My Dearest Gentlefolk,
This week's passage arrives on a Tuesday, with thanks to the long weekend. As the first day of a shortened week, today remains an honorary "Monday", and so deserves the devotion of this brief creative interlude.
Today, I revisit Holmes, but in a different frame of mind. In 1919, the Supreme Court was faced with the conviction of five men for sedition (treason) for distributing communist pamphlets in New York following Russia's withdrawal from the European conflict. The Court upheld the convictions, notwithstanding the searching dissent of Holmes, in which Brandeis joined. What is curious however, is that the core of Holmes' dissent presents a line of paradoxical statements difficult to harmonize. Often cited simply for the proposition that our constitution represents a grand "experiment" in which the truth is considered more likely achieved by the free intercourse of ideas, the full paragraph in which this idea appears contains its own profound doubts and contradictions.
"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. 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."Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
How shall we reconcile the unquestionable power of words with the faith in unhindered discourse as the only context in which authentic truth can emerge? What sort of truth might Holmes have in mind? Holmes is widely cited as a "realist", for whom discourse generally, and political discourse in particular, is not the sort of thing capable of achieving certainty. But how shall we read the realist who persists in believing that the search for certainty is worth pursuing?
David Robert Foss
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