In announcing his nomination of Sonia Sotomayor for the Supreme Court, President Obama made the following comment, “For as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience; experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live.”
The reference to Justice Holmes was telling, I think. Holmes is the model jurist for many Progressives, due to the fact that he was utterly incapable of identifying any limits whatsoever on the power of the state over its citizens. His legacy was, by and large, overtly hostile to individual liberty. Based on some of Sotomayor’s comments and her record as an appeals court judge, I suspect she will continue in the Holmesian statist tradition. And I’m positive that President Obama expects no less. But since the President seems to hold the wit and wisdom of Oliver Wendell Holmes in such high esteem, perhaps it would be worthwhile to take a closer look at a few of the quotes from the Supreme Court’s most frequently cited Justice.
No doubt you’ve heard the phrase, “Shouting fire in a crowded theater.” It’s one of Holmes’s most memorable lines. It comes from the Schenck v. United States case, for which Holmes wrote the unanimous decision. Here’s a slightly fuller excerpt from that decision:
“The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
The “shouting fire” line has clearly survived the test of time, ranking right up there with, “Four score and seven years ago,” and “May the force be with you.” It has been used by statists from all across the political spectrum as some sort of talisman to ward off debate and quash unpopular speech. Upon closer analysis, however, we find that this little gem is not all it’s cracked up to be – particularly when we consider what Holmes and the rest of the Supreme Court actually decided in the Schenck case.
The facts of the case are fairly straightforward. During World War I, Charles Schenck was arrested for distributing flyers protesting the draft, and the Supreme Court upheld Schenck’s conviction. Holmes’s “fire in a crowded theater” line was meant to support his finding that Charles Schenck’s right to free speech did not extend to criticizing government policy. Holmes was dead wrong in this case, yet his quip is still held up as though it had been brought down from the mountain on stone tablets.
Another one of Justice Holmes’s famous quotes comes from the Buck v. Bell case, in which this paragon of jurisprudence discovered the state’s right to force sterilization on those individuals the government deemed “defective” in some way. Delivering the majority’s downright ghoulish opinion, Holmes wrote,
“The judgment finds the facts that have been recited and that Carrie Buck ‘is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,’ and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”
Creepy much? And as if any further proof were needed to solidify Holmes’s statist bona fides, there’s always the following:
“I like to pay taxes. With them I buy civilization.”
An interesting take on the subject, don’t you think? Say what you want about taxes, they are by their very nature coercive, and few people actually like to pay them. But that’s not what I find troubling about this particular quote. The problem here is that Holmes has the link between taxes and civilization completely backward. Taxes are not the price we pay for civilization. At best, they are the price we pay for our lack of civility. After all, a civilized society should not be characterized by the degree to which it cloaks and institutionalizes coercion. A civilized society should be characterized by the degree to which it eschews coercion altogether and seeks peaceful, voluntary solutions instead.
Of course, that’s just my (dissenting) opinion.
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June 10, 2009 at 10:58 pm
[...] Originally posted here: The Wit and Wisdom of Oliver Wendell Holmes [...]