About the Author
A brief biography of Professor Henry Mark Holzer.
Other Books by the Author
List of books authored or edited by Professor Henry Mark Holzer
Fear of the future.
How to fight that fear.
Why I’ve written The American Constitution and Ayn Rand's "Inner Contradiction."
The underlying leitmotif running through American political philosophy and jurisprudence.
What led to my discovering and experiencing the consequences of that leitmotif, as law student, lawyer and law professor.
My formulation of the central question: What subverted America’s founding principles of individual rights and their corollary, limited government?
And the brilliant answer provided by the late Ayn Rand.
What is “constitutional law”?
1. Formation of the American Republic
Genesis of the American Republic, before the Declaration of Independence.
The Declaration of Independence as moral and political statement.
The text and meaning of the Declaration of Independence, with some little-discussed emphases.
Our Founding Fathers, among them some surprising figures.
First Continental Congress, an important but troubled beginning.
Constitutional Convention of 1787, off in another direction.
Structure and content of the Constitution, a brilliant conception.
The ratification battle in the Federalist and elsewhere, revealing amazing foresight by leading Founders.
James Madison’s monumental achievement in the First Congress.
Debates over ratification of the Bill of Rights, and the sometime narrowness of its approval.
2. The American Constitutional System:
Judicial Review, Federalism, Separation of Powers
Judicial Review, Federalism, Separation of Powers
Judicial giant John Marshall and the genesis of judicial review.
Marbury v. Madison, where Chief Justice John Marshall established the principle of judicial review, and the Supreme Court of the United States came to be the Constitution’s final arbiter and the “more equal” branch of government.
“Originalism” and other methods of constitutional interpretation: pragmatic and otherwise
The “Living Constitution.”
Federalism: The relationship and tensions between the federal and state governments, showing federal legislation affecting matters that should be within the Tenth Amendment powers of the states.
How the Court thwarted Arkansas voters, and how the Court’s conservatives thwarted Congress in the Brady Law gun case of Printz v. United States.
Separation of powers: The relationship and tensions between the three supposedly co-equal branches of government—legislative, executive and judicial—showing how the “more equal” Supreme Court refereed battles between the president and Congress and, in the bargain, expanded its own powers. For example, President Truman’s seizure of the steel mills during the Korean War and the House of Representatives’ refusal to seat a playboy congressman.
Griswold v. Connecticut, illustrating ignored federalism, violation of separation of powers, and run-amok judicial review.
3. Congress and Its Commerce and War Powers
The source, nature, and scope of Congress’s seemingly unlimited power.
The Bank Controversy, with Washington refereeing between Jefferson and Hamilton.
Second Bank of the United States, the “Necessary and Proper Clause” and birth of the congressional-power monster.
The Commerce Clause, steamboats, lottery tickets, and homegrown wheat.
More Commerce Clause, Bobby Kennedy’s “moral wrongs,” hamburgers, motels, and how some Court conservatives won two small victories against the Clause’s tsunami.
Still more Commerce Clause, and buying health insurance or going to jail.
Congress’s war powers, including draftees dying in World War I trenches and the infamous Korematsu case’s incarceration of American citizens during World War II.
4. The President’s Powers: Domestic, Foreign, and War
The president’s “chief executive” and “faithfully execute” power, including President Obama’s appointment of czars.
The embargo on selling arms abroad during the Chaco War, loss of American sovereignty to the United Nations, one United States senator’s attempt to prevent the U.S. from becoming just another “state” on a planet with no individual countries, and the Supreme Court’s “reassurance” that treaties and the dangerous “executive agreements” don’t override domestic United States law.
The president, as commander-in-chief, is undercut by the Supreme Court in its four twenty-first-century terrorism cases. These have nearly emasculated his war-fighting powers by treating al-Qaeda terrorists like common criminals, granting them constitutional rights in defiance of controlling precedent and remaking the judiciary into America’s ultimate generalissimo.
5. The Judiciary and Its Powers
The source, nature, and scope of judicial power, as provided in the Constitution and federal statutes.
Limitations, if any, on judicial power. For example, are courts able to render opinions that are only advisory; may they simply decide not to decide; are there questions too “political” to be decided; can just anyone sue; and what do tomatoes have to do with the federal judicial power?
6. Intergovernmental Relations
The “horizontal” relationship between the states.
The requirement of “full faith and credit” in our constitutional system of “joint sovereignty.”
Constitutional Limitations on Congressional Power
Textual limitations on the power of Congress, including suspension of the writ of habeas corpus to which alien terrorists, now captured on the field of battle, are apparently entitled.
Constitutional Limitations on the Power of the States
The few textual constitutional limitations on the power of the states, including the prohibition against impairment of contracts—which didn’t prevent the Supreme Court from upholding the Minnesota Mortgage Death Act in the heyday of the New Deal.
Racially restrictive realty covenants.
7. Prohibitions on Congress and the States: The Bill of Rights and the Fourteenth Amendment
Introduction to the Bill of Rights
By what trick of judicial legerdemain did the Bill of Rights—of which the First Amendment begins: “Congress shall make no law…”—come to limit the powers reserved to the states under the Tenth Amendment?
The “Incorporation Doctrine”
The myth of “Substantive” Due Process, and its impact on laundresses, anarchists, killers; and also on contraception and abortion.
8. The First Amendment
Religion. Who’s correct about “establishment of religion,” the Founders, or the ACLU and the Supreme Court? And to know whether the “free exercise” of religion is really free, ask the Mormons.
Speech. Of the various categories of speech—political, obscene, threatening, commercial, symbolic, employee, defamatory, and indecent—which are more, and which less, protected— and why? What about subversive advocacy, and political campaigns?
9. The Eighth Amendment
Cruel and Unusual Punishment, including why drawing and quartering is no longer acceptable but vegetarian meals for murderous prisoners might be required.
10. Equal Protection of the Law
The Emancipation Proclamation to the Fifteenth Amendment, including various Civil Rights Acts.
Racial discrimination, white juries, and interracial marriages.
The racism euphemistically called “affirmative action.”
Racial segregation, including Brown v. Board of Education (I), desegregation with “all deliberate speed,” and the dozen-year school desegregation case.
Does desegregating a school mean that it must then be forcibly integrated?
Political party platforms.
Final thoughts about the leitmotif of The American Constitution and Ayn Rand's "Inner Contradiction," and the destruction wrought by that “inner contradiction.”
Supplementary textual material.