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The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America

The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America

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The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America

valutazioni:
4/5 (7 valutazioni)
Lunghezza:
483 pagine
8 ore
Pubblicato:
Aug 20, 2013
ISBN:
9781429949095
Formato:
Libro

Descrizione

A gripping intellectual history reveals how Oliver Wendell Holmes became a free-speech advocate and established the modern understanding of the First Amendment

No right seems more fundamental to American public life than freedom of speech. Yet well into the twentieth century, that freedom was still an unfulfilled promise, with Americans regularly imprisoned merely for speaking out against government policies. Indeed, free speech as we know it comes less from the First Constitutional Amendment than from a most unexpected source: Supreme Court justice Oliver Wendell Holmes. A lifelong skeptic, he disdained all individual rights, including the right to express one's political views. But in 1919, it was Holmes who wrote a dissenting opinion that would become the canonical affirmation of free speech in the United States.

Why did Holmes change his mind? That question has puzzled historians for almost a century. Now, with the aid of newly discovered letters and confidential memos, law professor Thomas Healy reconstructs in vivid detail Holmes's journey from free-speech opponent to First Amendment hero. It is the story of a remarkable behind-the-scenes campaign by a group of progressives to bring a legal icon around to their way of thinking—and a deeply touching human narrative of an old man saved from loneliness and despair by a few unlikely young friends.

Beautifully written and exhaustively researched, The Great Dissent is intellectual history at its best, revealing how free debate can alter the life of a man and the legal landscape of an entire nation.

A Kirkus Reviews Best Nonfiction Book of 2013

Pubblicato:
Aug 20, 2013
ISBN:
9781429949095
Formato:
Libro

Informazioni sull'autore

Thomas Healy is the author of The Great Dissent, which won the Robert F. Kennedy Book Award. He is a professor at Seton Hall Law School and has received fellowships from the Guggenheim Foundation and the Hutchins Center for African & African American Research at Harvard University. A native of North Carolina, he lives in New York City with his wife and two daughters.

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The Great Dissent - Thomas Healy

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To Arlene

CONTENTS

Title Page

Copyright Notice

Dedication

Prologue: An Unexpected Visit

1. Train Fever

2. A Smart Chap

3. The Habit of Intolerance

4. Catspawned

5. The Old Ewe and the Half-Bakes

6. He Shoots So Quickly

7. Defending Sophistries

8. Dangerous Men

9. They Know Not What They Do

10. The Red Summer

11. Workers—Wake Up!

12. A Plea for Help

13. Quasi in Furore

14. Adulation

15. Alone at Laski

Epilogue: I Simply Was Ignorant

Photographs

Notes

Bibliography

Acknowledgments

Index

About the Author

Copyright

PROLOGUE

An Unexpected Visit

On Friday, November 7, 1919, as federal agents launched a nationwide raid on the homes and meeting halls of Russian immigrants, three members of the United States Supreme Court mounted the steps of a redbrick town house in Washington, D.C., just blocks away from the White House. Unlike the agents, who had been dispatched by an ambitious young official named J. Edgar Hoover, the justices were not hunting for communists. They were there to call on their colleague Oliver Wendell Holmes Jr., Boston Brahmin, Civil War veteran, and sage of the common law. But their visit, unusual and unexpected, was linked to the larger mission being carried out that day, and, to the justices at least, it was every bit as important.

They were greeted by Holmes’s wife, Fanny, and led up the steep stairs to the second floor, where Holmes had his study. In those days, the justices did not have offices at the Supreme Court; instead they researched and wrote their opinions at home, sending notes and drafts to one another by messenger. Holmes’s study was spacious and bright, two high-ceilinged rooms connected by sliding double doors. In the rear room, looking out over a small garden, stood a cherrywood desk that had belonged to his grandfather, a judge on the Massachusetts Supreme Judicial Court, as well as an old-fashioned upright desk. This is where Holmes worked, alternating between the two desks and a comfortable leather chair in front of the fireplace. On the mantel were photographs of several young female friends, and high above them hung two crossed swords, one used by his great grandfather during the French and Indian War and another carried by Holmes himself during the Civil War. Through the doors was a smaller room where his secretary worked at a desk handed down by Holmes’s father, the famous doctor and author. Bookshelves lined both rooms, climbing the walls and wrapping around the windows and doorways like ivy. Their shelves were packed tight with books—more than ten thousand volumes in all, mostly law, philosophy, and history, but also the occasional detective story or racy French novel.

Because the Court term was under way, Holmes was dressed in a morning coat with a stiff white shirt and high collar. He welcomed his visitors into the study and motioned to his secretary, Stanley Morrison, to stay in the adjoining room with the doors open. Like nearly all the rest of Holmes’s secretaries, Morrison was a recent graduate of Harvard Law School who had been handpicked for the job by a trusted faculty member. He was also the friend of another Court secretary that year by the name of Dean Acheson, and after the visit he told Acheson what had happened. Acheson, of course, went on to achieve his own fame as secretary of state during the Cold War, and when he wrote a memoir of his early years in Washington he recounted the incident, which is how we know about it today.

After they were seated and had exchanged pleasantries, the three justices—Willis Van Devanter, Mahlon Pitney, and a third whose name Acheson could not remember—explained the reason for their visit. The day before, Holmes had circulated a dissenting opinion in a case the Court had heard two weeks earlier. It was an important case testing the government’s power to punish the anarchists and agitators who had spoken out against the recent war. And for most members of the Court, it was an easy case. Of course the government could punish such troublemakers. Freedom of speech was not absolute, and if the defendants had intended to disrupt the war, they deserved to be treated as criminals.

The majority of the Court, and anyone who followed its decisions, might have expected Holmes to agree. After all, just nine months earlier he had written three opinions for the Court saying pretty much the same thing. One of those cases was an appeal by Eugene V. Debs, the leader of the Socialist Party and a frequent candidate for president, who had been sentenced to ten years in prison for a speech he had given in the summer of 1918. It was essentially a stump speech, an effort to fire up the base in advance of the fall elections, and Debs had chosen his words carefully. He said nothing that explicitly urged interference with the war, though he did praise party members who had opposed the draft. For Holmes, that had been enough. In a short and dismissive opinion, he had accepted the jury’s verdict that Debs meant to illegally obstruct military recruiting and had affirmed his conviction.

So when the Court heard arguments in the anarchists’ case, few people expected Holmes to side with the defendants. But something had changed. Instead of voting with the majority, Holmes said the convictions should be reversed. The defendants had no intent to undermine the fight against Germany, he explained. They were merely upset with President Wilson’s decision to intervene in the Russian Revolution. Besides, he argued, their speech was protected by the First Amendment. This last point was no small matter. In spite of its seemingly clear command—Congress shall make no law … abridging the freedom of speech—the First Amendment at that time was still largely an unfulfilled promise. The Supreme Court itself had never ruled in favor of a free speech claim, and lower courts had approved all manner of speech restrictions, including the censorship of books and films, the prohibition of street corner speeches, and assorted bans on labor protests, profanity, and commercial advertising. Even criticism of government officials could be punished, the courts had ruled, if it threatened public order and morality. But now, with the country gripped by fear of the communist threat, Holmes was proposing something radical: an expansive interpretation of the First Amendment that would protect all but the most immediately dangerous speech. His opinion was passionate and powerful, especially the long concluding paragraph. This began strangely, incongruently, as though Holmes were making the case against free speech, not for it:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises—

Then, just as the reader began to blink in confusion, wondering if something had gone wrong, if perhaps the printer had made an error, Holmes suddenly—brilliantly—changed direction:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

No one else on the Court wrote like this. Only Holmes could translate the law into such stirring, unforgettable language. Yet even by his high standards this was unusually fine, and his colleagues worried about the effect it might have. Although the war had ended a year earlier, the country was still in a fragile state. There had been race riots that summer, labor strikes that fall. A bomb had exploded on the attorney general’s doorstep—the opening strike, the papers warned, in a grand Bolshevik plot. A dissent like this, from a figure as venerable as Holmes, might weaken the country’s resolve and give comfort to the enemy. The nation’s security was at stake, the justices told Holmes. As an old soldier, he should close ranks and set aside his personal views. They even appealed to Fanny, who nodded her head in agreement. The tone of their plea was friendly, even affectionate, and Holmes listened thoughtfully. He had always respected the institution of the Court and more than once had suppressed his own beliefs for the sake of unanimity. But this time he felt a duty to speak his mind. He told his colleagues he regretted he could not join them, and they left without pressing him further.

Three days later, Holmes read his dissent in Abrams v. United States from the bench. As expected, it caused a sensation. Conservatives denounced it as dangerous and extreme. Progressives hailed it as a monument to liberty. And the future of free speech was forever changed.

*   *   *

The justices’ visit to Holmes is a remarkable piece of constitutional history. Nowhere else in the annals of the Supreme Court has there been such a personal appeal to one justice by a group of his colleagues. That it took place in the privacy of Holmes’s study, in the presence of his wife—that the justices sought her help with their appeal—only heightens the intrigue.

And yet, the visit isn’t the most surprising part of the story. What is truly remarkable is that the justices had reason to be there in the first place. Contrary to the popular view of him today as a great civil libertarian, Holmes was not always a staunch defender of free speech. In fact, prior to his dissent in Abrams he had done as much as any judge to render the First Amendment toothless. In one of the first Court opinions to address the topic, he had embraced the cramped English view that freedom of speech prohibits only prepublication censorship but places no limits on the government’s power to punish speakers after the fact. In another case, he had affirmed the conviction of a small-time anarchist for inciting … nude sunbathing. His earlier opinions as a judge on the Massachusetts Supreme Court were no different. When a policeman complained that he had been fired for expressing his political views, Holmes had famously responded, The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

It wasn’t that Holmes had a particular dislike of free speech. He disdained all constitutional rights. His most well-known opinions (dissents, all) had come in a long line of cases involving progressive labor laws. The conservative majority of the Court had repeatedly invalidated these laws, arguing that minimum-wage and maximum-hour regulations deprived businessmen and workers of their liberty—the ability to sell or buy labor on whatever terms they wished—and thus violated the Fourteenth Amendment. Of course, the laissez-faire conservatives cared little about the right of employees to work fourteen-hour days at rock-bottom wages; they were really protecting the ability of employers to get cheap labor. But while Holmes’s dissents in these cases made him a hero to progressives, he was not motivated by any sympathy for the common workers, the thick-fingered clowns, as he once called them. What irked him about those decisions was the focus on individual rights in general, implying that there are limits on what a democratic majority can do. Holmes would have none of it. Every society rests on the death of men, he liked to say. If a nation needs soldiers, it seizes young men and marches them off to war at the point of a bayonet. If an epidemic breaks out, it forces the public to get vaccinated. The same is true, Holmes thought, even when there is no emergency. If the majority, acting through its elected lawmakers, wants to limit the workday of bakers to ten hours, it should be permitted to do so, regardless of whether that decision is misguided or conflicts with some ideal of freedom. And he, as a judge, had no business standing in the way. If my fellow citizens want to go to Hell I will help them, was another favorite saying. It’s my job.

In short, Holmes was in many ways the justice least likely to stick his neck out for the right of free speech—and for the Court’s role in enforcing that right. So why did he do it? Why did a man who sneered at liberal sentimentality his whole life write one of the canonical statements of American liberalism, a document that has been compared to the speeches of Lincoln and the essays of Milton? Was his opinion somehow consistent with everything he had said and done throughout his life? Or did Holmes undergo a conversion of sorts? And if so, what triggered his sudden change of mind? Was it something he read? Something he witnessed? Something he remembered from his past?

These are not mere idle psychological questions. Holmes’s dissent in Abrams marked not just a personal transformation but the start of a national transformation as well. The power of his words and the force of his personality gave his opinion an authority far beyond the normal judicial dissent. Civil libertarians immediately embraced it as an article of faith, and Holmes’s tribute to the free trade in ideas, along with his concept of clear and present danger, became not only cultural catchphrases but, in time, the law of the land. Indeed, it is no exaggeration to say that Holmes’s dissent—the most important minority opinion in American legal history—gave birth to the modern era of the First Amendment, in which the freedom to express oneself is our preeminent constitutional value and a defining national trait. Nor can it be disputed that, nearly a century later, his dissent continues to influence our thinking about free speech more than any other single document.

Unraveling the mystery behind Holmes’s transformation will therefore tell us not only much about him; it will tell us much about ourselves, too. But how is the mystery to be solved? Holmes has been dead for more than seventy-five years, and even if we could travel back in time to ask him, it is far from certain that he would—or could—provide an explanation. He was an extremely private man who took great pains to protect his public image. He destroyed most of the letters he received and instructed his many correspondents to do the same (fortunately, almost none of them complied). One might also doubt his powers of self-examination. Although generally self-aware, Holmes had blind spots like anyone else. He was defensive, sensitive to criticism, and reluctant to give credit for his ideas to others. Would he be capable of the honest introspection necessary to crack such a case? The truth is he would likely scoff at the entire inquiry. The trouble with all explanations of historic causes, he told a friend, "is the absence of quantification: you never can say how much of the given cause was necessary to provide how much effect, or how much of the cause there was. I regard this as the source of the most subtle fallacies."

Objection noted. But the subjects of history should never be permitted the final word, for that deprives us of the opportunity to make our own sense of the past. Besides, even Holmes admitted that such speculations always are amusing and tickling if new.

Our only option, then, is to plunge headlong into the past, to immerse ourselves in that distant time and place, to sort through the remains of Holmes’s life and reconstruct the story behind those famous words. As it turns out, that story is as fascinating as the events that took place in his study on that strange November day. It is a story of intellectual exploration and emotional growth, of chance encounters, wartime hysteria, and terrorist plots. It is a story about an intense behind-the-scenes effort to change the mind of a legal icon. It is a story about the unlikely friendships between an old soldier and the young lads who rescued him from loneliness and despair, urging him on to the crowning achievement of his career. Finally, it is a story about the power of free and vigorous debate to change the course of history. In that sense, it is a vivid affirmation of the very principle Holmes so eloquently defended.

1

Train Fever

A story like this—retracing a man’s journey toward enlightenment—could begin at any number of moments. It could begin in 1902, when Holmes fulfilled his lifelong ambition and was appointed to the United States Supreme Court. It could begin twenty years earlier, when he abruptly left his job as a professor at Harvard Law School to take a seat on the Massachusetts Supreme Court. It could begin even farther back, in 1864, say, when he reluctantly began his legal studies after quitting the army; in 1861, when he was commissioned an officer in the Massachusetts Twentieth Regiment fresh out of Harvard College; or even, if we were determined not to leave a single stone unturned, in 1841, when he became the firstborn child of Amelia Lee and Dr. Oliver Wendell Holmes Sr. But this story begins in June 1918, at the start of the Court’s long summer recess, as Holmes and Fanny prepare to travel to their vacation home on Boston’s North Shore. We choose this moment—and it is a choice, to be sure—because of the extraordinary chain of events that will unfold over the next seventeen months and because, over the course of those months, there will be ample opportunity to reflect on the experiences in Holmes’s past that made him the man he was.

When the Court adjourned that June, Holmes was seventy-seven years old and had just finished his sixteenth term on the Court. All told, he had been a judge nearly half his life. It was the only job he ever really liked. War was an organized bore, he said, and his career as a lawyer had been mostly a disappointment. Though he was sharp on his feet and won his share of cases (fourteen of thirty-two in the state’s highest court), he disliked the business side of legal practice and relied on his partners to bring in clients. He found greater satisfaction in the scholarly work he did on the side, writing articles for the American Law Review on arcane topics such as privity and common carriers and producing his dense masterpiece The Common Law. But whereas the practice of law was too close to the sordid and petty affairs of the world, scholarship was too far removed. In the one year he spent as a professor at Harvard, he began to grow sober with an inarticulate sense of limitation. Ultimately, he concluded that academic life is but half life—it is a withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister.

Being a judge was the perfect middle ground. It made him feel that he was still in the fight yet allowed him to keep his hands clean and indulge his taste for abstraction. And he was good at it. Probing and incisive, he could spot the wrinkle in a case quickly and iron it out nearly as fast. He worked hard, churning out opinions at twice the rate of some of his colleagues and taking on extra cases when he finished his own. The other justices sometimes grumbled that Holmes was able to produce so much only because his opinions were so short. But they appreciated his eagerness to help out, his genial, conciliatory manner, and his obvious concern for the reputation of the Court.

His own reputation in 1918 was mixed. When he had been appointed to the Court by Theodore Roosevelt, some observers were skeptical, describing him as a literary feller with a strong tendency to be brilliant rather than sound. In certain quarters, that assessment still held. He relied too heavily on clever aphorisms, critics said. He glossed over counterarguments, was often obscure, and provided insufficient guidance to lower courts. These criticisms wounded Holmes, and for a long time he feared he would never receive the recognition he desired, which was nothing less than greatest jurist in the world. But in the past few years, his stature had grown considerably. A circle of young progressives, attracted by his willingness to uphold social reforms, had begun to praise him as a paragon of judicial virtue. The circle included such rising stars as the legal scholar Felix Frankfurter, the political theorist Harold Laski, and the journalist Walter Lippmann. To these and other idealistic young men, Holmes was more than just a great judge; he was an inspiring, romantic figure, a sort of philosopher-poet whose intellectual curiosity, dazzling style, and contrarian impulses seemed like a breath of fresh air in the musty world of government and law. They published tributes to him, feted him with parties and dinners, and passed around his opinions like sacred texts. And though Holmes was not yet the national celebrity he would later become—the wise prophet whose Rushmore-like head graced the cover of Time in 1926, the Magnificent Yankee who was immortalized on Broadway and the silver screen—he was beginning to feel as though his life’s work had been worthwhile.

His personal life was also in good order. Apart from some toothaches and a cough that bothered him at night, he was healthy and vigorous, walking the two miles home from Court each day and occasionally breaking into a jog to cross the road or catch a streetcar. He carried his tall frame erect, with the bearing of a soldier, and if he was not as lean as he had once been, the extra bulk only added to his grandeur. Always handsome, his features had also grown more impressive with age. He had thick snowy hair, piercing blue eyes, and that famous white mustache fanning out past the edges of his face, ridiculous and glorious at the same time. His marriage to Fanny, forty-six years and counting, was as comfortable as the old alpaca coat he sometimes wore to keep warm in his study. They had dropped out of society long ago, but the young men who worshiped at his feet brought laughter and cheer to their home, making up for the lack of children. It was, Holmes reminisced later, one of the happiest periods of his life.

Not that there weren’t occasional moments of gloom. As the years piled up, more and more of his old friends were dying off. Just this past term, Henry Adams had passed away, his long, fruitless education finally at an end. Two years before, it had been Harry James, known to his readers as Henry. And the year before that, John Chipman Gray, the Harvard law professor who had long ago vied with Holmes and James for the attentions of a free-spirited and ill-fated young woman (known to James’s readers as Daisy Miller). When he was a line commander in the Union army, Holmes had watched helplessly as, one by one, his young friends were cut down on the battlefield. Now the same thing was happening in old age, and he once again felt like the lone, accidental survivor.

The current war was also a source of strain. Holmes had no qualms about the United States’ entry into the European conflict. Damn a man who ain’t for his country right or wrong summed up his views on the matter. But the war brought hardships, even for a Supreme Court justice. There had been a shortage of coal the previous winter, which, combined with the coldest weather in twenty years, had made life miserable for the poor and uncomfortable for the rich. Fanny closed off the upper floors of the house and canceled their Monday afternoon teas. They ate their meals quietly at home and rarely went out. Even the arrival of spring was darkened by news from the front. In late March, the Germans mounted a last desperate drive across France, pulling within a few days’ march of Paris. One night, as shells rained down on the City of Lights and the kaiser predicted imminent victory, Holmes lay awake in bed with heartburn and the beginning of a violent cold.

For the most part, however, he did his best to ignore events across the ocean. He avoided the newspapers—as he always did—and tried not to talk or write about the war. Instead he renewed his boyhood passion for art, spending Saturday afternoons at a gallery across from the British embassy, where he chatted with the curator and browsed through prints of the old Dutch masters. He even bought a few small engravings that he tucked into the corners of his study—two van Dycks, a Rembrandt, and a Whistler he passed off as a Christmas gift for Fanny. The total came to several hundred dollars, and some of his friends reproached him for spending money that could have gone to war bonds. Holmes defended himself, arguing that if philosophy and art were given up the war would become a fight of swine for swill. But he also sought reassurance, asking one young woman whose son had been drafted, Do I seem too detached in giving any time to such things?

More than anything, he threw himself into his work. As usual, he wrote more opinions than anyone else that term. Most of these were small change, barely of greater significance than the disputes he had resolved as a state court judge. There was the case of the six-year-old boy who lost his leg while trying to retrieve a marble from beneath a railroad car. (Holmes dismissed the boy’s suit under a New Jersey law that barred recovery for those injured while playing on railroad tracks.) There were property and contract disputes, an admiralty case, a bankruptcy proceeding, and various questions of statutory interpretation. But two dissents near the end of the term stood out, illustrating what made Holmes so popular among progressives. In the first case, the Court struck down the federal government’s effort to eliminate the growing scourge of child labor. The majority ruled that the law exceeded Congress’s power to regulate interstate commerce. Holmes, adhering to his belief that judges should not thwart the public’s will, disagreed. If Congress could shut down the interstate market in lottery tickets, prostitution, and contaminated eggs—all of which the Court had approved—then why, he asked, could it not also regulate child labor?

The second case was an appeal from a Toledo newspaper that had been convicted of contempt by a federal judge for questioning his handling of a pending case. A majority of the justices rejected the claim that the conviction violated freedom of the press, reasoning that the paper had tried to improperly influence the judge’s conduct, and Holmes was initially inclined to go along. But his close friend on the Court Louis Brandeis privately urged him to dissent, and when the majority opinion was circulated in late May, Holmes agreed to do just that. He dashed off a few paragraphs and read them to Brandeis that afternoon, then sent his colleagues a revised version the next day. His argument was modest. He did not mention the First Amendment or freedom of the press. He did not even claim that the conviction was unjustified. He merely wrote that federal law required the judge to submit the matter to a jury—rather than render the verdict himself—because the newspaper posed no immediate threat to the administration of justice. This was a technical point, the kind of objection one seizes upon when not willing to tackle the main issue in a case; it hardly qualified as a ringing defense of free speech. And yet, for anyone worried about the creeping pall of censorship, for anyone unsettled by the growing persecution of socialists and pacifists, Holmes’s dissent offered a glimmer of hope. His emphasis on the lack of immediate danger and his assertion that a federal judge should have the fortitude to withstand public scrutiny suggested that here, at least, was a man who could be counted on to resist the hysteria sweeping the country. Or so one might have thought.

That dissent was handed down on Monday, June 10, the last day of the term. Now it was Friday, and Holmes was visibly drained. While the Court was in session and he was working furiously to finish his opinions, he could keep going through a combination of adrenaline and willpower. But once the work stopped, he was hit with a sense of emptiness and collapse, as if the bottom had dropped out. It was sad to see him, Brandeis wrote to his wife, Alice. With the work of the term over he relaxed and grew old over night. A disillusionment like seeing the prima donna the next day in bright daylight with curlpins en dishabille.

Holmes put on a gray suit and soft-collared shirt—his regular attire for the undress season—and fidgeted uselessly about the house. In two days he and Fanny would depart for their summer home in Beverly Farms, Massachusetts, stopping in New York and Boston along the way. He had always been an anxious traveler, fearful of missing the train, forgetting his tickets, or leaving luggage behind. He called his condition train fever, and he felt it coming on now as Fanny and the servants packed their trunks and made last-minute preparations for the trip.

He went into his study and took out a sheet of paper. Dear Pollock, he wrote, beginning a note to Sir Frederick Pollock, the English barrister and legal historian whom he had known for half a century. The two men exchanged letters roughly twice a month, and Holmes hated to fall behind, preferring to shift the obligation of a response onto his friend. He got no further than a few lines, however, when Fanny came in to remind him that the messenger needed their tickets today and that their trunks would go to the station tomorrow. He felt his pulse quicken. Such things make one twitter, he wrote. "No, not one but me. He tried to calm his nerves, describing his two dissents at the end of the term, which he assumed the majority thought as ill-timed and regrettable as I thought the decisions. But it was no use. He was interrupted again, this time with instructions to go to the Express Office to pick up an order of whiskey from Baltimore. Congress had banned alcohol in the capital, he explained to Pollock, but the law was easy to get around by signing an affidavit before a notary public. The Notary Public, he added, like the domestic dog is found everywhere."

That was it, he could write no more. He sent his love to Lady Pollock, scratched his initials across the bottom of the page, and departed in haste, his fever rising.

*   *   *

On Sunday, Holmes and Fanny arrived at the station early. He had never missed a train and wasn’t about to start now. Fanny did once, he confided to his secretary, and she never forgot it. Union Station was packed that summer. Hordes of visitors poured in and out of Washington—soldiers, diplomats, civil administrators, temporary government workers—and nearly all of them passed through the white granite concourse at the edge of town. The crowds, and the shortage of coal, made it difficult to get tickets, and trains were often delayed, sometimes taking as long as twelve hours to reach New York. The government raised fares to discourage travel and pleaded with the public to stay home, but neither step had much effect. To make matters worse, the railroads had eliminated many of the old luxuries. There were few dining or sleeper cars anymore, and it was sometimes hard to find even a simple club car.

The journey to New York was also marked by reminders of the ongoing war. As the train rattled north, passengers could glimpse the massive shipbuilding plants that had sprouted up along the Delaware River. On Hog Island, just outside Philadelphia, thirty-five ships were under construction, while across the water two dozen torpedo boats were nearing completion. And as the train cut through the lowlands of New Jersey on its approach to Manhattan, dozens of munitions storehouses appeared on the horizon.

Holmes and Fanny disembarked at Pennsylvania Station while their servants went ahead with the trunks. When they had first moved to Washington, Holmes sometimes traveled alone to New York on weekends to shop, attend the theater, and flirt with a few young women he knew there. But those excursions had ended years ago, and now when he and Fanny passed through the city their schedule was less diverting. They called on a few acquaintances, strolled down Fifth Avenue, and browsed through the local bookstores, always on the hunt for a good summer read.

After three uneventful nights, they were back on the train headed for Boston. They had made this trip countless times before, always without incident, and there was no reason to think that anything unusual would occur this time. There was certainly no reason to think that the future of free speech might be

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  • (5/5)
    Other than some knowledge that his dissents in the early 20th century are the basis for the current and currently threatened status of free speech in the US, not an area I knew much about nor a person I was familiar with.Detailed, well annotated (but see below), it traces his changing views on the subject to his dissent in Abrams, which only led to the current view of Free Speech in the 60s. This book will lead me to a more general biography of Holmes, and a search for other works on the subject; those that would interest a legal layman. It is a work to be read by those claiming the heritage of a liberal arts education.On notes: Actual citation locations are missing due to a re-arrangement of the papers after the manuscript was complete. The final work should include a fuller reference, but even now enough information is included to find it with a brief Internet or Harvard search.
  • (3/5)
    Going into this book, I did not know much about the topics which were covered. O.W. Holmes was a mystery to me. I knew who he was, but not 'who' he was and what he stood for. I did not know much of the background on our right to free speech. I mean, how entertaining can learning about free speech be, right? Well as it turns out, it can be quite entertaining. Thomas Healy has done a great job with this subject. He has fleshed out who Oliver Wendell Holmes was, which is important in relation to the story and to his fateful decisions he makes. The cast of characters is not overwhelming and the tangents and opinions I believe were kept to a minimum. His history of free speech I thought was well thought out and gave me a good understanding of what the legal community thought of it at the time. His sources he used seem to have been chosen with care. His writing is clear and concise which is all one can ask for.Is this the greatest work of non-fiction you will read all year? Probably not, after all it still is not on the most exciting topic regarding not one of the most exciting figures history has produced. But it isn't all bad either and that is quite the credit to Mr. Healy. He took a potential lame duck and turned it into a prized fowl.
  • (4/5)
    This is a very thought-provoking account of how Supreme Court Justice Oliver Wendell Holmes altered his position on freedom of speech to pave the way for the more liberal interpretation of the First Amendment we now regard as canonical. In the short period between his decisions in Schenck v. United States, Frohwerk v. United States, and Debs v. United States, and his decision in Abrams v. United States, Holmes changed his mind and changed the law. It’s an interesting and important story for several reasons. One is the view it provides of the rather astounding effect that one Supreme Court Justice can have on the law of the entire country.  Holmes’s famous dissents arguing for an expanded view of First Amendment freedoms were not as well written as those of Brandeis, to name but one other advocate who wrote more clearly, but it was Holmes, with his far-reaching influence and “force of personality” that affected the public consciousness, and, as Healy writes, “gave the movement its legitimacy and inspiration.”  A second reason this story fascinates is the documentation of just how and why Holmes was influenced by his friends - a group of young intellectuals who came under government suspicion because of their backgrounds and liberal tendencies rather than because of any danger - either from intent or from effect - of their speech.  And finally, there are the compelling philosophical issues about the First Amendment itself over which Holmes struggled:  where should the line be drawn for freedom of speech?  If the country is at war, must “all rights of the individual... become subordinated to the national rights in the struggle for national life” as one critic argued?  Should war make a difference?  If so, why? What if the war itself is unjust?  And what about the difference between the intent of speech and its effect?  Is it fair to ignore one or the other?  So what exactly happened between Schenck, decided March 3, 1919, and Abrams, decided November 10, 1919? This entertaining book by Healy answers that question.Holmes was not initially in favor of toleration of other opinions. He didn’t believe in “natural rights.” (He had just recently written, “...there can be no legal right as against the authority that makes the law on which the right depends.” Kawananokoa v. Polyblank.) Also in 1907, his opinion for Patterson v. Colorado enshrined into law a "Blackstonian" view of free speech, which insisted that the purpose of the First Amendment “was to prevent all such ‘previous restraints’ upon publications as had been practiced by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” (After publication, however, as the author commented, “all bets were off.”)But Holmes had a number of very close friends - young, mostly Jewish intellectuals, a couple of whom he considered to be like his sons. Included among them were Harold Laski, Felix Frankfurter, Zechariah Chafee, and Louis Brandeis. These men had much more liberal ideas than Holmes on a wide array of subjects, including free speech, and they plied him with books to show him how their thinking had evolved. He happily read them, and engaged in debate with his friends, but resisted change. However, after World War I, the mood in the country took a turn for the worse. A “Red Scare” following the Russian Revolution swept America. Congress passed the Espionage Act in June 1917 and the Sedition Act in the spring of 1918. U.S. officials, led by the Attorney General and young J. Edgar Hoover, who in 1919 was put in charge of the “Radical Division” at the F.B.I., eagerly stoked the flames, embarking on witch hunts for anyone deemed "suspicious". The Washington Post, reflecting the mood of the nation, wrote, “Too long the government pursued the policy of waiting until some overt act was committed before talking steps against the anarchists...” And as the author pointed out:“Many of these [suspect] people, it was said, were teaching at universities, where they could corrupt the minds of the young. Many others were immigrants, particularly of Jewish ancestry. And for those unfortunate individuals who were both university professors and Jewish immigrants, well, the presumption of guilt was nearly automatic.”Laski, Frankfurter, and Chafee were professors at Harvard, and Brandeis was on the Supreme Court. Brandeis enjoyed relative immunity compared to the others, who soon found their careers in jeopardy. This was probably the best thing that happened to free speech. As Healy observes after Laski came under fire:“For now what had been merely an abstract question for Holmes over the past year was, suddenly, concrete and personal. The face of free speech was no longer Eugene Debs, the dangerous socialist agitator. It was his good friend Harold Laski, and Holmes’s views shifted accordingly - and dramatically.”It wasn’t just a case of Holmes liking these men and therefore feeling disposed to advocate on their behalf. He knew they posed no threat to the country, and that their ideas were not threatening but stimulating, and grounded in centuries of philosophical and legal debate. He argued in Abrams not only that one needn't worry because “bad” opinions would suffer accordingly in a free marketplace of ideas. He went farther, disavowing the idea that free speech is inapplicable during times of war, reemphasizing the “clear and present danger” criterion he had first articulated in Schenck. He had come to see the raft of cases brought under the Sedition and Espionage Acts as part of the government’s effort to impose uniformity of belief, and he opposed that effort. In yet another dissent, he wrote:“...if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate.”He still felt that “persecution for the expression of opinions seems...perfectly logical.” But now he added - as John Stuart Mill had maintained in On Liberty, a book recommended to him by Laski - that opening up beliefs to refutation will only strengthen them if in fact they cannot be proven to be unfounded.Evaluation: This is a highly interesting story and well-told, except, that is, for the prologue and first chapter. I thought the book would have been enhanced by omitting those two segments. Also, the author somewhat bizarrely and irrelevantly, as far as I could tell, decided to add information about Holmes’ love life. I saw no possible reason for it to be included.
  • (5/5)
    I opened this book, read the first few pages, closed it and then went to get a pencil. This, I knew, was going to be one of those books where I wanted to do a lot of underlining and note-taking.The Great Dissent follows the path that Oliver Wendell Holmes took from 1918 to 1919 as he wrestled with the issue of the kinds of speech the government protects and the kinds that it can prosecute. Author Thomas Healy does a masterful job of taking someone with a novice understanding of the points of view involved (like me!) and explaining the nuances of the differences. Through careful analysis of legal opinions and letters to and from colleagues, Healy exposes the arguments that Holmes considered as his beliefs transformed from the Constitution being society's protector to the individual's protector.The story weaves its way through the many free speech cases that reached the Supreme Court as a result of the Espionage and Sedition Acts enacted during the course of the First World War, and as much a part of the story as Holmes' journey is the story of his friends and colleagues who revered their old friend, but who had different opinions on free speech and wanted to sway Holmes to their way of thinking as he worked his way through the docket.One often believes that the way things are is the way things have always been and I always find it fascinating when I run up against evidence where that's not the case. So it was with this book as Healy chronicled the interpretation of the First Amendment over the years and the cases that determined the generally understood meaning of the Amendment at that time. Good history all around!I also enjoyed the serious, yet congenial back and forth that Holmes and his friends employed as they presented their arguments to each other. They all seemed to genuinely like each other while often having diametrically opposed opinions. It made me once again bemoan the present state of disagreement where two sides tend not to engage each other at all, but engage with their like-minded compatriots in calling the other side names. And Holmes' willingness to listen to opposing opinions and alter his on point of view when he felt it needed to be altered was also admirable.The Great Dissent is a fine, engaging book on a dense subject that still is accessible to the layman. Highly recommended!
  • (4/5)
    Healy's "The Great Dissent" wins the trifecta of historical writing: fascinating topic, solid research, and good writing. Like Louis Menand's "The Metaphysical Club," this is a "story of ideas in America" but with a specific focus on an issue of profound importance in American life: free speech. It may come as a surprise to many readers that the interpretation of the First Amendment that we take for granted today - that the government may constrain speech only when it presents a "clear and present danger" to society - is a fairly recent development. When first formulated by Justice Oliver Wendell Holmes in 1919, this was a somewhat radical notion that contravened the Supreme Court's much more restrictive standard at the time. It would not become the new orthodoxy for years to come. Holmes himself had upheld that more restrictive standard earlier, in confirming the 1918 conviction (and 10-year prison sentence) of Eugene Debs, the Socialist candidate for President, for a public speech criticizing US participation in World War I. It's the intellectual journey of this conservative jurist, from a conviction that government could restrict any speech that Congress might condemn to a more expansive notion of what kinds of speech should be protected under the First Amendment, that is the focus of this excellent book.Healy's task - illustrating how Holmes' thinking changed over time - is only possible because Holmes and his friends and colleagues put much of their debate and discussion in writing, in artful and intelligent letters. Several of those friends and colleagues - in particular Judge Learned Hand and the British political scientist Harold Laski - consciously set out to change Holmes' mind. Healy draws on their letters and those of several others to describe the intellectual debate and to illustrate the evolution of Holmes' thinking over time. He does an excellent job on both counts.Without that intellectual debate, it seems unlikely that Holmes would have moved away from the highly circumscribed view of free speech that the Supreme Court embraced at the time. Instead, the rest of the Supreme Court (and American society) eventually caught up with him and turned his radical notions into settled law. Of course, by the evidence in this book, Holmes stands convicted of being an "activist judge" willing to reinterpret the meaning of the Constitution in response to changing political and social circumstances. Many of the Founders, after all (at least those of the Federalist persuasion), did not view the Alien and Sedition Acts of 1798 as contravening the right of free speech; today's Supreme Court would.Those interested in our intellectual history and how the interplay of ideas has reshaped and reformed our legal foundation over time should find this book as interesting and entertaining as I did.
  • (4/5)
    It is hard to believe that our appreciation of the First Amendment and Free Speech has a very recent history. During World War I Congress passed the Espionage Act and the Sedition Act which the Supreme held constitutional in several respects during the immediate aftermath of WWI. “The Great Dissent” tells the story of Supreme Court Justice Oliver Wendell Holmes and his rather abrupt change in his thoughts about Free Speech over a one-year period of 1918-19. Justice Holmes became the early champion of Free Speech although his view was never accepted while he served on the Court. Holmes’ transition appears to have been affected by personal experience in that several of his closest friends found themselves to experience the wrath of public opinion (and to some extent the government) in their exercise of Free Speech. Holmes appears to have established the theory of “clear and present danger” that now is the legal standard for enforcement of laws relating to Free Speech. Thomas Healy does an admirable job of describing the events leading to Holmes’ change of heart as well as provide a concise history of the times that cause Congress to both act and react to the threats that we faced then. I’m not sure history has changed that much over the years – except for our understanding of the role of the First Amendment in our society. We can thank Justice Holmes for thinking different about the First Amendment.
  • (4/5)
    I bumped into Justice Oliver Wendell Holmes, Jr. when TCM showed a film based on his life, The Magnificent Yankee. He was one of the few former Supreme Court Justices I knew and remains one of the most quoted Americans. I thought I would like to know more about him.The Great Dissent: How Oliver Wendell Holmes Changed His Mind - And Changed the History of Free Speech in America by Thomas Healy was a great place to start. Though not a comprehensive biography of Justice Holmes, it certainly covers enough of Holmes early life to understand the type of man he was, and the context in which his mind and attitude were formed. Wounded three times during the Civil War while serving in the Union Army, once coming within a "sneeze" of death, Holmes attended Harvard and started his vocation as a lawyer.Holmes was quite conservative in the early part of his career, even after ascending to the Supreme Court. However, he did not allow his general attitude towards the law to act as a filter in other areas of his life. Louis Brandeis, who would eventually join Holmes on the Supreme Court, and Harold Laski, were two of the most noted progressives of their day. Both remain two of the more noble heroes of the twentieth century. Healy does a great job of creating a slow ascension to the pinnacle of Justice Holmes’s career - Abrams v. United States (1919). Our understanding and application of the First Amendment's guarantee of the freedom of speech. So much so, that at first I was quite shocked to learn of the very limited scope of the First Amendment prior to Abrams. Holmes dissent was joined only by Justice Brandeis. Holmes willingness to stand with such a small minority was even more courageous since he basically had to disagree with some of his previous rulings. To change course is always a bit frightening, as it requires an acknowledgment that one was wrong, or even more ominous, that our ability to remain on the path is outside our control. To face that decision from the heights of the Supreme Court must make it even more difficult.Since the 1987 defeat of President Reagan’s nomination of Robert Bork, we seem more and more unwilling to nominate, let alone confirm, anyone who might actually have strong principles that guide them in their decision-making. Whether right or left, originalist or a constitutional evolutionist, nominees no longer seem to be selected by their beliefs, writings, careers, or abilities, but rather chosen with the hopes that they are so generic, no one can possibly object to them. Rejecting men and women the caliber of Justice Holmes, Warren, Brandeis, Marshall and many other great minds to have served on the most esteemed bench, is I fear very dangerous. To safeguard the principle of our nation's birth that all men are created equal, is to place liberty at risk and not even know it.
  • (5/5)
    The writings of Supreme Court Justice Oliver Wendell Holmes are the basis of contemporary interpretations and applications of freedom of speech, but it took many years for great minds to convince him of its value. This fascinating, insightful story chronicles the unfolding of Holmes’s change of heart and mind on the First Amendment. A remarkable, engaging work of intellectual and legal history.
  • (3/5)
    Difficult to read---should have had Abrams dissent in appendix. emphasis on Laski perplexing or at least not developed very well. Good guide to first american cases
  • (4/5)
    Would have given it a 5-star review but for the painstaking laborious legal contexts and historical references for which a layperson like myself found difficult to muddle through. However, the author creates such suspense and excitement of the rebirth and ultimate redefinition of First Amendment rights that my desire to thoroughly understand it far outweighed my frustration of my obvious ignorance on the subject.

    My advice to a layperson of U.S. Law who is considering reading this book is to familiarize yourself with the following beforehand:

    1. Blackstonian view of free speech
    2. Espionage Act of 1917
    3. Sedition Act of 1798 and 1918
    4. Bolshevist
    5. Legal intent vs. lay intent as defined and understood in the 18th, 19th and 20th centuries.

    Once I educated myself on the above and with a dictionary of legal terms/definitions at my side, I read this book with great enthusiasm. The history of changes in the "meaning" of our First Amendment rights as we know it today is fascinating and powerful! "The Great Dissent" has sharpened my critical thinking skills while provoking self-examination of my own limited and prejudiced understanding of a constitutional right that I unwittingly generalized and took for granted.
  • (4/5)
    After reading the first chapter of this book, I wasn't quite sure if this was going to be one of those books where the author tries to be too clever and just confuses his reader, but then the book quickly became engrossing and very readable. This is an excellent book to read for someone - like this reviewer - who is halfway through law school and, as a result, has a better understanding of how law is actually made. Mr. Healy does an excellent job of revealing how Justice Holmes's personality and the events of the early twentieth century combined to change the world. Reading this book nearly a century after the great dissent, it's hard to imagine how the conception of free speech was so different, but readers of this book will have a much greater appreciation of the evolution of the law.
  • (4/5)
    When I began this book, I didn’t know much about Oliver Wendell Holmes. I knew he was a “junior”, his father a well known doctor. I knew he was from Boston. And I knew he was on the Supreme Court. That’s about it. The Great Dissent begins late in Holmes’ life. At the time, he was known for the speed with which he wrote his decisions and not always for the attention to detail that one might have wished for. (Pretty scary when you think he was writing for the Supreme Court!) His one saving grace appears to be that he retained a measure of intellectual curiosity. He cultivated friendships with younger men like Harold Laski, Learned Hand, and Felix Frankfurter who tried hard to introduce him to new ideas. It is to them, as much as to Holmes, that we owe our modern concept of free speech.This is an extremely well researched and readable book about the intellectual history of Holmes’ dissent in Abrams v. United States gave us the foundation of present day free speech. Holmes “switched” sides through a series of decisions all concerning the limits of speech and the ability of the government to curtail speech during war. Protesters against the wars in Vietnam and Iraq can thank him. If you are a lawyer, interested in the law, a believer in civil liberties or simply curious about the history of free speech, this is the book for you.