Sweet Land of Liberty? The Supreme Court and Individual Rights, by Henry Mark Holzer, Costa Mesa, Calif.: Common Sense Press, 1983, 224 pp., $14.95.
The Constitution—chiefly through the Bill of Rights—concretized and implemented those "certain inalienable rights" proclaimed in the Declaration of Independence. These rights were specific expressions of the principle that every man is an end in himself—not a means to others' ends. Organized society and its ruling representatives (collective might) were to be legally limited, and barred from using individuals as mere subordinate instruments, by an inviolate moral principle (individual rights).
But almost everywhere else, throughout history, the law was premised not in inviolate moral principle but in moral relativism: the unrestrained caprices of groups and group rulers. Rights were mere privileges, granted and held only by sufferance of those exercising unlimited power. The American philosophy was based, then, in individualism. All others were variants of collectivism.
Yet from the beginning, America was wracked with residual philosophical conflicts. The tattered hand-me-downs of Old World collectivism had been, very briefly, packed away and seldom worn by the New World's founders. But never explicitly and ultimately discarded, it was only a matter of time before they again came out of the closet.
As interpreter of the Constitution, the Supreme Court has been on the front lines of this war of ideas. Henry Mark Holzer—professor of constitutional law at Brooklyn Law School and an attorney—has spent the past 20 years analyzing Supreme Court decisions concerning individual rights. With clarity, brevity, and uncompromising consistency, he has sketched an unflattering portrait of an institution that has inexorably acted to restore the supremacy of collective might over individual rights.
Choosing from the most explicit and precedent-setting cases, Holzer painfully dispatches the classroom myth that our judiciary, led by the High Court, has been a great voice for individual rights. His survey encompasses Court rulings on business, property, contracts, religion, speech, sex, even slavery—highlighting the philosophical rationales the justices offered for their decisions. Their pattern emerges clearly: liberal or conservative, dissenting or concurring, they have inevitably based their conclusions upon collectivist premises.
Consider conscription—clearly an example of subordinating the individual's life to the collective's ends. Appealing convictions based upon the Selective Draft Act of 1917, the defendants first argued that there is no draft power cited in the Constitution; thus, the Tenth Amendment would exclude Congress from claiming any such unauthorized power. The Supreme Court replied (Selective Draft Law Cases, 1918) that this argument "would seem to be too frivolous for further notice."
The defendants also argued that the act, in permitting religious exemptions, violated the First Amendment's prohibition of government contributing to "an establishment of religion." The Court again ignored their argument, saying its "unsoundness is too apparent to require us to do more." The main argument, however, was based upon the Thirteenth Amendment, which outlawed "involuntary servitude." Even ignoring Court precedents on the issue, the justices dismissed the argument, claiming: "We are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation…can be said to be the imposition of involuntary servitude." The "theory" that eluded the Court was put forth in the second paragraph of the Declaration of Independence, which held that individual rights to "life, liberty, and the pursuit of happiness" are "unalienable."
To revert to the Old World philosophy of social relativism and collectivism, the absolutism of the rights concept had to be challenged. What totalitarian conspirator or foreign enemy could have undermined individual rights better than the Constitution's sworn guardian, the Supreme Court, in light of the following "principled" interpretation of the First Amendment (Dennis v. United States, 1950)?
Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes.…To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative.
Throughout his survey, Holzer shows how statist precedents in one case are used to justify incursions elsewhere and how liberal interventions into the marketplace of material goods are cited to rationalize conservative interventions into the marketplace of ideas. For example, Chief Justice Warren Burger, a conservative, chides his liberal Court colleagues for opposing government censorship (Paris Adult Theater I v. Slayton, 1973): "Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography"—particularly, he adds, "by people who have never otherwise had a kind word to say for laissez-faire." Holzer's book will give inconsistent "defenders of freedom" scant comfort, for it spotlights the devastating consequences of exception-making in matters of moral principle.
It is difficult to read through this book without becoming angry at the vandalism that men harboring anti-individualist sentiments have inflicted upon our legal system. Yet Henry Mark Holzer's Sweet Land of Liberty? is—for all the indignation you may experience reading it—an indispensable aid to one's intellectual and legal self-defense. And its power to anger should spur many to challenge the perversion of our Constitution and spark a renewed debate over the real meaning of our nation's founding political philosophy. For that is a debate we need to renew with urgency.
Robert James Bidinotto is a free-lance writer.
This article originally appeared in print under the headline "Might versus Rights".