Oliver Wendell Holmes took most of the credit for carving out a fundamental right to free speech during the red scare. In the string of cases regarding Eugene V. Debs, Abrams, Schenck and other unsavory activists, Holmes subtly shifted positions and determined that government had no authority to imprison socialists solely because of their political beliefs. Holmes receives much credit today for his radio ready quote from the days before radio, “I disagree with the words that you say yet I will defend, to the death, your right to say them.”

In an often overlooked footnote to history, however, it is certain that Hand and Holmes shared a long train ride from New York to Boston just two weeks before Holmes handed down a vitriolic dissent in Schenck. In that dissent, Holmes argued that the U.S. constitution extended a cloak of protection far beyond the archaic British model (freedom from censorship prior to publication).

Reliable sources argue that Holmes had taken a lot of heat from his students for joining the majority in Debs, and that the government in fact should have no authority to punish revolutionary speech alone, when it is unaccompanied by violent attempts to overthrow government itself. Holmes liked this idea, but did not know how to get there in a fashion consistent with the court’s standing precedent. During that train ride, Hand devised the logical escape hatch: argue that Holmes had been vying for punishment of the action the entire time and that if his cohorts on the court were affirming convictions based on socialist speech and thought alone, well then - he had in reality been dissenting all along.

Brilliant. Although Holmes did not live to see the day when his elegant dissents became law, they eventually did so, in Sullivan v. New York Times (1964 I think). The masterful opinion by Brennan carried a majority of the court and entrenched the First Amendment to where it is today .

. . . or where it was anyway, prior to President Bush’s classification of U.S. citizen Hamdi as an enemy combatant. This allowed the military to seize him at Chicago/O’Hare and hold him on a Navy Brig off the coast of Georgia for years without access to counsel or any set trial date. The current court has done a good job dodging this issue, although they will likely have to own up to it soon. According to the sitting administration, the “war on terror” has many fronts and no ascertainable end. “The freedoms enumerated in the constitution were not designed for such an open-ended conflict, nor can they be defended when the enemy has neither face nor name.”

Perhaps we should all be thankful that a constitutional law professor will be taking over.