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.]

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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of Independence’s ringing endorsement of republican institutions, individual rights, and limited government is outdated, that the Constitution’s creation of a representative republic belongs to a time gone by, and that the Bill of Rights is not a restraint on government but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.^"

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 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.