Henry Mark Holzer's blog


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The Constitutional lawyer who's not too keen on the Eighth Amendment.

An example might help, I do not follow his blog and Gulch did not provide a link.

A...

Post Script:

http://www.henrymarkholzer.com/blog.html

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Thank you.

Your position is that this use of force, in this situation violates the VIII Amendment which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Is that a fair representation of your position?

A...

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Thank you.

Your position is that this use of force, in this situation violates the VIII Amendment which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Is that a fair representation of your position?

A...

Yes, that as well as the Sixth, Seventh and Fourteenth Amendments.

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Respectfully, 8th Amendment (cruel punishment) is not applicable, nor 7th (civil trials), nor 6th (speedy trial).

I think you want the 5th Amendment interpreted by case law prohibiting torture in custodial interrogation -- none of which matters today.

Indefinite detention, extraordinary rendition, denial of counsel, sleep deprivation, threats, and physical torture are routinely employed.

According to his resume, Holzer is more concerned with "animal rights" than human rights.

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FYI folks:

The phrase “cruel and unusual punishment” was first used in America in 1776, in Virginia’s Declaration of Rights. When the United States Constitution was ratified in 1788, it was recommended by the Virginia convention that the same language should be incorporated into the U.S. document. Patrick Henry and George Mason, among other Virginians, intended that the restriction should also bind Congress, since otherwise, that body could simply inflict cruel punishments rather than them being imposed by the courts.


Their other main line of argument was that, without a provision of this sort, Congress might replace the common law which the U.S. had largely inherited from Britain, and replace it with civil law of the type practiced in countries such as Spain and France. Henry, in particular, was anxious to show that the ancestors Americans should revere would not have allowed torture and barbarity to exist in their lands. The controversy over the issue was substantial, but the 8th Amendment went before Congress in 1789 and was adopted two years later.

Cruel and Unusual Punishment

Under the terms of the 8th Amendment, as interpreted by the United States Supreme Court, certain punishments are considered barbaric by definition and are therefore prohibited in all circumstances. These include disembowelment and burning alive. In the 21st century, the Supreme Court has extended this prohibition to cover the execution of those below 18 years of age and of those who suffer from a mental handicap. These more recent extensions were the subject of bitter debate and proved highly controversial.

The Supreme Court has also ruled that other punishments should be considered cruel and unusual under specific circumstances. In particular, the Court has said that a principle of proportionality must be adhered to. The 1958 case of Trop vs. Dulles established that the removal of a person’s U.S. citizenship was unconstitutional, on the grounds that it meant that person’s “total destruction” as a member of society. In 1972, also, Furman vs. Georgia effectively outlawed the use of capital punishment in the U.S., although Gregg vs. Georgia four years later allowed executions to resume.

Another significant ruling regarding the reach of the 8th Amendment came in 1977, when in the case of Coker vs. Georgia, the Supreme Court found that it was unconstitutional – on the grounds of a lack of proportionality – for those found guilty of the crime of rape, where the victim was not killed, to be sentenced to death. The minority in this case delivered a furious dissenting opinion, branding the majority “myopic” in that they had failed to take account of the broad sweep of American legal history, rather than simply looking at cases from the previous few years.

http://totallyhistory.com/8th-amendment-to-the-constitution/

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My attitude toward the Supreme Court changed when I read Holzer's article in The Objectivist on The Constitution and the Draft back in the sixties. They managed to engage in sophistry to overcome the involuntary servitude argument and uphold the Selective Service Act of 1917.

Here is a link to one of the more recent blogs having to do with the Tenth AMendment:

http://henrymarkholzer.blogspot.com/2014/07/tenth-amendment-advice-to-my-republican_21.html

I have company which explains why I didn't include a link above. I was eager to make his articles accessible to the OL people who value a rational discussion of the issues. His archive is rich with thoughts about the Constitution and his perspective is reasonable which is delightful. I particularly enjoyed his articles having to do with issues about eligibility for becoming president.

Enjoy!

gg

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What is Holzer's position on the XVII th Amendment's direct election of Federal Senators, versus the original method of selection of the Federal Senators?

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Notes for this amendment:
Proposed 5/13/1912
Ratified 4/8/1913
History
Article 1, Section 3

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According to his resume, Holzer is more concerned with "animal rights" than human rights.

Could be, that. I read the torture article linked by Francisco. Hurl. Here's an interview with Holzer about his animal rights work, from the Sans Everything blog:

When did you first become interest in animal issues, and what form did your original involvement take?

In about 1970 I contributed money to Friends of Animals (FOA) for their campaign to end the slaughter of baby seals in Canada. The FOA founder and president, Alice Herrington, contacted me because she saw on my letterhead that I was a lawyer. At dinner, she told me of the religious exemption in the federal Humane Slaughter Act, I told her it was arguably unconstitutional, I sued (Jones v. Butz), and began looking into broader animal rights issues. That case, and a New York case I brought (unsuccessfully) to close the Central Park zoo in Manhattan, are the first two anywhere to use the phrase “animal rights.”

Compared to today, were there less organizations and resources available to animal advocates of your generation in the early days? Was it even more challenging to advocate for animals back then?

If we define “the early days” as when I brought the Kosher Slaughter Case in about 1970, there were no legal animal advocates, except perhaps the very few “in house” lawyers who worked for the very few national organizations e.g., the Humane Society of the United States (HSUS)—but they didn’t do “principled” cases like the Kosher Slaughter case. They did mostly very fact-specific cases (e.g., closing a rotten shelter). The resources (e.g., data banks, case books) were nonexistent.

It was more challenging in the sense that what some of us were trying to do was writing on a clean slate. There were few if any precedents, and to most people, including lawyers and judges, the idea of any kind of animal rights was absurd. Now, “animal law,” is an accepted, if not welcomed, specialty. In the early 1980s, together with the International Society for Animal Rights I organized the first conference ever held of lawyers who were interested in the subject of animal rights. We scoured the country obtaining names, and names from names, etc., and had about thirty attendees. Most of today’s prominent lawyers in the field were there. Indeed, theAnimal Legal Defense Fund and David Favre’s organization at Michigan Law School (the Animal Legal & Historical Web Center) came out of that conference. That was truly the beginning of an organized animal rights legal movement in the United States. Now there are law school case books, appellate cases, law journals, data bank. Internet sites—many legal tools.

You worked on a high-profile 1992 Supreme Court case, Church of the Lukumi v. Hialeah, which revolved around the issue of animal sacrifice. The case was brought by practioners of Santeria, an Afro-Cuban religion, who objected to an ordinance in the Florida city of Hialeah outlawing the sacrifice of animals in religious rituals. What was the nature of your own involvement in the case, and what message do you think animal advocates should take away from the Court’s decision?

I am a trustee of Institute for Animal Rights Law. The Institute, at my behest, filed two “friend of the court” briefs (written by myself and a former student) in the Supreme Court and we attended oral argument. Essentially, our position was that the Santerians’ claim to free exercise of religion did not trump the city’s power, in those narrow circumstances, to prohibit the practice of animal sacrifice and the consequential dumping of dead animals throughout Hialeah. We lost 9-0. There were at least three messages: (1) the city should have had better counsel, (2) the Supreme Court’s “free exercise” jurisprudence is in disarray, with very fuzzy lines existing about what “free exercise” really means when it is arguably in tension with other public values, and (3) all judges need to have their consciousnesses raised about animal issues. The latter has been happening, but it is a slow, tedious process.

You and your wife Erika Holzer were Ayn Rand’s lawyers in the 1960s and early 1970s. What kind of cases did you work on in that capacity? What was she like as a client? (You must be asked this all the time).

I am.

I represented her in almost everything, except literary and tax matters. Mostly, dealing with people who wanted something from, or had done something to, her. An example of the former would be a TV show that wanted her to appear; the latter would be some folks who had opened a store selling “The John Galt line of draperies.”

As a client, she was easy, and she was difficult. She was a genius, so she quickly grasped what needed to be understood, and all the implications down to the end of the line. She was a genius, so she would be impatient and not infrequently kill the messenger (or the lawyer).

Your readers might be interested in knowing that once she said to me that if I could figure out a theoretical basis for animal rights, I “would be doing the world a great service.”

For part two click here.

Edited by william.scherk
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Animal rights are very simple. Human rights' advocates should pretend they are as the Quakers were in Pennsylvania in Colonial times and hostiles had to be dealt with. They appropriated money for other purposes then ignored how it was really spent. In other words, let the animal abusers defend themselves ideologically in court. I'm going to stay home and do my laundry.

--Brant (hence to be known as) "The Corrupted"

(the price of innocence can be too high sometimes, besides, it can be fun to be naughty if it's not comic relief for virtue)

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