In trying to figure out what Oliver Wendell Holmes jr. really meant in the several decisions of his I looked into over the years, I had to take into account that he wrote in favor of his interpretation of the theory of legal realism, a reaction to the ancient natural law theory of the law and other law theory that had to some extent been interposed between it and Holmes theory. I can't say my reading of the philosophy of law inspired me to have any confidence in any of the various isms that lawyers come up with. My guess would be that they do some of that to wile away the hours they would otherwise be reading some pretty dry stuff in the legal record, though I get the feeling Holmes did much of his theorizing out of an envy of the more exciting life of scientists. I think his widely shared faith in the applicability of scientific method to the sometimes extremely complex evidence and facts involved in the law was profoundly naive and, though he would violently deny it, a sentimentalized view of what science is good at doing and the limits of that. There was and is a lot of that going around.
I don't know if various lawyers and judges and justices and law professors (Holmes was all of those at various times) attachment and assertions of isms is for the better or for the worse, though I suspect any that pretends that what they're doing is science, including coming up with predictive strategies to prejudge what the outcome of a judges conduct will be, is going to generate some bad things along the way. I think Holmes' faith in science and the abilities of those in the biological sciences to discern hard truth did, in fact, lead to one of his worst actions in the Buck v Bell legalization of state forced eugenic sterilization. As mentioned, that led to American eugenics and eugenics propaganda being an inspiration for the Nazis and made it possible for them to cite the words of Holmes in defending what they had done when they went to trial. I think his faith in the efficacy of late 19th and early 20th century psychology and, perhaps more so, sociology, as well as Darwinism had a largely negative impact through its confirmation of his propensity to think attempts at regulation of business wrongheaded and, in the ultimate Holmesian invective "sentimental" and his skepticism about the government playing a role in righting injustice.
All isms will generate negative effects, people are not capable of generating a perfect ideology without negative consequences. The extent to which a judge or a "Justice" (I just hate that so often dishonest title) cleaves to an ideology will, I predict, generate the characteristic evils that are bound to come with making an ideology the controlling feature of your thought. One which pretends to have the reputed reliability of anything that gets called "science" in an academic setting will likely produce bad in ways that law governed by the asserted reliability of theological theory will. Only it won't admit that what it's doing is a matter of faith as religion admits.
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Holmes is famous for declaring that the life of the law was not logic but experience. That makes it even more amazing to me that his dissent in Abrams v. the United States has produced a string of some of the most experientially uninformed decisions applying a rote line about "free speech" to exactly those groups in question, the KKK (in the famous Brandenburg decision) and Nazis in the recent permission given to them to rally with guns and torches in Charlottesville Virginia and elsewhere. The experience of both groups is of violence, murder, the denial of rights the denial of equal rights and the denial of due process and everything else American lawyers and courts are supposed to deliver on. Holmes writing the very year that the Nazi party was forming, the very year that the first horrific returns from Marxists taking control of Russia were known, may not have had any idea of where such thinking would very soon lead. Though he very well may have already seen murderous results from legal and political applications of Darwinian thinking, especially if he'd read the writing of the eminent American biologist, Vernon Kellogg.
One thing we do know is he was very much aware of what America's proto-Nazism could produce through speech, through writing, through advocacy of racism, including sciency sounding arguments about the inferiority of Black People and other groups. The KKK was known to Holmes as well as the full flourishing of lynching, a crime which is intimately tied to speech, the speech advocating murder and the speech of racism. Holmes was a lawyer and a Justice at the height of lynching as a national epidemic. He had written one of the most important decisions allowing the Supreme Court to hear the only criminal trial conducted by the Court, the contempt case United States v Sheriff Joseph Shipp et al, in which the sheriff and some others were held guilty of permitting the lynching of Ed Johnson who had been granted a stay of execution by the court after, as so often happened, he was almost certainly wrongly accused of raping a white woman in Tennessee. The case declared powers for the Supreme Court which had never before been written, on the basis of its position at the top of the legal system in the United States, the "justices" acting as jurors. It established the principle that the Supreme Court could always intervene in the actions of lower courts, including state courts. Often, though not always, for the better.
It doesn't make any sense and is, in fact, irrational to pretend that the speech that encouraged the murderers of Ed Johnson to lynch him, or anyone else, is unrelated to the act of murdering him. If there had been any trial of the murderers the evidence of their speech, of speech encouraging the murder would have been part of the evidence in the case. In instances when it is members of racial, ethnic, gender or religious minorities and women are attacked or killed on the basis of their identity or on stereotypes imposed on them, that speech is the direct cause of the crime. That is why it can be evidence of the crime. In some of the most terrible of crimes of the 20th century, the Nazis genocidal murders, the scientific and legal theories of the Nazis were the cause of the crime. There is every reason to believe that if Nazism had been effectively suppressed by suppressing that speech, those publications of propaganda, speech which was articulated to lead to the discrimination against Jews, Poles, Slavs, members of other racial and ethnic groups and which, from the beginning justified violence and murder for the benefit of their murderers, that those crimes would never have happened. The law catching up with the Nazis, in some, hardly all cases and hanging many, though hardly most of those who killed millions is hardly some kind of evening of things. Preventing the Nazis from talking people into doing what they stated they wanted to would have been better. It may have even been better if the always imperfect law and its imperfect application had gone a bit overboard in the opposite direction, taking a chance on the equal rights of Jews, Poles, Roma, etc. to a peaceful life unblighted by the hate talk of those who hated them instead of the chance that was taken with their lives. The kind of chance that that bet by the ACLU placed and lost on the Nazis in Charlottesville, only it was betting with the lives and rights of their victims.
The law can't be 100% efficacious in producing truth or justice. One of the things I read about the ideology of legal realism cited a study that used linguistic analysis in relation to the International Court of Law that claims something like a 76% success in predicting the decisions of the court - it didn't claim that it could tell if the decisions in that percentage were judged rightly. There is no way to know what the results of hate speech will be, if the effect will be immediate enough to satisfy Holmes rules of declaring it could be restrained or held responsible, or if that speech will produce its poisonous results hours, days or even years later. The well trained lawyers of the ACLU and the Supreme Court can't seem to even understand that with their history of violence in the world and the United States, that the Nazis really mean it when they say they want to abolish equal rights, egalitarian democracy and impose oppression and violence and murder even as those murders are happening and the haters are winning elections through lying and propaganda. Pretending that Holmes misguided attempt to come up with a scientifically more justifiable method in that area before the Nazis showed what the murderous, genocidal effects of their ideology would be if they had the power to enact it was applied in an even more unrealistic and ahistorical assertion of it in the 1960s and up till today is entirely irresponsible and rightly discredits the lawyers and judges and law scholars who assert that.
Nazis have an absolute right to assert equality under the law, the rights of people enumerated in the opening of the Declaration of Independence and all else. But if they did that, they wouldn't be Nazis. Nazism is one of a number of ideologies that, by their defining ideas, cannot be made compatible with egalitarian democracy. As I stated before, I will never admit that anyone has a right to advocate the legal inequality of people, a right to advocate the denial of their rights, to advocate violence against innocent people, to advocate the discrimination against them, certainly no right to advocate their murder, individually or on a genocidal scale. Anyone who would call that a right privileges those crimes over the lives of their intended and often named victims. White, rich, people holding advanced degrees often from the most elite schools have often been willing to grant those privileges, when they were not the ones whose rights and lives were being demoted.
Egalitarian democracy has the right, if any government has rights, to protect itself, to protect egalitarianism and democracy, as vital any other aspect of national government. Those aspects of American democracy are as vitally important to the lives and right of The People as national defense. Those rights are often asserted for even the most horrible of governments.* Since egalitarian democracy exists to serve all of the people living under it, since it is really the only form of government which has the legitimacy that only the just consent of its citizens can grant a government, it has a right to protect its citizens against those who would take away that right to be governed by those exercising the power of government. But it is government which cannot be held to impossibly achieved perfection. Certainly no other form of government in history has been held to that ridiculous standard which is another of the inanely unrealistic assertion of many in the "civil liberties" industry and egalitarian democracy can't be declared illegitimate on that basis, certainly not when Nazism, white supremacy, neo-Confederacy (of the kind which holds sway, now) and anti-democratic ideologies are the very real possibility as an alternative. American history includes the proto-Nazism of slavery, of the Confederacy, of Jim Crow, of lynch law which coexisted with the Bill of Rights and by Supreme Court rulings. Even up to and including the lives of many reading this, it was found impossible for the federal government to pass anti-lynching laws.
There will not be any time soon that those anti-democratic, anti-egalitarian habits of thought will not present a very real danger to the lives and rights of millions of Americans on the basis of their race, their ethnicity, their gender and gender identification and their religion. The kind of bet that the ACLU, the Supreme Court have placed on a theory of free speech and free press, enabling those advocating those habits of thought, using those bad habits to destroy egalitarian democracy for the benefit of the haters and their would-be drivers is one of the most dangerous that could be made. At the time of Trumpian governance, brought to us through the media's creation of his public persona and through the lies told about Hillary Clinton for a quarter of a century. It is probably too late to avoid that price which will be paid with the lives of Black people, Latinos, Women, LGBT people, Muslims, Jews. For us, we're paying the price of that bet. It's just a question of how much the choices of those lawyers will cost us, not them.
* I've mentioned before the idiocy of John Kennedy citing Robert Taft's opposition to the Nuremberg trials on the basis of what the Nazis having done having been made legal in Germany and Austria at the time they committed atrocities as a "Profile in Courage". It is one of the daffiest appeals to principle that I've ever encountered. There was a real legal problem in asserting the legitimacy of the Nuremberg courts under just such ideas as a government, even the Nazi government, itself, having rights. That a neat, pseudo-scientific elucidation of the matter can't be invented doesn't, though, mean holding the engineers of mass murder accountable wan't an obviously legitimate and necessary, even essential act. Our "free speech - free press" permission to Nazis to make another try at doing what they will never stop trying to do is even daffier.
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