Man Without Qualities

Monday, October 17, 2005

Sailing To Washington II

A prior post took note of the dramatic shifts in Robert Bork's Constitutional philosophies over the years, especially in the areas of First Amendment and "substantive due process" rights.

A dramatic example of a brilliant legal mind (and Robert Bork is surely that) whose well thought out Constitutional philosophy changed dramatically while its possessor possessed a seat on the Supreme Court is Justice Oliver Wendell Holmes. His 1915 Fox v. Washington concerned an editor sent to prison for an editorial titled ''The Nude and the Prudes." The editorial criticized ''opponents of nude swimming," which violated a Washington State law making it a crime ''to encourage or advocate disrespect for law." The Supreme Court, speaking through Holmes, upheld the conviction because the ''article encourages and incites" -- albeit ''by indirection but unmistakably" -- a persistence in what ''we must assume would be a breach of the state laws against indecent exposure."

Addressing criticism of Fox, Holmes later famously told Judge Learned Hand that a state should be as free to protect itself against dangerous opinions as against the spread of smallpox: ''Free speech stands no differently than freedom from vaccination." Well, he held a worked-out Constitutional philosophy.

But not a philosophy that lasted - and we're better off for that. In a series of opinions starting in 1919, only four years after Fox, Holmes launched the the Supreme Court on to its current, vastly more activist, First Amendment journey. It has been said that Holmes virtually invented modern First Amendment protection of free speech.

Frankfurter? Bork? Holmes? All had elaborately worked out Constitutional philosophies. Each stunned supporters and opponents with directions subsequently taken.

Details. Details.

Postscript: There are those who view Justice Holmes' First Amendment voyage as beginning with his honoring the social Darwinian winners in the legislature, and ending with his honoring the social Darwinian winners in the marketplace of ideas. In substance, that is perhaps not much of a voyage. That is also a rather harsh view of the good Justice, but it may be a correct one. In any event, it is a view that certainly highlights just how much the effects of his views changed over time - even if substance of his Constitutional philoosophy changed less. That a smallish shift in the substance of a justice's Constitutional philosophy could result in such dramatic differences in effect should give a good deal of pause to those who emphasize the significance of Constituional philosophy. Perhaps such people would answer that such a sensitivity makes it is all the more important to get someone with the "right" Constitutional philosophy on the Court. But since Constitutional philosophy seems to be inherently a rather unstable variable - at least if Messrs. Frankfurter, Bork and Holmes are any indication - perhaps a better approach is to seek other attributes of a judicial candidate as indicating future performance on the Court.

In fact, the intense criticism of Ms. Miers' personality, focus on procedure and formal social structures and decision making style found in some criticisms of her candidacy suggests that her critics may already be doing exactly that.

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