Memorandum to the Tea Parties (V)—and others

(I had prepared this essay before my last blog, entitled “Why?” There’s no reason to waste it while I decide whether to continue with the Tea Party Memoranda. I will make that decision by next Sunday.)

[Please forward]

Worst Decision of the Supreme Court of the United States, No. 2

Morrison v. Olson^[1]

Separation of powers, the Independent Counsel, and Barack  Obama

Once the domain of judges, law professors, and constitutional lawyers, the subject of separation of powers has recently come to the fore as Barack Obama has usurped Congressional Article I power by using presidential Article II executive orders to “legislate” on matters clearly within the purview of Congress. His seemingly endless “amendment” of the Affordable Care Act and “enactment” of the Congressionally-rejected immigration Dream Act quickly come to mind.

Hence, even TV’s talking heads have suddenly awakened to the constitutional doctrine of separation of powers. (Separation of powers is discussed in Chapter 2, pages 66-68 of my The American Constitution and Ayn Rand’s "InnerContradiction".)


In the introduction to my March 16, 2014 blog on M’Culloch v. Maryland (www.henrymarkholzer.blogspot.com) I laid the explanatory foundation for one of the three main pillars of American constitutionalism, Federalism.

The second pillar is Separation of Powers.

As I explained in the M'Culloch essay, Article I, Section 1, of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” (My emphasis.) All!

Article II, Section 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.” (My emphasis.)
 
Article III, Section 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in Such inferior courts as Congress may from time to time ordain and establish.” (My emphasis.)

Three pillars of American constitutionalism.

While the principle of federalism allocates power between the federal and state governments (in a sense, “vertically”), the principle of separation of powers allocates power among the three branches of federal (and state) governments (in a sense, “horizontally”).
It has been said about this horizontal division of legislative, executive, and judicial power that

“[p]erhaps no principle of American constitutionalism has attracted more attention than that of separation of powers.  It has in fact come to define the very character of the American political system.”^[2] James Madison, among other Founders, deemed separation of powers “a first principle of free government.”^[3]

The reason separation of powers is indispensable to democratic institutions was ably expressed by Justice Lewis Powell in the 1983 case of Immigration and Naturalization Service v. Chadha. ^[4]

The Framers perceived that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear. * * * During the [period of the Articles of] Confederation, the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown." (My emphasis.)

Powell continued:

One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. * * * Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and “[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy. . . .” The Federalist No. 48, p. 336 (J. Cooke ed. 1961) (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London edition 1787)).  * * * It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches.

Despite the importance of the separation of powers principle in preventing those abuses, and the danger of tyranny potentially flowing from them, the Supreme Court—in Orwellian terms, the branch “more equal than others”—has frequently allowed one branch of government to invade the prerogatives of another, supposedly co-equal, branch. As we are all too aware, the Supreme Court has not yet spoken about Mr. Obama’s current power-grab of Congress’s legislative power.

In light of my following discussion, keep in mind that a separation of powers violation can occur whenever either of the three branches—legislative, executive, judicial—usurps the power of another. One example was Congressional enactment of the War Powers Act unconstitutionally restricting the President’s Article II commander-in-chief power. Harry Truman’s seizure of American steel mills during the Korean War was a violation of separation of powers, because he had no Congressional authorization. And so has been much of what Obama has been up to lately. Indeed, the President has acted contrary to the expressed wishes of Congress.

But before considering that we must revisit the Watergate scandal and its aftermath, when the Ethics in Government Act of 1978^[5] was passed.  

One provision of the Act created a mechanism for the appointment of an Independent (note the word) Counsel in the Executive Branch. That provision dealt a severe blow to separation of powers in general and, in a reverse of the current problem with Mr. Obama where the President has encroached on the power of Congress, severely encroached on the power of the president.^[6]

Under the Ethics in Government Act, if the Attorney General of the United States learned of information that was “sufficient to constitute grounds to investigate whether any person [to whom the Act applies] may have violated any federal criminal law,” the AG had no more than ninety days to look into the matter.  Within that time, or if his preliminary investigation was completed sooner, he was required to render a report to a special panel of judges.  

If the AG determined there was a lack of “reasonable grounds to believe that further investigation was warranted,” that’s what he was obliged to report to the judges.  His decision not to go forward could not be challenged by the judges, nor was his decision reviewable by any court. Not going forward—which has just occurred with Eric Holder’s decision not to seek a special prosecutor to investigate the IRS scandal—was his alone. In effect, prosecutorial discretion. Note that under the Act there was no Executive Branch control.

On the other hand, the Act provided that if the Attorney General found “reasonable grounds to believe that further investigation is warranted,” he would then apply to the special panel of judges for the appointment of an “independent counsel.”^[7]
In that event, the judges then had to “appoint an appropriate Independent Counsel and shall define that independent counsel’s prosecutorial jurisdiction.”

Whichever way the Attorney General went, his decision was not reviewable by any court. So there was neither executive nor judicial oversight over the AG.

Morrison was appointed Independent Counsel with the jurisdiction to investigate whether the testimony given by Olson—Assistant Attorney General for the Office of Legal Counsel—to a House committee, and every matter related to that testimony, violated any federal laws, including the federal perjury statute.

Eventually, a dispute arose between Special Counsel Morrison and the Department of Justice concerning the latter’s refusal to produce certain materials on the ground that they were beyond the Independent Counsel’s jurisdiction.  

The appointing judges ruled that the jurisdiction they had given Morrison did encompass the materials she had asked for.  

Subpoenas were issued, and Olson moved to quash them on the ground that the Ethics in Government Act violated separation of powers because Congress had created a literally unaccountable Independent Counsel, at the expense of the Executive Branch.
The federal district court upheld the Act’s constitutionality.

The United States Court of Appeals for the District of Columbia reversed, ruling that the Act, considered in its entirety, did violate separation of powers.

 The Supreme Court reversed the Court of Appeals.  The Act, including the Independent Counsel provisions, was constitutional. While there were several issues upon which the Court disagreed with the Court of Appeals, I'm concerned here only with the separation of powers aspect of the Supreme Court decision.

Caveat: Although the Morrison case involved Congress arguably exceeding its powers at the expense of the Executive Branch (although the Court disagreed), while Mr. Obama’s current unilateral exercise of presidential power is at the expense of Congressional legislative power, the separation of power principle at stake in each situation is the same: Usurpation of constitutionally delegated power, no matter which branch of the government is involved.

It’s useful to quote what I wrote above:

As I explained in the M'Culloch essay, Article I, Section 1, of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” All! (My emphasis.)

Article II, Section 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.” (My emphasis.)

Article III, Section 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in Such inferior courts as Congress may from time to time ordain and establish.” (My emphasis.)

Three pillars of American constitutionalism.

 The lone dissenter in Morrison v. Olson was Justice Antonin Scalia, whose opinion fully explains why the venerable principle of separation of powers was violated in the Morrison case, and why the majority’s decision was indefensible. His reasoning explains why Morrison belongs on the list of worst Supreme Court decisions. And Justice Scalia’s dissent speaks volumes about our current President’s executive order power-grab in violation of Articles I and II.

Scalia began his dissent by positing a bedrock principle of American constitutionalism, one that predated the United States Constitution itself:

It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Building his argument, Scalia then invoked the Framers, especially James Madison who in Federalist 47 wrote regarding separation of powers that: “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” 

Justice Scalia then noted, as had Madison some two hundred years earlier, that even within the legislative branch the structure of Congress itself provided a distinct separation of powers because that body was divided into two chambers, the members of which were selected differently and the powers of which differed considerably.^[8] 

Not so the President’s powers under Article II.  There is no textual dilution of his power, although during the framing of the Constitution there were proposals to do just that by having more than one executive or even a council of advisors.

Having laid this groundwork, elaborately, Scalia then bluntly named what Morrison v. Olson was all about: in a word, “Power.”  But more than that, Scalia recognized that although a separation of powers issue can come to the Court “clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf [the Independent Counsel provisions of the Act] comes as a wolf.”

How so?

Because, according to Scalia,

by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. 

Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. ^[9]

In other words, Justice Scalia was saying that not only did Congress under Article I move into the area of presidential Article II power, but the legislature then made the Independent Counsel insulated from control even by the Executive Branch.

Once an Independent Counsel is appointed, virtually everything that follows is effectively “beyond the control” of the Executive Branch, i.e., beyond “the President and his subordinates.” Indeed, Scalia made the point that merely to describe the facts of the case is to decide it, else, he wrote, “the concept of a government of separate and coordinate powers no longer has meaning.”

Adverting again to Article II, Scalia reminded the Court’s majority that the Constitution vested the executive power in the President:  “As I described at the outset of this [dissenting] opinion,” Scalia wrote, “this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld [as the Supreme Court majority did not] on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?^[10]  [Damn clear analysis.]

No one can argue with the answer to Scalia’s first question.  It is manifestly “yes”—so much so that the Morrison majority did not, indeed could not, refute it.  Scalia continued:

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity [investigation and prosecution]: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute . . . .^[11]    (My emphasis.)

For Scalia and others who believe that separation of powers means true executive power under Article II of the Constitution remains vested in the President not some literally Independent Counsel appointed under the Ethics of Government Act of 1978, the majority’s recognition that in the Act Congress had deprived him of power should have swung the decision against the law’s constitutionality. 
As Scalia put the point:

It is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that ‘[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.’ * * *  

It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether ‘the President's need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch’ as to require complete control . . . , whether the conferral of his powers upon someone else ‘sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws’ . . .  and whether ‘the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties” . . . . It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.^[12]     

             

It is understandable that the majority was unable to answer Scalia’s arguments, rooted as they were in facts about what the Act said and how it operated, and rooted as well in the majority’s own concessions. 

Nor did the majority deal with another salient point Scalia made: that the Court would have no difficulty finding a separation of powers violation if, for example, even a smidgen of judicial power was handed off to another branch of government—and no inquiry would be made about whether the Court retained sufficient other judicial powers.  Article III requires all judicial powers to be vested in courts, and that’s that.

But a Congressional nibbling away at the power of the President was acceptable to the Court—and Scalia’ eloquent final lament would not move his colleagues:

A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much.  That opinion, like this one, will not be confined by any rule. * * * This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed—all purely executive power must be under the control of the President. [Equally all purely legislative power must be under the control of Congress.]

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential.  It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law.  The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”^[13]  [And “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .”]

Returning to the separation of powers principles enunciated by Justice Scalia in Morrison v. Olson, let’s reverse the players in the current Obamacare situation. 

Congress enacted and the President signed the Affordable Care Act. Among other things, it contains specific provisions as to who is affected, in what way, and when and how certain events are to occur. It is a fact that the President has unilaterally altered at least a score of those provisions in a manner wholly at odds with the legislation enacted by Congress (and approved by him.)

Let’s consider Scalia’s two questions in his Morrison dissent, but as applied to my reversal of the parties: (1) Were the Affordable Care and Dream Acts the product of Congressional choices, and (2) have they been supplanted by the President?

The answer is a resounding “yes,” providing powerful ammunition to those who would attack the President’s unilateral unconstitutional actions, not in canned generalities but on the basis of a foundational constitutional principle.


 ____________________
[1] 487 U.S. 654 (1988).
[2] Wood, The Creation of the American Republic, 1776 – 1787, 151.  The author, writing in 1969, nearly fifty years ago, added in a footnote that “[t]he literature on separation of powers is enormous.”
[3] Wood, The Creation of the American Republic, 1776 – 1787, 152. 
[4] 462 U.S.919, (1983).
[5] 28 U.S.C. Section 591 et seq.
[6] Even though the Independent Counsel law has expired, Morrison v. Olson still stands as precedent for the proposition that the Supreme Court—a “separated power”—can arrogantly chip away at presidential constitutional prerogatives. And, in principle, the prerogatives of Congress as well.
[7] Under the Act, Congress could remove an Independent Counsel, as could the Attorney General.  But he could do so “only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such Independent Counsel’s duties.”  Other provisions imposed reporting requirements on the Attorney General if he removed an Independent Counsel, and allowed the removed official to obtain reinstatement.
[8] For example, the House possesses the power to impeach and to originate money bills, and is elected from congressional districts within a state.  The Senate is the “jury” in an impeachment proceeding, has to power to approve the President’s major appointments, and is elected statewide. There are hundreds of representatives, but only one hundred senators.
[9] Emphasis added.
[10] Emphasis in original.
[11] Emphasis in original.  Justice Scalia was just getting warmed up.  He immediately followed the quoted statement with this: “. . . I cannot refrain from pointing out that the Court greatly exaggerates the extent of that ‘some’ Presidential control. Most importan[t] among these controls, the Court asserts, is the Attorney General’s power to remove the counsel for good cause. * * * This is somewhat like referring to shackles as an effective means of locomotion. As we recognized [before]—indeed, what [the early case of] Humphrey's Executor was all about—limiting removal power to ‘good cause’ is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be an agency of the legislative and judicial departments, and wholly disconnected from the executive department . . . because it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter . . . . What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the most importan[t] means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the good cause limitation as protecting the independent counsel’s ability to act independently of the President's direct control since it permits removal only for misconduct.” Not content to let the majority’s arguments rest on this refutation, Scalia then addressed at length what he called the Court-identified “presumably less important controls that the President retains” and demolished them just as handily.   
[12] Emphasis in original. There’s an interesting side point here: Scalia was saying also that to make the Court the arbiter of whether the President has “sufficient” control of an Independent Counsel is to make the judiciary an accessory to the separation of powers violation because that’s not the Supreme Court’s job.
[13] Emphasis in original.

---

Memorandum to the Tea Parties (I)--and others

[Please forward]

In your forthcoming battle to win a Republican Senate majority in November it is essential that you understand and articulate a major danger lurking in the loss of that fight: Obama’s power to appoint a third justice of the Supreme Court of the United States, if Roberts, Scalia, Thomas, Alito, and even Kennedy were to leave the bench in the next year or two.

It is not enough for Americans to know—as too few do, anyhow—that a vote for a United States Senator is a vote for a Supreme Court justice because of the Senate’s Article II power: The President shall have the “Power . . . with the Advice and Consent of the Senate, to . . . appoint . . . Judges of the supreme Court . . . .” (My emphasis.)

Nor is it enough for Americans to know that it has been the justices of the Supreme Court of the United States—with rare exceptions, liberal and conservative alike—who have been responsible for corruption of the Declaration of Independence’s noble recognition of foundational principles of individual rights and limited government, and the destruction of the Constitution and Bill of Rights’ embodiment of those principles.

The Tea Parties must make Americans understand how our nation has gone from “WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty, and the Pursuit of Happiness” to today’s all-powerful Congress and imperial presidency.

The theme of my 2013 book The American Constitution and Ayn Rand’s “Inner Contradiction” is this: Since the Supreme Court’s earliest days the animating premises of its decisions in cases involving individual rights, limited government, capitalism, and national sovereignty has been what the late author Ayn Rand identified as “altruism, collectivism, and statism.”

 

Too many others, lawyers and laypersons alike, see the matter differently. They believe that the fundamental founding principles of this nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights is outdated, that the Constitution’s creation of a representative republic is from a time gone by, and that the Bill of Rights is not a restraint on government but rather a source of newly found, even “creatable” rights. These people are the proponents of the Constitution as a “living document,” and their high priest was the late Supreme Court Justice William J. Brennan, Jr. “[T]he Constitution,” according to Brennan,

embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. * * * When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * *

But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * *

Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized. (Speech by Associate Justice of the Supreme Court of the United States William J. Brennan, Jr., to the Text and Teaching Symposium, Georgetown University, October 12, 1985, Washington, D.C., reprinted in “The Great Debate: Interpreting Our Written Constitution,” published by the Federalist Society as Occasional Paper No. 2 (1986).)

In short, the Declaration of Independence, Constitution, and Bill of Rights do not contain immutable principles, but are malleable and thus subject to whatever any majority wants on any given day. (For the compelling opposite view, see my The Supreme Court Opinions of ClarenceThomas, 1991-2011.

The late Ayn Rand, who had emigrated to America from the Soviet Union, has eloquently expressed why the United States was unique in world history:

The dominant ethics of mankind’s history were variants of the altruist-collectivist doctrine which subordinated the individual to some higher authority, either mystical or social. Consequently, most political systems were variants of the same statist tyranny, differing only in degree, not in basic principle, limited only by the accidents of tradition, of chaos, of bloody strife and periodic collapse. Under all such systems, morality was a code applicable to the individual, but not to society. Society was placed outside the moral law, as its embodiment or source or exclusive interpreter— and the inculcation of self-sacrificial devotion to social duty was regarded as the main purpose of ethics in man’s earthly existence.

Since there is no such entity as “society,” since society is only a number of individual men, this meant, in practice, that the rulers of society were exempt from moral law; subject only to traditional rituals, they held total power and extracted blind obedience—on the implicit principle of: “The good is that which is good for society (or for the tribe, the race, the nation), and the ruler’s edicts are its voice on earth.”

This was true of all statist systems, under all variants of the altruist-collectivist ethics, mystical or social. “The Divine Right of Kings” summarizes the political theory of the first—“vox populi, vox dei” of the second. As witness: the theocracy of Egypt, with the Pharaoh as an embodied god—the unlimited majority rule or democracy of Athens—the welfare state run by the Emperors of Rome—the Inquisition of the late Middle Ages—the absolute monarchy of France—the welfare state of Bismark’s Prussia—the gas chambers of Nazi Germany—the slaughterhouse of the Soviet Union. (Ayn Rand, “Man’s Rights,” The Virtue of Selfishness, 123; my emphasis).

It is well and good, and indeed necessary, for opponents of the Washington regime to decry specific abuses of our founding documents. Obamacare, suffocating taxation, subversion of the Second Amendment, police state tactics of the IRS, a president who acts like the Czar.

But that’s not enough.

The veil must be ripped off, exposing that beneath it lies sacrifice of the individual to the collective, enforced by raw statist government power.

That’s the job of the Tea Parties.

Let ‘er rip! 

The American Constitution and Ayn Rand's "Inner Contradiction"

After about six months of publication, my book is #87 of the top 100 in the following Amazon Kindle category: Books> Legal Theory & Systems> Judicial Systems.

I almost didn't write the following, because how immodest it may appear But there's too much at stake here, so I have. This is a very important book. There is nothing like it. It can influence contemporary political thinking in the United States.
 
As those of you who know me and/or my legal and other work, I did not write this book to make money. I wrote it for another kind of profit: To make the case about what has been wrong with the American constitutional/legal system from Day One--in the hope that recognition of the disease might lead to a cure, or at least an amelioration of symptoms.

At the risk of repeating myself, here are the Preface and Introduction to The American Constitution and Ayn Rand's "Inner Contradiction." [Notes have been omitted.]

**********

Preface

Like many other Americans, for years I’ve been deeply concerned about our nation’s future. My fears have been exacerbated in the past three years because of the often lawless, anti-American, recklessly incompetent reign of Barack Obama. Worse, his presidency will continue for another year. Even worse, he might be reelected.

In light of that possibility, consider a recent report in The Weekly Standard of a survey commissioned by the American Revolution Center, which found that nearly 83 percent of Americans failed a simple test of knowledge about the founding of the United States of America. 

Many of our fellow citizens believe that the founding principles of this nation are passé, that the Declaration of Independence’s ringing endorsement of republican institutions, individual rights, and limited government is outdated, that the Constitution’s creation of a representative republic belongs to a time gone by, and that the Bill of Rights is not a restraint on government but rather a source of newly found, invented “rights.”

Along with this woeful ignorance, and largely because of it, the Constitution of the United States of America and the Bill of Rights—rooted in republican institutions, individual rights and limited government—are under an unprecedented attack by Barack Obama and his far left Democratic Party, aided and abetted by the complicit mainstream media, unions, academia, and entertainment industry. To say nothing of many courts, including the Supreme Court of the United States in more than a few cases.

Employing and legitimizing the exercise of statist power, the Supreme Court of the United States has facilitated state legislatures and Congress in their sacrifice of individual rights to the common good, and made a mockery of the Founders’ creation of a limited government.

But with a few notable exceptions there is hardly any knowledgeable, explicit and principled defense of our Constitution and Bill of Rights to be found anywhere.

Not on radio, television, or in Hollywood. Not in the press. Not at the grassroots. Certainly not in academia. Nor, sadly, emanating from many Republicans, Conservatives, and Libertarians. Most of the media’s pontificating so-called constitutional experts, especially those on national television, usually do more harm than good because they spread disinformation that is neither knowledgeable nor principled. And note, for example, the Republican presidential candidates’ pitiful and embarrassing “debates.”

While many Tea Party activists and other patriots have been valiantly fighting for core constitutional values, many of them are disarmed because they’ve been taught little about American constitutional law. In order to defend the Constitution and the Bill of Rights, everyone fighting for America today needs to know much more about these two documents than most of them know.

Those who are committed to fighting for America’s future are obligated to acquire at least a basic understanding of the Constitution’s origins and birth, its written text, the manner in which it has been deliberately violated, and the consequences of how it has been deliberately misinterpreted by its enemies. 

Because of the importance of our struggle, about eighteen months ago I put aside most of my writing and legal work to offer a twenty-hour, ten-lecture Internet course on American constitutional law (Those unfamiliar with my credentials and my commentaries on legal and political issues can peruse my blog, http://www.henrymarkholzer.blogspot.com, and my website, http://www.henrymarkholzer.com.) The Internet course was successful, but some of the listeners expressed disappointment that the lectures weren’t available in a permanent text form.

They are now.

The entire twenty hours of lectures have been transcribed, and I have edited them for a less extemporaneous, more polished presentation, and added new material.

The result of my labors is this book: The American Constitution and Ayn Rand's "Inner Contradiction. Because my goal is to maximize readership—especially during the months before the November 2012 election—The American Constitution and Ayn Rand's "Inner Contradiction is priced at $4.99. It is now available on most digital readers, including Kindle. [Note: it is now $2.99 on Kindle.]

If you find The American Constitution and Ayn Rand's "Inner Contradiction worthwhile, I have two requests. One is that you inform everyone you know about this project, and ask them to do the same. This goes double for all Tea Partiers, because most of them have their own lists containing the names of like-minded folks. Second, please write a positive review on Kindle and as many other places as possible.

Introduction

I’ve written this book for two reasons. First, to provide patriotic Americans with an overview of the Constitution’s most important provisions as interpreted by the Supreme Court of the United States^. At the same time, I want to demonstrate something unknown to virtually all Americans: that foundational to every political, social, economic and legal system are ethical principles, and that from our nation’s earliest days to the present there has been an ethical leitmotif running through the Court’s most important decisions affecting individual rights and limited government. Not all their decisions, but many—and some of the most important ones.

As to that leitmotif, that recurring theme, a short version of my personal journey to its discovery will be useful.

In law school, I studied English common law and its influence on the American legal system. What I learned was a revelation. I came to realize that from the days of the common law to my days in law school in the late 1950s, the principles of individual rights and limited government had consistently been sacrificed to what was perceived as “the common good.” I learned, as we shall see in Chapter 1, that the ink was barely dry on the Bill of Rights when the new federal government began to violate individual rights and renege on the constitutional promise of limited government. (The states had done so even before the Bill of Rights was enacted.)

In almost every law school course (especially Constitutional Law) dealing with the power of the government and its delicate (and usually adverse) relationship to individuals (especially constitutional law, it quickly became apparent to me that much of the blame for violating those rights and repudiating that promise fell on state and federal courts in general and the Supreme Court of the United States in particular—the latter, ironically, the supposed guardian of the Constitution. 

The problem wasn’t with any particular court at any particular time, or even with whether particular judges were “liberals” or “conservatives.” The problem was that the state and federal judiciaries consistently upheld the constitutionality of laws enacted by legislatures and approved by executive branches that violated the principles of individual rights and limited government. 

From the time I graduated in 1959 until 1972 I practiced privately, specializing in constitutional law. I represented, among others: defectors fleeing communism for freedom in the West; physicians choking on government over-regulation, who couldn’t properly serve their patients; young men resisting the draft and the nightmare of Vietnam; “gold bugs” seeking to protect their assets from government-induced inflation and other schemes to destroy wealth; political candidates struggling against First Amendment–strangling campaign finance laws; publishers defying censorship; asylum-seekers battling the then-INS; homeowners trying to preserve their neighborhoods from do-gooder housing-integration federal judges; and students on the wrong end of affirmative action programs.

In general, I represented constitutionalists challenging, and defending themselves against, the explosion of government power that violated the principles of individual rights and limited government.

In 1972, while continuing my full-time law practice, I became a full-time law professor.

For many of those years of practicing, teaching and writing, a recurring question bedeviled me: What subverted America’s founding principles of individual rights and their necessary corollary, limited government?

  

I found the answer to that question—and the leitmotif of this book—in an eight-word sentence written by the late Ayn Rand: “America’s ‘inner contradiction’ was the altruist-collectivist ethics.^"

^**********

 Amazon reviews, even simple blurbs, continue to be welcome--especially in this political climate, where more and more politicians (e.g., Cruz, Paul, Ryan) openly acknowledge some influence from Ayn Rand on their thinking.

Korematsu, revisited

On Tuesday, February 4, 2014 Salon.com reported on a speech Supreme Court Justice Antonin Scalia had just given to law students at the University of Hawaii. He spoke of the World War II Franklin Roosevelt- and Earl Warren-engineered shipment of tens of thousands of American citizens of Japanese extraction to barbed-wire, military-guarded camps in remote locations, and of the shameful Supreme Court decision that approved of the “relocation.”

In the recent past, a few (regrettably influential) conservative commentators who should know better have tried to make a case justifying the World War II arrest and incarceration of West Coast Americans. Surely the government’s conduct was immoral, and should have been ruled unconstitutional by the High Court.

But the Court upheld the government’s conduct.

That was bad enough.

But the Court’s opinion was worse.

Yet, despite the government’s assault on individual rights in its exercise of raw force, in his speech Scalia observed that not only could such a relocation of anyone occur today, but it could —and probably would—be upheld by the Supreme Court of the United States.

According to Salon:

“Well of course Korematsu was wrong,” Scalia said. “And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again.” [Note Scalia’s use of the word “will”—HMH]

Scalia blamed the Korematsu decision on “panic about the war and the invasion of the Pacific and whatnot,” and argued that these influences are hardly exclusive to the America of the recent past.

“That’s what happens,” said Scalia. “It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality.”

The Court split 6-3 in Korematsu. The most eloquent dissent was by Justice Robert Jackson, later to be lead American prosecutor at the World War II Nuremburg War Crimes Tribunal, who spoke for the victims of all-powerful government.

Korematsu v. United States

Mr. Justice JACKSON, dissenting

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. 

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody,examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. 

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four—the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. 

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.” Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it. 

But the “law” which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine. 

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. 

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. 

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order. 

In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. 

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. 

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. 

The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” 

A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case. 

It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience. 

In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: “Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.” “We decide only the issue as we have defined it-we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.” And again: “It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.” 

However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know. 

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. 

My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.

(Justice Jackson’s dissent is taken from Best Opinions of the Supreme Court of the United States (Vol. I: Race) by Henry Mark Holzer, available on Amazon.

First Amendment or Free Market?

Just when I began to believe that many of the more prominent TV talking heads could not be more stupid, they did it again.

Regarding the current Duck flap (no pun intended).........

In a magazine interview, the Head Duck quoted scripture (in which he devoutly believes) on the subject of homosexuality. That was his right.

Many people were offended. That was their right.

They conveyed their displeasure to the Duck's employer, A&E Network. That was their right.

The employer fired Mr. Duck because of what he said and/or because of the complaints. That was its right.

Why, Greta and Bill (and many others) was it the Network's right? Because A&E is a private organization owned by private individuals.

That's the free market. If I own a bowling alley and insist my employees have the image of a bowling pin tattooed on their foreheads, they can take it or leave it.

Similarly, if Mr. A&E doesn't want his employees quoting scripture anywhere, disparaging homosexuals, or predicting the next Super Bowl's winner, the employees can take it or leave.

This is the free market, whose unofficial slogan should be, but sadly isn't, "take it or leave it."

Thus, the Duck Episode has nothing--nothing!!--to do with the First Amendment to the Constitution of the United State of America. To remind Greta VanSusteren, Bill O'Reilly, and hosts of their colleague hosts, the First Amendment begins "Congress shall make no law . . . ." And even though judicial sleight-of-hand has made the First Amendment's guarantees apply to the states, not yet in our statist-collectivist nation has that amendment been thought to assure that "A&E shall make no law . . . ."