor is of utmost importance in elections.

But, one might say, Romney won’t run. Maybe not. Maybe he’d have to be drafted. 

Remember this, however, whatever else Mitt Romney is, he’s a patriotic American with a life of service.

If the bugle sounds, Mitt Romney will answer the call of his country.