In that case, five young leftists were prosecuted and given lengthy prison sentences under the Espionage Act for throwing leaflets off a New York rooftop attacking President Wilson's decision to send U.S. troops into Russia after the Bolshevik Revolution. The court affirmed their conviction.
Holmes' dissent was the first in the series of minority opinions that would fix his place in the pantheon of the American Proposition's heroic servants.
"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 ..." Holmes wrote. "But 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.
If one considers the moral arc that runs from theologian to jurist on this Independence Day, one of the things that comes most readily to mind was the scorn heaped by some on President Obama when he said that empathy was one of the qualities he sought in his first nominee to the Supreme Court. Holmes actually anticipated such controversies in one of the celebrated Lowell Lectures he gave at Harvard:
"The life of the law has not been logic; it has been experience," he said. "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy avowed or unconscious, even with the prejudices which judges share with their fellow men, have had a great deal more to do than the syllogism in determining the rules by which men should be governed. The law cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."
Somehow, thoughts like Murray's and Holmes' celebrate our national proposition with a light that exceeds all of John Adams' "bonfires and illuminations."
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timothy.rutten@latimes.com
