“The Great Dissent”: How Justice Oliver Wendell Holmes Shaped the First Amendment
The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America by Thomas Healy, published by Picador (September 9, 2014).
Every so often you find a book that you never suspect will be one that you just can’t stop reading. Thomas Healy’s The Great Dissent is one of those books.
For a book about constitutional history and especially for a book about Oliver Wendell Holmes written by a professor of constitutional law, The Great Dissent is an unlikely page-turner. However, the author’s genius is his use of vivid descriptive detail to move the story forward.
Healy, a professor of constitutional law at Seton Hall Law School, has a skillful mastery of portraying the kind of detail that makes the characters come alive and jump off the page. He does this with a talent equal to the very best writers of history like McCulloch, Ellis and Chernow.
While there is no denying Holmes’ great intellect, he does not exactly appeal to twenty-first century constitutional thinkers.
He voted with the majority of the Court in infamous cases like…
Giles v. Harris 189 U.S. 475 (1903), refusing to order Alabama to register black voters even though Alabama was clearly violating the 14th Amendment; Schenck v. United States 249 U.S. 47 (1919), establishing the “clear and present danger” test enforcing the Espionage Act of 1917; Debs v. United States 249 U.S. 211 (1919), jailing the former Socialist candidate for President for obstructing the draft during World War 1; and Buck v. Bell 274 U.S. 200 (1927), legitimizing eugenic sterilization laws.
However, notwithstanding his rather abysmal voting record by today’s standards, Holmes’ dissenting opinion in Abrams v. United States (1919), considered “the great dissent,” is one of the most famous in the history of the United States Supreme Court. That dissent not only reflected the progressive view of free speech in it’s time, but it forever changed the direction of the Supreme Court’s first amendment jurisprudence.
In that famous dissent Holmes said, “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…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. . . . 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.”
The Great Dissent analyzes the seismic shift in Oliver Wendell Holmes legal thinking and how he adopted the progressive view of the first amendment. As the author demonstrates, Holmes articulation of that view set a new paradigm for free speech in America.
Prior to the decision, Justice Holmes was a staunch supporter of government censorship of controversial speech. However, he reversed course in Abrams v. United States (1919), arguing that the First Amendment should protect all expressions “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.”
Relying on historical documents and a gift for storytelling, Healy goes into the mind of Oliver Wendell Holmes and quite successfully analyzes his thought process and what likely influenced his thinking when he wrote the dissent. It details how conversations outside the walls of the Supreme Court with young legal minds like Learned Hand, then a federal judge, and Harold Laski, then teaching at Harvard University, swayed an old justice to rethink his First Amendment views.
As described by the author, “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.”
When writing legal history, many authors rely on conjecture based on the events that are current to the subject written work. Healy took a different approach by identifying the people and the ideas around Oliver Wendell Holmes at and just before he wrote the dissent. His analysis of the views of those people and the evidence of their impact on Holmes is more than compelling. It is definitive.
The New York Times agreed, writing in its review: “Riveting… Healy’s informative and readable account deserves an honored place in the intellectual history of the Supreme Court.”
Healy’s writing is an example for all legal writers. Anyone with modest training and intelligence can write a law review article, but explaining the law in a way that captures a readers’ attention and imagination, moves them emotionally and leaves the reader with an idea that changes them is genius. The Great Dissent is genius!