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Author Topic: Key Historical Events ...THAT YOU MAY HAVE NEVER HEARD OF  (Read 8310 times)

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Re: Key Historical Events ...THAT YOU MAY HAVE NEVER HEARD OF
« on: November 14, 2013, 11:19:46 pm »
Key Historical Events; That you may have NEVER HEARD OF.

The Great Dissenter: Oliver Wendell Holmes Jr.

Ninety four years ago, on November 7, 1919, as federal agents launched a nationwide raid on the homes and meeting halls of Russian immigrants, three members of the United States Supreme Court visted Holmes at his home a few blocks from the White House. Unlike the agents sent by J. Edgar Hoover, the justices were not hunting for communists. They were there to call on their colleague Oliver Wendell Holmes Jr., Boston Brahmin, Civil War veteran, and sage of the common law. But their visit, unusual and unexpected, was linked to the larger mission being carried out that day, and, to the justices at least, it was every bit as important. 1

Holmes was a learned man with more than ten thousand volumes packed on his bookshelves. They included mostly law, philosophy, and history, but also the occasional detective story or racy French novel.1  Do you think he might have had a Sherlock HOLMES novel? The Hound of the Baskervilles  was published in 1901"hailed as "the greatest mystery novel of all time  and The Valley of Fear in 1914 (a fresh murder scene that leads Holmes to solve a long-forgotten mystery) so it is possible.

I would bet on it because of this little nugget of history I dug up:
Originally, Doyle named his detective Sherrinford Holmes, after Oliver Wendell Holmes - and named Holmes's sidekick Ormand Sacker. But during the three weeks it took to write the story, Doyle renamed the characters Sherlock Holmes, after a cricket player he had once played against, and Thomas John H. Watson, after Patrick Watson, a colleague of Dr. Bell's.
Oliver Wendell Holmes was a famous doctor.2 He was the father of our Oliver Wendell Holmes Jr.!   How about that! England had a fictional Holmes solving cases while the real Holmes' son was actually involved with law and order as a judge in the USA!

So why am I going on about something seemingly unrelated to the high court Dissents of Holmes in general and the one the three other high court judges just mentioned are "concerned" with? Because I have read Sherlock Holmes and Sir Arthur Conan Doyle always attacked greedy people and unethical, predatory business practices in his writings through Holmes and Dr. Watson. Although it is speculative, I suspect some of that rubbed off Holmes. You DON'T have books of fiction, being a jurist, in your library just because the author gave Sherlock the "Holmes" handle to honor your daddy. A fictional book pushes a philosophy, not just a good story. Sir Arthur Conan Doyle was a Liberal (he had stood unsuccesfully as a Liberal Unionist parliamentary candidate in 1900 and 1906,).3 

I think Holmes, unlike many industrialists and fellow jurist stuffed shirts, saw though the self serving "conservative" view that the government's job was to let employers run ragged over the common man in order to exact a higher profit, regardless of the toll in human misery. Nevertheless, I believe this type of logical thinking was a work in progress for him throughout his life. He was NOT considered a sentimental person. 

Back to the 1919. That was a significant year in American History. That year Franklin D. Roosevelt was caught having an affair with a Miss Mercer by Eleanor. Eleanor offered to divorce him. Franklin's mother promised to cut him off from the family money if he divorced Eleanor. Franklin D saw "reason" and the rest is history. He was lucky he did. Imagine being married to his new wife a little over a year later when he was struck with polio. Do you think Lady Mercer had the stuffing to insert a glass tube in his **** and give him an enema EVERY DAY due to his paralysis?4 I doubt it.

But I continue to digress. Sorry, but I want you to get the picture of how things were in late 1919. World War I was over. A lot of people were dying from the Influenza Pandemic that came in three waves (1918 and throughout 1919). 5

In 1918, life expectancy for men was only 53 years. Women’s life expectancy at 54 was only marginally better.6

Sure, there were people enjoying a better standard of living and moving around more in their Model T "Tin Lizzie" Fords but these were still the privileged few in American life. Most Americans had no toilet and ignorance of proper sanitary habits caused a lot of dysentery. Oliver Wendel Holmes Jr. had almost died of dystentery during the Civil War.1 I'm sure seeing all the sickness around moved him to be more sympathetic to the plight of the common people. He was, above all, a no nonsense, honest man.

The three justices explained the reason for their visit. The day before, Holmes had circulated a DISSENTING opinion in a case the Court had heard two weeks earlier. It was an important case testing the government’s power to punish the so-called anarchists and agitators who had spoken out against the recent war. For most members of the Court, elitist to the hilt, it was an easy case. The high court judges were members of an American elite that certainly did NOT consider the common man equal to them, or to the government, as far as rights of any sort. They automatically and unthinkingly accepted the right of the government to punish such "troublemakers". Freedom of speech was not absolute (to put it mildly), and if the defendants had intended to disrupt the war, that was tantamount to "criminal" (anti-establishment) activity so they deserved to be treated as criminals. 1 It's amazing how little has changed in 2013

The majority of the Court, and anyone who followed its decisions, might have expected Holmes to agree. After all, just nine months earlier he had written three opinions for the Court saying pretty much the same thing. One of those cases was an appeal by Eugene V. Debs, the leader of the Socialist Party and a frequent candidate for president, who had been sentenced to ten years in prison for a speech he had given in the summer of 1918.1

Even though he said nothing that explicitly urged interference with the war, he did praise party members who had opposed the draft. For Holmes, an old Civil War Soldier, that had been enough. In a short and dismissive opinion, he had accepted the jury’s verdict that Debs meant to illegally obstruct military recruiting and had affirmed his conviction.1 Holmes was doing his DUTY as a member of the US elite to defend the war effort, regardless of how the people felt about it. He was certainly not a pacifist.

So when the Court heard arguments in the anarchists’ case, few people expected Holmes to side with the defendants.

But something had changed. Instead of voting with the majority, Holmes said the convictions should be reversed.
The defendants had no intent to undermine the fight against Germany,
he explained.
They were merely upset with President Wilson’s decision to intervene in the Russian Revolution..
1 Check that word, "merely", in regard to the actions of a U.S. President! That's a rather significant adjective to me for a jurist that hitherto mostly towed the establishment "line".
Besides, he argued, their speech was protected by the First Amendment. 1To us in modern times, that sounds like a no-brainer bit of boiler plate. However, as you will see, it was a rather revolutionary statement.

Many of us on the internet have repeated over an over that the Constitution had a lot of fancy rhetoric that applied to such a narrow slice of the nation that, for all practical purposes, it was a propaganda tour de force. It looked great on paper but the common person didn't have any chance whatsoever to demand the rights clearly written on it. THAT was the reality in the USA.
The brief bit of jurisprudent sanity the Civil War produced with the 12th, 13th and 14th Constitutional Amendments was noble legislation. But it was quickly renedered as toothless as the rest of the Constitution for the average American in general (and freed slaves, for whom the Amendments were mainly written, in particular 7).

In spite of the high sounding Constitutional rhetoric about “Congress shall make no law . . . abridging the freedom of speech” the First Amendment at that time was a nice piece of pretty wording (like "all men are created equal" STILL is). It was a toothless bit of inspiring rhetoric, nothing more. 1 And you thought that was a modern problem?

The High Court itself had never ruled in favor of a free speech claim, and lower courts had approved all manner of speech restrictions, including the censorship of books and films, the prohibition of street corner speeches, and assorted bans on labor protests, profanity, and commercial advertising. Even criticism of government officials could be punished, the courts had ruled, if it threatened public order and morality 1(and you know how the "threat" is in the eye of the cop or official that wants to jail you).

But now, with the country gripped by fear (i.e. scaremongering propaganda in the service of capitalism) of the communist threat, Holmes was proposing something radical: an interpretation (rather than the hitherto "interpretation"  ::)   that basically ignored the wording) of the First Amendment that would protect all but the most immediately dangerous speech.

His opinion was passionate and powerful, especially the long concluding paragraph. The delivery was masterful. He actually began the opinion sounding like he was making the case against free speech, not for it:1

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. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises

Up to now he sounds like a hard core elitist bigot (as in, By God I'm RIGHT and I will NOT ALLOW foolish and irrelevant dissent!). But that's not it at all. As you will see, his point is that there is a CLEAR DIFFERENCE between obstructionist speech uttered with the purpose of sowing discord and what he will now mention. In other words,  it's perfectly correct, logical and lawful to censor mendacious or duplicitous propaganda. HOWEVAH...

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—that 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.

That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, 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.

Agelbert NOTE: Unfortunately, some phrases in the above wisdom were subsequently hijacked and turned upside down for the benefit of predatory, consciense free capitalism:

1. "Free Trade" in ideas - There is no such thing when money rules the media by elite power over government regulation or the lack of it - e.g. selectve enforcement, etc.  >:(

2. "Accepted in the Competition of the Market" in regard to TRUTH is an idealistic bit of fantasy when there is NO free market competition of ideas or truth - i.e. a "level playing field" for publishing and media access that looks more like an alpine slope! - BECAUSE elite power controls who gets to operate with impunity and who gets crushed through selective enforcement.  >:(

IOW, in the USA we have a RIGGED market and a RIGGED media and, OF COURSE, those doing the RIGGING insist it is a FREE market and a FREE press. Cui Bono?  )

Back to Holmes' Historical Dissent

Holmes understood exactly where the rhetorical rubber meets the road as far as freedom of speech. He was very much at home with the populist notion, though he was not much of populist, that unchecked government power meant tyranny.

It's clear to me that he had a problem with his fellow judges wanting to give government unrestrained power over the people in regard to freedom of speech.

The court he was on was an absolute travesty for the working man and a great friend of predatory capitalism's abominal working conditions including slave prison labor in mines (mostly blacks picked up in the South on "vagrancy" or other trumped up charges - Then it was dangerous to be black. Now it's still dangerous but being white and smoking pot has been added to the "business" model) and child labor abuses. We had the number one industrial accident rate in the WORLD while that court (and a few before it) presided over our "laws". 

1908 bottle Factory. Note the child labor9

Recent race riots, labor strikes were making the elite nervous. And a bomb had exploded on the attorney general’s doorstep—the opening strike, the papers warned, in a grand Bolshevik plot.1 WE KNOW today those race riots and strikes were a cry for justice. We also know that our government officials in general, and Mr J. Edgar Hoover in particular, knew exactly how to get people stirred up by blaming a bomb on x, y or z scapegoat target in order to get more funding for his growing FBI empire.

I don't know who placed that bomb. But looking at it from today's revelations, I think it was an inside job. Like 9/11 today, they needed a pretext to crack down. If it didn't just happen, I'm sure J. Edgar was up to the task of rigging a bomb and blaming it on the commies, anarchists or whatever pejorative name the establishment had for people who wanted justice and weren't afraid to make their voices heard.

Now Holmes' dissent was serious feather ruffling for the elites. Was he now going to give "comfort to the enemy"?1

What did his fellow judges do? They pulled the old "National Security" trick on Holmes to "get him to see reason". The nation’s security was at stake!1, they told Holmes. He was urged to close ranks and set aside his personal views. They weren't belligerent. He was, after all, one of them and they respected him. Holmes listened thoughtfully. He had always respected the institution of the Court and more than once had suppressed his own beliefs for the sake of unanimity. 1

But this time he felt a duty to speak his mind. He told his colleagues he regretted he could not join them, and they left without pressing him further.1
Three days later, Holmes read his dissent in Abrams v. United States from the bench. As expected, it caused a sensation. Conservatives  denounced it as dangerous and extreme. (Another thing those CONS had in common with the ones in 2013 ). ][img width=3= height=30]http://www.createaforum.com/gallery/renewablerevolution/3-141113183729.png[/img]Progressives hailed it as a monument to liberty. 1

Free speech stopped being a Constitutional rhetorical flourish to be used as an elite fig leaf to claim OUR elites were "different" from the elites in other countries (until 9/11, of course).

Agelbert NOTE: Admittedly, the Constitution DID do away with landed gentry and titles. Of course, humans being clever rascals, new forms of wealth hogging dynasty tricks accomplished the same thing without titles. But that's another story. 

The justices’ visit to Holmes isn't just a remarkable piece of Constitutional history. Going to a judge's house to disuade him from a dissenting opnion just wasn't done. :o1 That these judges were involved in such intrigue smacks of industrialists strong arming them to make sure the "rabble was kept in check". War profiteering magnates had already made fortunes on the war and they did not want anyhting upsetting theAmerican race to empire though profitable wars (The predators are always thinking ahead). ;)

There is no known High Court History of such a personal appeal to one justice by a group of his colleagues. That it took place in the privacy of Holmes’s study, in the presence of his wife (the justices sought her help with their appeal!) only heightens the intrigue.1

Second Half of OWH Jr. Article

« Last Edit: November 14, 2013, 11:53:56 pm by AGelbert »
Light is sown for the righteous, and gladness for the upright in heart. Ps. 97:11


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