Dec 11, 2014

Comments on Healy’s The Great Dissent

Prior to our meeting to discuss The Great Dissent one of our members, Norm, distributed the following comment:

Where I really part company with The Great Dissent is in the epilogue (in general, the book seemed rather shallow, but that may be because Healy was writing about a rather shallow person).

May I delve into the personal?  (I will anyway.)   In 1952 I was teaching at the University of Dayton, a conservative bastion (run by the Society of Mary) in an even more conservative city (it even had segregated YMCAs).  Senator McCarthy “had slithered onto the scene with his infamous lists and ruthless methods” (p. 246) and they were so flakey that I decided to give a series of special lectures skewering McCarthy himself.  I was surprised that the number in attendance was three times the number of students enrolled in my class (who is monitoring, and for what reason?) but it turned out well and I was not a subject of investigation, as were faculty at nearby Antioch College where the McCarran Committee had destroyed careers a month earlier.

Several years later I was taking some law courses and came across a peculiar set of First Amendment cases, including Dennis et al. and the Ku Klux Clan cases discussed on p. 249.  So I researched further and noticed they fit a whole series of cases during the McCarthy era where proponents of liberal causes were all jailed, but equally vociferous proponents of conservative or racist causes were set free under the “judicial restraint” doctrine.  “What a neat paper this would make” I thought, so I wrote about the Supreme Court being more political than judicial.

The instructor of the course didn’t know what to think, so he send me off to the dean – who happened to be Erwin Griswold, former US solicitor general and a ferocious bear when he felt the urge (even his daughter said so).  Griswold was busy, so told me to leave the paper and return in a week.  The next week I showed up expecting to be told it was publishable, and instead encountered every arrow in his quiver including “I don’t know how you got into this school, but you won’t stay long writing dreck like this!”  I apologized profusely, and when that was of no avail I apologized more, begging forgiveness for my stupidity, and still he ranted; so finally in desperation I pointed out that I had been in Ohio for some years and as everyone knows, erudition does not cross the Alleghenies.   With this his face flushed and he stood up and started shouting, and seemed ready to come over the desk and beat me to a pulp – so I ducked out the door and ran back to my instructor.  “What did I say wrong?” I asked.   He searched for words, and then said softly: “Well . . . for starters . . . Erwin is from Cleveland.”

I mention this only to challenge Healy’s contention that while Frankfurter sided with the Court majority against Dennis and other leaders of the Communist Party, “proving little more than that the defendants had formed an organization to teach the doctrines of Marx and Lenin”, he later found the courage to resuscitate Holmes’ clear and present danger test to release a Ku Klux Klan member who advocated violence against blacks (pp. 248-9).  This belief that Frankfurter and the Court grasped the meaning of the First Amendment is true only so long as one ignores the long string of cases in which the Court used “judicial restraint” in upholding lower courts’ prosecution of liberal speech, however benign, but used the “clear and present danger” criterion to find for conservative speech, however violent.  He ends his story too soon.   The whole story doesn’t support his contention that Frankfurter or the Court opted for equal treatment – not until the Warren Court do we see that.

Holmes himself was never really open to liberal thought.  Sonia Sotomayor he was not.  He wrestled with the First Amendment all the way through the book before being persuaded to support “clear and present danger”.  I take his clear and present doctrine as an aberration, based not on his understanding of the First Amendment but on the persuasion of close friends over a long period of time.

That is the problem with basically conservative thinkers, especially those accustomed to privilege.  Note how one lines up just the “right” people to carry their buckets: people who have worked together, or taught together, or have been friends since year one, and are in high places.  Holmes was a Boston Brahmin, educated at Boston Latin School and Harvard.  His wife was “the eldest child of a respected Cambridge family” who socialized with the daughters of the Boston aristocracy and whose father ran Boston Latin School; so all of his friends tended to be of similar stock, or were on the faculty at Harvard, or residents of the toney Beverly Farms.   He enjoyed the company – or the flattery – of very bright Jews for their intellect, but not blacks; and look at how Jewish friends were extremely servile in presenting him unaccustomed ideas.  But Holmes never visited the working class, nor conversed with them, nor read about their plight, nor was sympathetic with their needs.  For all his erudition, he was a snob.  He was born into class and never really deviated from the views of his class.  Holmes’ belabored twists of logic in cases brought under the Espionage Act of 1917 and the Sedition Act of 1918, as serious as the constraints on First Amendment rights as the McCarthy and McCarran activities 34 years later, brought forth only a mouse of jurisprudence but ended the career of the country’s foremost socialist and a presidential contender in Debs.  Holmes “three generations of imbeciles is enough” condemned Carrie Buck to forced sterilization in Buck v. Bell (1927) although later evidence shows that she was probably of normal intelligence; her argument that sterilization of institutionalized persons violated substantive due process fell to Holmes’ belief that state interest in maintaining a pure gene pool outweighed the interest of individuals in their “body integrity”; in short, that the science of eugenics provided a reasonable basis for law, a belief that the Nazis used to justify the murders of millions of disabled persons.

Brandeis got it right when he told Frankfurter that Holmes failed to “sufficiently consider the need of others to understand or sufficiently regard the difficulties or arguments of others (p. 103).

I thought the Harvard Lampoon’s “Alone at Laski” hilarious, as well as the faux autobiography (“born at age three and completed Oxford in twenty minutes”).  It is what people expect today from Jon Stewart or Saturday Night Live. Parts of the parody are clearly over the top, however, and appear to represent the anti-Semitism of a pampered non-Jewish student body.  But why did Harvard’s board of overseers (or its president, Lowell) take it so seriously?  A rigid conformity was expected of the upper crust; a groupthink that one breached only at his peril.  “I am heartily sick of America” wrote Laski, and well he should have been: although I wonder if he was any happier in the English system of privilege, even at LSE.

It was a time when even bright scholars were vulnerable if they lacked status, and the common man constantly vulnerable.  As a child of the depression I saw many good lives squandered; the hope of World War 2 was that all of that would be over, a much more egalitarian society would emerge.  Healy’s book leads to a conclusion that it did, owing to Holmes’ conversion.   I think that it clearly did not; the Court majority is packed once again with privileged conservatives appointed by privileged conservatives, and they are promoting a class-society as never before; the main difference being that this time it is based more on money than ancestry.

A Post Meeting Addition

The following was added to the discussion by member John following the meeting:

I did not mention last night that I attended several hours of a trial in 1957 that revolved around first amendment issues. San Francisco's City Lights bookstore had published the poem Howl by Allen Ginsberg and was selling copies. The poem contains references to use of illegal drug use and gay sexual practices. The manager of the store, Shig Murao, and the owner of the store and publisher of the poem, Larry Ferlinghetti, were both arrested and charged with distributing obscene literature.

I happened to be in San Francisco and knew Ferlinghetti and Murao, without any specific plans, and dropped in on the trial for a few hours.

My most vivid memory was of Jake Ehrlick, the defense lawyer. He was very famous (for representing Hollywood stars and as the model for Raymond Burr's Perry Mason in the TV show). Incidentally, he was born in Montgomery County. Ehrlick stood up and walked around the courtroom while the testimony was in progress, assuring that eyes were on him and he was controlling impressions left by the testimony.

The result of the case was that the judge decided that the poem had "redeeming social value" and that the defendants were not guilty. The case was covered in national media, and was the subject of a book by Ehrlick and a movie.

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