Holmes and presentism

[Leslie Goldstein]

I credit Brandeis with the shift; although (except for Whitney) Holmes
was the better spokesman for the improved cause.  Yes, I think it is a
fair criticism, because he is , in my view , inappropriately credited
for strong support for freedom of speech , as is his c and p danger
test, when in fact, except when the political climate was ripe (the
thirties and forties when socialism was chic and USSR our wartime ally),
the c and p danger test protected hardly any dissidents.  In other
words, he should be respected for what he was: a sincere defender of
majoritarian democracy, and not for what he was not, a great civil
libertarian.
LFG

"Volokh, Eugene" wrote:

>
>
>         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
>
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