Holmes and presentism

[Volokh, Eugene]

        I agree that it's important not to put Holmes on too high a pedestal
-- but does it really make sense to criticize Holmes for taking the same
view in Schenck and Debs that *every other Justice* did, given that he ended
up being one of the Court's two leading advocates of broader speech
protection?

                Surely that *is* rather presentist, no?  As with all other
things, judgments of greatness -- or even goodness -- usually have an
implicit "compared to what?".  Condemning one of the earliest strong voices
for broad free speech protection for not seeing the light earlier doesn't
seem quite apt.  If, in Frank Cross's words, "Greatness is demonstrated by
one's ability to transcend the prejudices of the time and appreciate
standards (ethical, legal) that will come to be widely recognized only
later," surely it matters that Holmes did transcend the prejudices of his
time, was one of the two earliest Justices to do so, and not only
appreciated standards that came to be widely recognized later, but actually
helped create those standards and helped them be recognized.

        Eugene



Leslie Goldstein writes:

> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Tuesday, March 13, 2001 2:02 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Buck v. Bell and presentism
>
> as was sending Schenck and Debs to prison even though neither one of
> them had advocated anything illegal.  The guy was good at turning a
> phrase and had a usually healthy respect for democracy, but sometimes he
> went too far.
> Leslie
>
> Frank Cross wrote:
> >
> > Judging historic figures by present standards is often described as the
> > historical fallacy of "presentism."  Yet I think it's appropriate in
> > circumstances like this, for all but absolute cultural relativists.
> > Greatness is demonstrated by one's ability to transcend the prejudices
> of
> > the time and appreciate standards (ethical, legal) that will come to be
> > widely recognized only later.  Buck v. Bell is evidence of an inability
> to
> > do so and a mark against claims of greatness.
> >
> > Frank Cross
> > Herbert D. Kelleher Centennial Professor of Business Law
> > CBA 5.202
> > University of Texas at Austin
> > Austin, TX 78712
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010313/b0aa8781/attachment.htm