In the New York Times, Alan Dershowitz reviews the book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America, a piece of legal history by Thomas Healy investigating the origins of today’s First Amendment jurisprudence.
I found this excerpt of Dershowitz’ review intriguing:
Healy is closer to the mark when, toward the end of his riveting book, he summarizes the great dissent as having incorporated nearly all the major themes of his life his belief in the supremacy of experience over logic, his strange combination of confidence and doubt, his commitment to Darwinism, . . . his taste for battle. There were new ideas too, ideas he had picked up over the past year, from Hand and Chafee, Mill and Smith, Freund and Laski. It was almost as if Holmes had been working toward this moment his entire career, and now in one opinion in one paragraph of that opinion it had all come together in a brilliant expression of constitutional faith.
A basis of the idea of “free trade in ideas” and a “survival of the fittest” applied to argumentation is fundamental to American concepts of speech, and links heavily to the tradition of academic freedom as well. The review gives some flavor of how correspondence among legal scholars and judges was different in the early twentieth century than today…