The Atlantic’s Andrew Cohen has a piece here lauding Justice Oliver Wendell Holmes’ dissenting opinion in Abrams v. United States as “the most powerful dissent in American history.” It was a “relevant” and “powerful” dissent because it expressed the idea of “free trade in ideas” and demonstrated Justice Holmes’ recognition of the importance of free speech, after having slighted that notion in earlier cases.
The fact is, Abrams is not only not the most powerful dissent in American history—surely Justice Harlan’s dissent in Plessy takes that honor, or Blackmun’s dissent in Bowers, or Field’s in the Slaughterhouse Cases, or even Holmes’ own wrong but seminal dissent in Lochner—but it is also hardly the foundation for individual liberty that one might imagine given Cohen’s exaggerated praise. As I explain in my forthcoming book, The Conscience of The Constitution, the Abrams dissent is an example of how Holmes and his allies transformed the concept of individual rights into a set of permissions given by society to individuals for society’s own purposes—and revocable on those grounds, as well.
Note the opening lines from the dissent as quoted by Cohen: “Persecution for the expression of opinions seems to me perfectly logical.” This is a line that could never have been written by the pen of James Madison, or of Thomas Jefferson, or of any of the classical liberals who gave birth to the First Amendment. It is a throwback to days of monarchy or the Puritan classical republicans, but it has nothing in common with the principles upon which the First Amendment rests. Yet it is very typical of Oliver Wendell Holmes, who proudly told a friend “All my life, I have sneered at the natural rights of man.” He believed the principles of natural law and natural rights, which the American founders took to be self-evident, were superstitious nonsense. For Holmes, all law, all justice, all principles of right and wrong were nothing more than emotionalistic impulses, with no deeper foundation than a man’s taste for one brand of beer over another (the example Holmes himself used). We aggregate those arational tastes by voting or by warring, and those tastes for which people are willing to commit the most violence win out. And that is law. Law is nothing more than a command from the stronger individual or party to those who are weaker.
This may sound Hobbesian to you, but it’s not even that. Awful as Thomas Hobbes’ doctrines of absolute monarchy were, Hobbes was still an early “liberal” in two senses that Holmes was not. First, Hobbes did believe in at least one natural right—the right to self-preservation—and, second, he believed that politics was, at its deepest root, still an exercise of rationality. There were reasons for creating the social compact, in Hobbes’ view. Not so for Holmes. For Holmes there were no natural rights at all—only an arational desire to stay alive and an animalistic willingness to fight for it, as “a dog will fight for his bone.” Nor was political society the result of a rational calculus or contract; it was an historical happenstance, and political society was ontologically prior to our conceptions of justice and injustice, moral and immoral. Holmes had much more in common with Hegel than with Hobbes.
Holmes’ Abrams dissent goes on to explain why we do not persecute people for the expression of opinions: not, as the Constitution’s authors would have it, because a person has a right to his opinions and the expression of them, but because society benefits from an exchange of ideas: “the ultimate good desired is better reached by free trade in ideas.” Desired—by whom? By society in general, not by the individual. The free trade in ideas is only a privilege that is given by the collective to the individual to suit the collective’s goals. This is, of course, the exact reverse of the views of, say, James Madison, who wrote
What ever be the hypothesis, of the origin of the lex majoris partis [i.e., the majority’s authority to rule], it is evident that it operates as a plenary substitute of the will of the majority of the Society, for the will of the whole Society; and that the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members; the reserved rights of individuals (of Conscience for example), in becoming parties to the original compact, being beyond the legitimate reach of Sovereignty, wherever vested or however viewed.
For Madison, justice and injustice, right and wrong, were prior to—and therefore put limits on—the authority of the ruler, whether that ruler be a single president or the majority in a plebiscite. Not so for Holmes. In the world of his Abrams dissent, the majority comes first; it determines what is right and wrong; and it gives people the limited opportunity to speak their minds so that it can decide how to exercise that power. But that is not a right. That is a permission. If society has other goals in mind, then on Holmes’ premises, persecution would indeed logically follow.
Or compare Holmes’ Abrams dissent to Thomas Jefferson’s Statute for Religious Freedom. In Jefferson’s opening phrase, we learn that
Almighty God hath created the mind free; That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do; That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time; That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.
Note the phrases “assumed dominion” and “impious presumption.” In Jefferson’s view, the individual owns his own mind, and censorship or compulsion are assumptions of dominion over what that individual in fact owns. For Holmes, by contrast, the individual does not own his own mind; he is allowed to keep his mind only by society’s choice not to take it from him. It is the individual who “assumes dominion” over his own mind when he claims to have a right. This is not an exaggeration. Holmes—who likened the notion of rights valid against government to “shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist”—wrote in his Lochner dissent that “the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.” Protecting the individual against the “dominant opinion” was, of course, the explicit purpose of the Virginia Statute for Religious Freedom. But to Holmes, such a thing was perverse because liberty is only a privilege given to the individual by the majority.
This explains why Abrams was really not such a radical departure from Holmes’ previous views as Cohen believes. In Shenck and other cases where Holmes had been willing to send dissenters to jail, he did so for reasons that he again defended in Abrams: “we should be eternally vigilant to check the expression of opinions that we loathe…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.” This might seem a high barrier, but in Shenck—which Holmes never repudiated—he found that that barrier had been crossed. Shenck was expressing opinions, Holmes said, “in such circumstances…as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In each case “it is a question of proximity and degree.” And what was Shenck doing, that Holmes likened to yelling “fire” in a crowded theater? He was handing out pamphlets opposing the draft.
Abrams was not a change of mind on Holmes’ part. That mythology—the entire mythology of Holmes as a liberal and a defender of free speech—was devised by his acolytes, most notably Felix Frankfurter. Abrams was in reality entirely consistent with Holmes’ view that rights are permissions given by, and revocable by, the majority for whatever reasons it deems appropriate. A far truer picture of Holmes was given by H.L. Mencken, (who, by the way, actually was a free-speech hero) who recognized that if Holmes was a liberal, “then all I can say is that Liberalism is not what it was when I was young.”