Eugene Debs v. Oliver Wendell Holmes Jr.

Damon W. Root | June 12, 2009

Anthony Lewis has a very interesting essay in the latest New York Review of Books discussing Ernest Freeberg's Democracy's Prisoner: Eugene V. Debs, the Great War, and the Right to Dissent (subscription required). Debs was the radical union leader and perennial Socialist Party presidential candidate who spent three years in prison for violating Woodrow Wilson's vile Espionage Act, which had made it illegal to criticize the government during World War I. As Lewis puts it, Freeberg "shatters any illusion that Wilson was a liberal-minded president." Indeed, even after the Great War was over, and in the face of significant pressure, Wilson refused to pardon Debs. Presented with an amnesty proposal for Debs and other political prisoners, Wilson declared, "Suppose every man in America had taken the same position Debs did. We would have lost the war and America would have been destroyed." Republican Warren G. Harding, Wilson's successor, freed Debs on Christmas Day 1921.

But Lewis' real focus is on the Supreme Court, which unanimously upheld Debs' conviction on the count of "obstructing and attempting to obstruct the recruiting service of the United States." In reality, Debs had a given a non-threatening anti-war/pro-socialist speech before a bunch of Canton, Ohio left-wingers out for an afternoon picnic. Unfortunately for Debs, there was also a federal agent in the crowd. As Lewis writes:

The Court's decision was unanimous, and the opinion was written by Oliver Wendell Holmes Jr., who more than any other justice was admired by progressives in the country. Holmes was admired for his powerful dissents when the Court struck down progressive legislation that, for example, forbade child labor and set maximum working hours for bakers. Legislatures must be given broad discretion to take actions that we may not like, he said in those cases; now he took a similarly laissez-faire approach to the Espionage Act limiting free speech.

As I've previously argued, Holmes and his progressive fans advocated granting the state vast new authority to manage all walks of American life while at the same time weakening traditional checks on government power. This mixture was ripe for abuse. The great journalist and critic H.L. Mencken was among the contemporaries who recognized it. Reviewing The Dissenting Opinions of Mr. Justice Holmes for the American Mercury in May 1930, Mencken accurately denounced Holmes as "no more than an advocate of the rights of law-makers":

He held, it would seem, that violating the Bill of Rights is a rare and difficult business, possible only by summoning up deliberate malice, and that it is the chief business of the Supreme Court to keep the Constitution loose and elastic, so that blasting holes through it may not be too onerous....

If what he said in some of those opinions were accepted literally there would scarcely be any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.

Comments

|6.12.09 @ 6:11PM|#

now he took a similarly laissez-faire approach to the Espionage Act limiting free speech.

laissez-faire, an economic philosophy, has nothing to do with this, but it's clear Holmes' intellectual descendants on the left are trying to sully perfectly good words again.

|6.12.09 @ 6:40PM|#

Indeed, even after the Great War was over, and in the face of significant pressure, Wilson refused to pardon Debs. Presented with an amnesty proposal for Debs and other political prisoners, Wilson declared, "Suppose every man in America had taken the same position Debs did. We would have lost the war and America would have been destroyed."

Yo, fuck Woodrow Wilson.

robc|6.12.09 @ 6:43PM|#

Anyone willing to sponsor a time machine for me to go back and assassinate Wilson? Or at least kick him in the nuts?

1. We had no business in WW1. Losing WW1 wouldnt hurt the US.

2. Ignore #1, lets suppose Wilson's 2nd sentence in that quote is accurate (it isnt, but hang on). If so, and IF every man had taken the same position, then we would have deserved to be destroyed.

So, either way, I say no problem.

So, as Seamus said, Fuck Woodrow Wilson.

And while we are at it Eugene Debs too, but for different reasons.

robc|6.12.09 @ 6:45PM|#

Yo, fuck Oliver Wendell fucking Holmes too.

While Im back in timing assassinating Wilson, Im willing to take a shot at Holmes too.

Lester Hunt|6.12.09 @ 7:04PM|#

I have long been a fan of that Mencken quote. The whole review, eminently worthy of your perusal, can be found in the first Chrestomathy, p. 248.

MNG|6.12.09 @ 7:09PM|#

OK, this is like the third post we've had denouncing Holmes in particular for joining opinions that all the other justices on the Court joined. It's supposed to go like this:
1. Liberals like Holmes
2. Holmes did bad
3. Liberals like bad! Neener-neener!

But of course, it would be better to say
2. Holmes often did bad TOO

The whole idea of progressivism is that it, you know, progresses. A progressive in 1920 would not be much of a progressive today. One today who wanted to return to the heady days of 1920 would, of course, be a conservative.

Liberals don't like Holmes because of his shitty opinions in cases like this, the Carrie Buck case, the Philipinne cases, etc. We realize that in those areas he, and the rest of the nation's justices, were horribly mistaken and backward. What we like him for is that, unlike the justices he ruled with in those cases, he at times broke in the right direction (such as his groundbreaking work in laying the basis for the First Amendment freedoms we enjoy today, thanks to some other very liberal justices along the way).

|6.12.09 @ 7:43PM|#

"First amendment freedoms we enjoy today?" Like, say, the freedom to go "ooh" and "aah" at the sight or sound of Obama?

MNG|6.12.09 @ 7:48PM|#

LM
You don't think our First Amendment speech freedoms are considerably better than those that existed in, say, 1925 America, or in most of Europe today?


I sure do. Not perfect, but better.

TallDave|6.12.09 @ 7:48PM|#

He held, it would seem, that violating the Bill of Rights is a rare and difficult business, possible only by summoning up deliberate malice,

Summoning Deliberate Malice? What's the cast time on that? Is there a cooldown?

Nemo|6.12.09 @ 7:50PM|#

Let's not forget that this is also the same odious jurist who said that "three generations of imbeciles are enough" when upholding eugenics laws.

"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."

FUCK Holmes and the progressives who love him.

Elemenope|6.12.09 @ 7:58PM|#

Of course, Holmes later reversed his position on this issue in Abrams.

For all the people mentioning that you could hear a fucking pin drop.

And then when people finally do get around to that, it is "yeah, but he dissented in Abrams for the wrong reasons. So, nyah!" Usually followed by a raspberry.

FUCK Holmes and the progressives who love him.

This whole thing reminds me of conversations about Martin Luther:

A: "Well, without him breaking the monopoly of church power, there probably would be no Enlightenment, no framework for rights as we understand them, no modern world."
B: "Yeah but he was an antisemite, so fuck him."

Like the second in any way changes the facts of the first.

Cassandra|6.12.09 @ 8:03PM|#

While Im back in timing assassinating Wilson, Im willing to take a shot at Holmes too.

Watch it. If virtual porn is child-abuse, don't you suppose such sentiments as yours will soon constitute menacing?

|6.12.09 @ 8:16PM|#

To take everyone's opinion of Oliver down another couple of notches, read the context of his famous quote about "shouting fire in a crowded theater."

Seward|6.12.09 @ 8:18PM|#

MNG,

Holmes basic judicial philosophy was one of absolute majority rule. The only reason he defended free speech rights at all was because of his social Darwinian ideas regarding societal competition. This isn't really debatable.

The whole idea of progressivism is that it, you know, progresses.

Progressivism was so tied up with racism, class hatreds, dislike of the foreigner, efforts to make the "lower orders" into obedient imbibers of "middle class" values, etc. that I find it hard to apply "progress" to the term. From what little I know about it, the City Beautiful movement is a pretty good example of all this.


Elemenope,

It was the princes that supported Luther and other dissenters that were ultimately a lot more important; and their support wasn't generally based on anything other than real politic.

Seward|6.12.09 @ 8:23PM|#

MNG,

BTW, recently I heard an author discuss the differences between liberals and progressives (he put libertarians into the former group, along with modern liberals); that difference being the latter's emphasis above all other things on social control, whereas the former emphasizes autonomy and choice.

Seward|6.12.09 @ 8:35PM|#

Elemenope,

Oh, and the main knock against Luther should be that he helped to make the wars fought between Protestant and Catholic powers more likely and more vicious.

Mad Max|6.12.09 @ 8:41PM|#

'A: "Well, without him breaking the monopoly of church power, there probably would be no Enlightenment, no framework for rights as we understand them, no modern world."
'B: "Yeah but he was an antisemite, so fuck him."

'Like the second in any way changes the facts of the first.'

You're quite right - Luther's attitudes toward Jews do not affect, in the slightest, the accuracy of your statement giving him credit for what's good in the 'modern world.'

In other words, the statement remains as accurate as it was before.

Elemenope|6.12.09 @ 8:41PM|#

To take everyone's opinion of Oliver down another couple of notches, read the context of his famous quote about "shouting fire in a crowded theater."

Falsely (because that's the pertinent word in the quote) shouting fire in a crowded theater is an act of malicious fraud which can lead to injury and/or death. His position is not incompatible with Libertarians (who also agree that rights to not extend to their use for force or fraud).

Elemenope|6.12.09 @ 8:48PM|#

In other words, the statement remains as accurate as it was before.

My point is that the second quote is used in order to argue that Martin Luther is a bad man and thus shouldn't be given credit or recognition for anything in the first.

And the wider point (lest we get bogged down in an argument about Martin Luther) is that this is a common argumentation strategy when talking about any major figure in history who has done both really good and really bad things, and that we continue to countenance the emphasis on the bad acts as an excuse to ignore or belittle the good is at best intellectually dishonest.

Having an intelligent conversation with, say, Libertarians about Holmes or Lincoln tends to be impossible for this reason, just like talking to Liberals about Reagan or Scalia, or Conservatives about FDR or Brandeis tends to be.

baldanders|6.12.09 @ 8:49PM|#

Take it easy on the kid, Cassandra; everybody kills Wilson on their first trip. I did. It always gets fixed within a few minutes, what's the harm?

Seward|6.12.09 @ 8:54PM|#

Elemenope,

On balance both Luther and Holmes did far more harm than good. For example, Luther would not be the Ren-Ref figure that I would given much credit for helping to create the modern world; if anything, whatever one might have to say about his attacks on Church hierarchy (and even these were often off base - he ought to have been really attacking the "German" bishops for most of the abuses in "Germany"), his efforts plunged Europe into several hundred years of civil war. No, it is figures like Spinoza that I celebrate. Of course that is just my reading of the historical record.

baldanders|6.12.09 @ 8:57PM|#

Elemenope: well, I'd say that I lean conservative in a number of ways, but even I think Reagan shouldn't be lionized as he is. He got a few things stunningly and surprisingly right, and he deserves credit for that- some of them were important. But he was a major fuck-up in a lot of respects.

|6.12.09 @ 9:01PM|#

Elemenope-

The first two paragraphs of you last post reflect wisdom, insight and a keen appreciation of human nature.

|6.12.09 @ 9:05PM|#

MNG-

In response you your question at 7:48. may I respond in an Elemenopian manner?

In some ways, yes; in others, obviously not.

|6.12.09 @ 9:09PM|#

Elemenope,
First you need to give it a rest. You did NOT read the context.
Oliver condemned Eugene Debs' buddies by using inflammatory language to accuse them of something they never came close to doing.
Wikipedia?

|6.12.09 @ 9:10PM|#

ELemenope, you know, how about some Bert Blyleven mets Cal Coolidge action?

Lincoln was an astute advocate.

zoltan|6.12.09 @ 9:29PM|#

You can still think Holmes and Luther were pieces of shit while admiring the few things they did right.

Cassandra|6.12.09 @ 9:38PM|#

Nobody ever listens to me.

baldanders|6.12.09 @ 10:16PM|#

"You can still think Holmes and Luther were pieces of shit while admiring the few things they did right."

Sure, but you ought at the same time to recognize that if they were right about a few important things but wrong about almost everything else- well maybe you ought not to just take their advice about everything just cause they got a few things right. That's monkey logic, and we have too much monkey logic going on these days.

OTOH if you're really worried about whether or not Holmes or Luther or Wilson was a good guy or not.. I mean, they're dead. It's not that I think speaking ill of the dead is a bad thing, but it's also kind of beside the point, IMHO.

Elemenope|6.12.09 @ 10:16PM|#

First you need to give it a rest. You did NOT read the context.

I'm familiar with the context (a major part of which, the bolded word, you left out). Nobody here believes on balance that he made the right decision in Debs, even with the pertinent context left in.

Oliver condemned Eugene Debs' buddies by using inflammatory language to accuse them of something they never came close to doing.
Wikipedia?

And then a scant couple of years later reversed himself, having decided that his earlier opinion was wrong. That is, he made a decision (in Debs), he came to view that decision as a mistake, and then changed his position and made a later decision consistent with that change of heart (Abrams). I mean, it was literally not just the same issue, but the same underlying act of Congress that was at issue in both cases.

My question is, why is everyone here so quick to condemn him for the first and incapable of acknowledging the second?

Elemenope, you know, how about some Bert Blyleven mets Cal Coolidge action?

Lincoln was an astute advocate.

LOL. Yes he was. Thanks for your kind words, BTW.

You can still think Holmes and Luther were pieces of shit while admiring the few things they did right.

If I needed a one sentence summation of my overarching point, it couldn't be written better than this.

Elemenope|6.12.09 @ 10:24PM|#

No, it is figures like Spinoza that I celebrate. Of course that is just my reading of the historical record.

I'd certainly much rather have a beer with Spinoza than with Luther, for certain, but I think even an uncharitable reading of the historical record has to grant that the reformation (esp. the breaking of the Church's power) would have been delayed if not prevented by the absence of a figure like Luther. Since is *was* Luther, the-right-guy-in-the-right-place-at-the-right-time if you will, he gets the kudos for that. It is true of any period in history that things could have been done by someone other than who they end up being done by, but that doesn't mean we shouldn't give credit for the guy or gal who actually ends up doing it.

Personally I revel in the historical irony that Luther's acts would allow Spinoza, a Jew, to lay some of the groundwork for the great advances in thought and philosophy that would follow, even though Luther was a bitter antisemite who himself would have persecuted and oppressed a Spinoza had he the chance.

MNG|6.12.09 @ 10:37PM|#

"you ought at the same time to recognize that if they were right about a few important things but wrong about almost everything else- well maybe you ought not to just take their advice about everything just cause they got a few things right."

But what if in the areas they were in the wrong they were essentially no more wrong than most people of their times, but in the ways they broke with their times, they were in the right?

Seward
Holmes believed in judicial restraint, which involves a deference to democratic majorities. Yes. I'm not too sure that was all bad. As someone said, democracy is the worst form of government except for all the others...

And you're getting hung up on the idea of "progressives" and the historical "progressive movement". Either way, I'm not convinced the latter was racist in any way that was out of step with the rest of the society around it at the time...

MNG|6.12.09 @ 10:45PM|#

"My question is, why is everyone here so quick to condemn him for the first and incapable of acknowledging the second?"

LMNOP
Because:
1. Liberals like Holmes
2. Holmes did bad things
3. Liberals like bad things! neener-neener!

You know how this goes around here...

It has all the sense of me saying:
1. Holmes was a GOP appointee
2. Holmes did bad things
3. The GOP like bad things! neener-neener!

The court that Holmes wrote for in this opinion had more libertarian and conservative justices on it than the court has probably seen since, but you wouldn't know that from all of this bullshit.

You don't hear that Justice Van Devanter, who "is best remembered for his opinions defending limited government" ruled with Holmes in this case, with him in the Buck v. Bell case, with him in the Insular cases,, etc...

Elemenope|6.12.09 @ 11:00PM|#

MNG --

Every movement needs its demons. Occasionally, they even turn out to *be* demons (though, as you point out, not this time; Holmes, in the way that he was bad, was bad about the same way as most of his contemporaries). I don't much begrudge people clinging to their demons, as I get the necessity for them. I just wish people would not confuse the occasional five-minute hate for actual intellectual discourse on the same subject.

Some people are easier to make into demons than others, which is why I better understand Wilson, for example (who did very little good and a *whole lot* of bad) being the go-to guy for evil, rather than a guy like Holmes.

|6.13.09 @ 12:31AM|#

But what if in the areas they were in the wrong they were essentially no more wrong than most people of their times, but in the ways they broke with their times, they were in the right?

But what if they weren't?

Certainly I grant that it's ridiculous to criticize for joining a unanimous opinion, but lets take Buck v. Bell, since you brought it up. Who dissented and said that Carrie Bell couldn't be sterilized?

Pierce Butler, that's who. A Democrat nominated by a Republican, Butler was hated by progressive and labor groups and beloved of business. He was not a progressive, so I suppose that makes him a conservative. He was one of the Four Horseman who continually voted against the New Deal.

Oh, and of course he dissented on Palko v. Connecticut, finding that a man could not be tried twice for the same crime.

It's a calumny to claim that "conservatives in 1920" would oppose civil rights, or that progressives were distinguished by being "the same or better" on civil rights. Being opposed to the New Deal and progressivism was largely independent of civil rights views on the Court.

Cases like Pierce v. Society of Sisters and Meyer v. Nebraska and other cases generally universally approved depended on ideas from Lochner and others. In some ways, though granted not all, the Four Horsemen could be more protective of civil rights than a committed majoritarian like Holmes. They applied it to economic liberty as well, which made progressives hate them, but not exclusively to economic liberty.

|6.13.09 @ 12:36AM|#

You don't hear that Justice Van Devanter, who "is best remembered for his opinions defending limited government" ruled with Holmes in this case, with him in the Buck v. Bell case, with him in the Insular cases,, etc...

Sure, but you don't hear that Pierce Butler dissented from Holmes in Buck v. Bell either.

You want to argue that Holmes wasn't that out of step with his times and it's churlish to rebuke him for unanimous or nearly so opinions, yes, I agree. If you want to argue that Holmes and the progressives were significantly better on civil liberties, then I'll argue. He was a committed majoritarian, which made him in some rulings better, in some worse.

baldanders|6.13.09 @ 1:08AM|#

"But what if in the areas they were in the wrong they were essentially no more wrong than most people of their times, but in the ways they broke with their times, they were in the right?"

Then you ought to exercise your critical faculties a bit. That's clearly anathema to you, but.. I'd like to think that no one is beyond redemption in this respect.

tassawwuf|6.13.09 @ 2:23AM|#

'while there is a lower class i am in it,
while there is a criminal element i am of it, while there is a soul in prison i am not free'

Debs was a good socialist...ayn rand & rush fuckbagh would disagree for diffr't reasons but even kilgore trout couldn't say for sure he wasn't a fictional freemason

baldanders|6.13.09 @ 2:27AM|#

"'while there is a lower class i am in it,
while there is a criminal element i am of it, while there is a soul in prison i am not free'"

Yeah, that's nice and all, but some motherfuckers ought to rot in jail. And it is the lower class that understands that best. Because it is the lower class, more often than not, that gets mugged by the criminal element.

tassawwuf|6.13.09 @ 3:06AM|#

ah, toche'...he still had way bigger balls for a way better cause than some peoples children

baldanders|6.13.09 @ 4:45AM|#

Hmm- I have no idea what you mean tassa.

I've always liked beer and the freedom to go get some. When I lived in Park Slope I used to go down the street and buy beer through a revolving window, from a store run by Arabs.

But it was guarded by young Latinos. I used to just nod to them, but- one day one of them pulled a knife on me. I broke his wrist and his arm and his nose and I gave him one hell of a knee in the balls. His bunch of guys ran away. But the next day they mugged me with a gun. I was pretty lucky that they only wanted my money, after what I had done to their buddy.

If someone pulled that kind of shit on me in Florida they would be casting a polka dot shadow. That's part of why NYC sucks. You can't shoot people who deserve it.

MNG|6.13.09 @ 8:49AM|#

Sorry John, you're trying to revive a comatose patient, but he ain't wiggling.

Butler, a Catholic, dissented without comment in Buck, a sterilization case. In the legal currents back then, he had no hook upon which to hang his hat, but of course his Catholicism did not allow him to concur (that in itself if pretty scary imo).

Holmes was gone from the Court by Palko, you can't blame him for that one.

Butler can't get any superiority over Holmes in Pierce v. Society of Sisters, they were both in the majority.

But I can bring up cases where Butler was in the anti-liberty group and Holmes was in the right area: such as the great free speech case Gitlow v. NY. Where was Butler? The wrong side. This could go on and on you know.

Seward|6.13.09 @ 8:58AM|#

MNG,

Holmes believed in judicial restraint, which involves a deference to democratic majorities.

Holmes believed in majoritarianism; he didn't start with judicial restraint and then work forward, he worked from majoritarianism (heavily peppered with some plutocratic attitudes) and then went to judicial restraint (unless and until majoritarianism actually went against his plutocratic attitudes).

As someone said, democracy is the worst form of government except for all the others...

A comment which makes little sense upon any sort of reflection. Some sorts of democracies are clearly worse than other other types of governments; just as anarchy is clearly superior for Somalia today than was having a government in the 1990s.

And you're getting hung up on the idea of "progressives" and the historical "progressive movement".

Ahh, we were talking about a period which partially encapsulated the so-called Progressive Era.

Either way, I'm not convinced the latter was racist in any way that was out of step with the rest of the society around it at the time...

Progressives were often foursquare against the anti-racist organizations and individuals of the time. There is a lot of history - of anti-racist efforts in the late 19th century - that has simply been buried.

MNG|6.13.09 @ 9:50AM|#

Seward
You could find progressives, during the period we term the "progressive movement," both for and against racists and anti-racists. I imagine like most of society (it was a huge movement) many of them had plenty of racist notions, but that was true of conservatives, and "libertarians" too (of course, it's always nice to cheer for a movement which did not self-identify back then because you don't have to deal with any ugly examples).

But let's stick with your specific example. The Progressive Movement actually formed a party and ran Presidential candidates outside of the two major parties (in which they were also active). The Progressive Party ran T.R. in 1912. T.R. had some definite racist ideas (i.e. his manifest destiny ideas), but he also hosted Booker T. Washington and railed against lynching.

In 1924 they ran Robert LaFollette, whom was "noted for championing Native and African-American rights."

The movement would run Henry Wallace in 1948 and the "campaign was unusual for his time in that it included African American candidates campaigning alongside white candidates in the American South, and that during the campaign he refused to appear before segregated audiences or eat or stay in segregated establishments."

So it seems you have a pretty stupidly simplistic idea of "Progressives=teh racists" of their day. They were certainly no worse than most in their day, and often were quite better.

I can't blame you as right of center blogs and rags have been pushing this meme for a long time in their embarrassment that right of center folks seemed to be awol during the major momements of the Civil Rights movement in America...

MNG|6.13.09 @ 10:01AM|#

But let's have some more fun with our conservative hero judge Mr. Butler:

No friend to civil rights, he dissented in the famous Scottsboro case and in many other cases notedly resisted efforts to strike down Jim Crow:

"In a 1938 case involving an African American denied access to law school by the state of Missouri, Butler's dissented opinion argued for the constitutionality of the state's action (Missouri ex rel. Gaines v. Canada, 205 U.S. 337).....Butler also dissented in several decisions in the 1930s in which the Court struck down JIM CROW LAWS that kept African Americans from voting. In Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, 82 L. Ed. 252 (1937), Butler argued that a poll tax (a tax charged to voters at the time they cast their votes) did not violate the Fourteenth Amendment, and in Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939), Butler disagreed with the majority's decision to strike down an Oklahoma law that made it difficult for African Americans to register to vote."

And free speech? Not so much for our hero Butler:
"In his dissent against the majority opinion in Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), Butler considered lawful the conviction of a young woman found guilty of displaying a red flag in public. The California law under consideration, Cal. Penal Code § 403a, made it a felony to display a red flag as "an emblem of opposition to organized government" or "an invitation … to anarchistic action."

Seward|6.13.09 @ 10:02AM|#

MNG,

...and "libertarians" too (of course, it's always nice to cheer for a movement which did not self-identify back then because you don't have to deal with any ugly examples).

The only libertarians of the 19th century that I have any familiarity are folks like Lysander Spooner, who was definitely not a racist.

So it seems you have a pretty stupidly simplistic idea of "Progressives=teh racists" of their day.

Yeah, that would be pretty stupid; which is why I didn't make that claim.

I can't blame you as right of center blogs and rags have been pushing this meme for a long time in their embarrassment that right of center folks seemed to be awol during the major momements of the Civil Rights movement in America...

Well, if 19th century Republicans were "right of center" folks (keeping in mind that I am not a Republican), they were the progenitors of one of those major moments - namely the Civil Rights amendments. One could also make the same argument regarding the dissent in the Slaughterhouse case.

Anyway, my comments about the negative aspects regarding Progressivism were concerned with more than racism; see that comment above.

MNG|6.13.09 @ 10:03AM|#

"Holmes believed in majoritarianism"

Me too. I think a society ruled by a majority in that society is usually better than a society ruled by a minority. I prefer democracy to oligarchy, thank you.

MNG|6.13.09 @ 10:08AM|#

"The only libertarians of the 19th century that I have any familiarity are folks like Lysander Spooner, who was definitely not a racist."

That's my point, it's nice to be a member of a movement with no history, because then you can't be associated with anything negative in the past.

"Well, if 19th century Republicans were "right of center" folks"

I don't think they were, at least not as we understand those terms today. You can look at a map of the districts that voted for the civil rights acts and those that voted against and you will see that the former are what today are "blue" districts and the latter are usually "red" districts.

But in going from the "Progressives were teh racist, so people today who call themselves progressives" to the "Democrats were teh racists so people today who call themselves Democrats are teh racists" you would be going from one stupid argument to a worse one...

Seward|6.13.09 @ 10:09AM|#

MNG,

Democracy and majoritarianism aren't really the same things.

Seward|6.13.09 @ 10:14AM|#

MNG,

That's my point, it's nice to be a member of a movement with no history, because then you can't be associated with anything negative in the past.

It has a history; see for example the writings of Lysander Spooner.

I don't think they were, at least not as we understand those terms today.

They were the advocates of free labor and free internal markets (indeed, it was the glue that held the movement together); that by itself makes them right of center, especially when it came to 19th century politics, when such were considered to be destructive of community and collective rights.

But in going from the "Progressives were teh racist, so people today who call themselves progressives" to the "Democrats were teh racists so people today who call themselves Democrats are teh racists" you would be going from one stupid argument to a worse one...

Who is doing that exactly?


I'll have to go now.

MNG|6.13.09 @ 11:04AM|#

"free internal markets"

It's nice to know that you knew they were for incredible tarrifs but felt the need to elide that by saying "internal"...

Sorry, you don't get to claim Lysander and reject, say, Justice Van Devanter, who was going on and on about free markets and such and would have been towards the "libertarian." If you get to only claim perfect examples of your brand, then us liberals can say just do the same (there were progressives who stood up for minority rights and such, I could just call them the "real" progressives and say that those who did not were not "real" ones).

|6.13.09 @ 11:27AM|#

""""Elemenope writes

Falsely (because that's the pertinent word in the quote) shouting fire in a crowded theater is an act of malicious fraud which can lead to injury and/or death. His position is not incompatible with Libertarians (who also agree that rights to not extend to their use for force or fraud)."""""

The falsehood was on Holmes, since he used the shouting fire in a crowded theater argument in a case which had nothing to do with shouting, fire or theaters. The case was Schenck v. United States and it had to do with the right to protest against WW1. Court opinions are suppose to be about Law and Fact and there was nothing to do with either in this case in Holmes quote . It was nothing but an off the wall quote which should have been thrown out, not made part of the case at hand. Schenck was not shouting fire in a crowded theater and so Holmes quote was a falsehood

Elemenope|6.13.09 @ 12:31PM|#

DJF --

It. Was. A. Metaphor. A metaphor.

|6.13.09 @ 12:35PM|#

I think a society ruled by a majority in that society is usually better than a society ruled by a minority.

Whereas I prefer a society that is mostly not ruled at all. A civil society, rather than one laboring under the shadow of the Total State.

But yeah, some element of democratic accountability is a necessary but not sufficient element of a decent society.

|6.13.09 @ 12:48PM|#

""""Elemenope writes

It. Was. A. Metaphor. A metaphor."""

So what connects or compares shouting fire in a crowded theater with handing out anti-war leaflets on a street? Were people going to suddenly panic and die because they read a leaflet? Were people terrified by leaflets? Were they going to get a paper cut?

As I said, Holmes quote had nothing to do with either the Law or the Facts of the case and therefore should not have been allowed to be associated with the case.

This quote has been used ever since to suppress free speech. That is because the true facts of the case would not get them support so they, like Holmes has to make up a story about shouting fire in a theater to get their way.

Elemenope|6.13.09 @ 12:57PM|#

As I said, Holmes quote had nothing to do with either the Law or the Facts of the case and therefore should not have been allowed to be associated with the case.

ROFL.

robc|6.13.09 @ 1:50PM|#

My question is, why is everyone here so quick to condemn him for the first and incapable of acknowledging the second?


We werent discussing the 2nd one?

Why cant I just condemn him for the first one? Im not commenting on anything else he did while doing it. Just discussing it. Whats the problem?

robc|6.13.09 @ 1:51PM|#

But what if in the areas they were in the wrong they were essentially no more wrong than most people of their times

Im not grading on a curve. You get no credit for agreeing with your peers.

robc|6.13.09 @ 1:54PM|#

I think a society ruled by a majority in that society is usually better than a society ruled by a minority.

The majority is always wrong. Usually, the minority is too, but it least it stands a chance.

MNG|6.13.09 @ 1:55PM|#

DJF
I think you are correct, but are missing something nevertheless.

Holmes used the theater example to note that while we have freedom of speech, speech that provokes an immediate breach of the peace which could harm others is unprotected. This is how most people today think about freedom of speech; that unless it is akin to yelling fire in a crowded theater it must be allowed. But we tend to think this way because we are steeped in the decades of jurisprudence following Holmes insightful work on this issue. It was he who created this clear and present danger test which, when propely applied, has been used to protect a great deal of speech that would have been left unprotected by American jurisprudence pre-Holmes...

You are correct that Holmes then wrongly found Debs' speech to fall into that category in this case. As LMNOP correctly points out though, Holmes would later begin to apply the principle in the way in which most modern Americans think it should be applied. And not only did he do this decades before our modern jurisprudence on this issue, you can now see it was he that created this viewpoint itself!

And yet he gets scorn here...

MNG|6.13.09 @ 1:56PM|#

robc
You really prefer oligarchy to democracy?

MNG|6.13.09 @ 2:01PM|#

I'm betting what you mean is that you'd rather have a democracy wherein there are many areas in which minorities are protected from majority preferences.

I'd be likely not to disagree there.

But where policy can be made that will govern a polity, it's best made by the majority of the governed than a minority of the governed.

|6.13.09 @ 2:15PM|#

MNG,

I think Seward's point was that the best situation is where government isn't involved at all in the vast majority of affairs in the society. In those areas of life, then, the government's nature as a democracy, oligarchy, plutocracy, theocracy, or whateverocracy doesn't even matter.

MNG|6.13.09 @ 2:20PM|#

Tulpa
Point taken.
But in every society there will be some government, even if minimal. In Libertopia there will still be things like enforcement of contracts, basic policy services and the like. And there will still be some debate about which policies all must follow and the nature of those policies. Those debates should be solved by majority rule rather than by some "enlightened minority".

|6.13.09 @ 2:25PM|#

"""""MNG

And yet he gets scorn here…"""""

Because in famous case where his argument for "clear and present danger" is most noted, there was no clear and present danger involved.

Even his example of falsely shouting fire in crowded theater is a straw man. How many actual cases have there ever been for someone being convicted of actually falsely shouting fire in a crowded theater. I have never heard of anyone convicted of such an act. If such an act actually does happen it must be very rare and we should not use the standard of such a freak event to restrict free speech which is an absolute right in the Constitution.

And no Holmes did not create this right, he did not protect a right, it was a right long before Holmes was even born. All he had to do was read the clear words of the First Amendment and there it was. His Schenck v. United States decision is bad law as I pointed out

|6.13.09 @ 2:45PM|#

MNG,

Well, in Libertopia, the domain occupied by the government would be so tiny that it would not be a great concern how the government was chosen. I personally would rather have an unelected libertarian dictator, who only concerned himself with the legitimate functions of govt, rather than the faux-democratic unlimited government that we have now. (I say faux-democratic because the majority's involvement in govt policy is limited to choosing representatives once every few years, so that a lot of the policies enacted are not supported by the majority)

DJF,

It's an especially ridiculous example when you consider that the person yelling "Fire!" is probably going to get trampled himself...

robc|6.13.09 @ 2:48PM|#

You really prefer oligarchy to democracy?

I prefer selfocracy (I think there is a fancier term). I prefer republicanism (small r) to democracy (small d) too.

I never mentioned oligarchy.

Actually, with a properly constructed document describing the powers and means of government*, there is never a need to have a vote after that.

*not that I think that document is possible. But it should be the goal. If we are going to have a democratic republic, it should be so tightly limited that the reps only need to meet for a short time each year.

KY, until the 90s, still had sessions every other year. I think some states still do that. The expansion to annual sessions have made things worse in KY.

robc|6.13.09 @ 2:51PM|#

And yet he gets scorn here...

Consider his baseball decision, not yet mentioned here. There can be no number of good decisions that can overcome that awful one.

Although, interestingly, I think it is a case where he ended up on the correct side, just via the worst decision-making process ever.

MNG|6.13.09 @ 3:47PM|#

"the domain occupied by the government would be so tiny that it would not be a great concern how the government was chosen"

Not true. Smaller than we have, yes. Small? There is a ton of law to be worked out even in Libertopia. There would be something like the UCC, though pared down quite a bit. There would be a host of criminal law (think procedural law alone). Would there be a rule against perpetuities? What type? Intestate law? What type? One could go on and on. Don't worry, lawyers would have plenty of work in Libertopia too. And lawmakers. And I'd rather have those lawmakers be part of a democracy (I won't quibble with a "republic").


"Actually, with a properly constructed document describing the powers and means of government*, there is never a need to have a vote after that."

That's not right. You'd have to at least have votes to inform how the laws will be applied to new things (whether the new thing falls under the law or not and how). For example, contracts being formed online (when are they irrevocable?), who owns IVF embryo's, is upskirting a crime (or a tort?)? One could think of hundreds. You wouldn't just want judges deciding these things would you?

MNG|6.13.09 @ 3:50PM|#

His baseball decision was terrible, both in its reasoning and its conclusion.

I realize this is a libertarian site and the Interstate Commerce Clause is narrowly read, but it's laughable to assume that when the Yankees, a New York business, travel to Fenway Park and play the Red Sox, generating income via the game which is part of a season for a league comprised of teams from dozens of states, that Interstate Commerce has not occurred...I mean, wtf, would the game have to be played on a field located on state lines for that to be Interstate Commerce?

robc|6.13.09 @ 3:51PM|#

You'd have to at least have votes to inform how the laws will be applied to new things

If you are going to quote me, quote my footnote too.

MNG|6.13.09 @ 3:52PM|#

If I'm a MD company that erects those funhouses that little kids jump in at birthday parties for a fee, and a WV family hires me to do that, and I drive over and do so, is that not interstate commerce? If that is not I have trouble thinking of what in the world is.

And I have trouble seeing how a MLB game is any different...

MNG|6.13.09 @ 3:55PM|#

Well, the footnote is bullshit. I mean, what, did you mean by "properly constructed document" a magical document that alters itself to properly address societal innovation and changes?

robc|6.13.09 @ 3:55PM|#

MNG,

I realize this is a libertarian site and the Interstate Commerce Clause is narrowly read, but it's laughable to assume that when the Yankees...

Exactly. I read the ICC as narrowly as possible and baseball still falls under interstate commerce. Like I said, it was a horrible decision. The other quote from it along the lines of "individuals performing, but not in production, isnt commerce". WTF? They are producing FUCKING ENTERTAINMENT YOU FUCKING MORON!!!

[Bold is because Im yelling at the dead]

Really, it is quite possible he is the dumbest person ever to ever be a member of the SCOTUS.

MNG|6.13.09 @ 3:57PM|#

IIRC Holmes' reasoning was laughable: it's not commerce, it's an exhibition.

Yeah, no commerce going on with MLB...All those ticket windows are merely for advising the crowd how best to admire the exhibition!

robc|6.13.09 @ 3:58PM|#

a magical document that alters itself to properly address societal innovation and changes?

Yes. Which is why I said it wasnt possible in the footnote, which makes the footnote exactly not bullshit.

I mean, in theory, you could lay out procedures for determining how to apply changes so that it can always be calculated from first principles, and by following laid out procedures, every one would reach the same conclusion, but we arent smart enough for that. Plus, Im pretty sure Gödel would have a problem with it.

MNG|6.13.09 @ 3:59PM|#

robc
Then how do you figure he was on the correct side? You mean that the anti-trust laws themselves are bullshit?

MNG|6.13.09 @ 4:00PM|#

BTW that was a unanimous ruling as well...

robc|6.13.09 @ 4:01PM|#

You mean that the anti-trust laws themselves are bullshit?


Yes. I thought that was clear from my original post. His reasoning is beyond fucked up, he just magically landed on the right side.

MNG|6.13.09 @ 4:02PM|#

It's incredible that was an unanimous ruling...It's like the entire SCOTUS must have never been to or barely heard of a baseball game...

Now, a purely intra-state league would have been a different story...

robc|6.13.09 @ 4:02PM|#

BTW that was a unanimous ruling as well...

I have recently begun to suspect that unanimous rulings are either brutally obvious or horrendous, with no middle ground.

The Hawaii case that was cited by Kelo was also unanimous and awful.

robc|6.13.09 @ 4:03PM|#

It's like the entire SCOTUS must have never been to or barely heard of a baseball game...

Or taken a class in BK law. :)

MNG|6.13.09 @ 4:04PM|#

"Yes. I thought that was clear from my original post."

OK, I understand. Don't agree, since I support anti-trust legislation (but I won't get into that here), but can see now. I thought you meant that he was right on the interstate commerce aspect but wrong in getting there by reasoning it was not so because it was an exhibition and not commerce.

robc|6.13.09 @ 4:04PM|#

BTW, I wasnt just being flippant there. I think there is a commonality between the MLB case and the Chrysler case. SCOTUS didnt want to "destroy" a national institution.

They appear to be opposed to massive change and chaos.

I on the other hand...well...

Hail Eris!

robc|6.13.09 @ 4:06PM|#

Can possibly throw Dred Scott onto that list too.

MNG|6.13.09 @ 4:10PM|#

I'm more and more coming to support the conclusion that Kelo was not obviously wrongly decided.

Not that I support the eminent domain run amok we see these days. I don't, and it's a bit shameful to see liberals who profess to be for the "little guy" standing up to government and big business not coming around on this.

But when I look at the Fifth, I can plainly see:
1. An implicit endorsement of takings
2. An explicit requirement there be compensations in such cases

And I don't see an explicit bar on taking of private property for even very broad public uses. Read literally it seems to just say "and no person shall have their private property taken for public use unless they be compensated." I'm not sure that bars government takings for broadly public uses (or maybe even private uses).

I support legislation to correct this, and constitutional amendments if necessary.

Robert|6.13.09 @ 4:25PM|#

we continue to countenance the emphasis on the bad acts as an excuse to ignore or belittle the good is at best intellectually dishonest.

It's not dishonest, it's just an open value judgement. For reasons I don't know, bad acts are traditionally given much more weight than good ones. Persons who have done great deeds are still prosecuted and punished for crimes, even relatively minor ones. One never hears of more than a small bit of consideration given for someone's unrelated good works in mitigating a sentence for conviction of a crime. Consider for example someone who via heroic action saved several people's lives, and then later murdered just one person; if one is to be treated for the good or ill done to society, one would expect such a person not to be punished at all, because s/he has done good on balance. But that's not the way these things go. Don't ask me to explain why.

miltie verveniotis|6.13.09 @ 4:29PM|#

Hail Eris indeed!

Robert|6.13.09 @ 4:44PM|#

His baseball decision was terrible, both in its reasoning and its conclusion.

I realize this is a libertarian site and the Interstate Commerce Clause is narrowly read, but it's laughable to assume that when the Yankees, a New York business, travel to Fenway Park and play the Red Sox, generating income via the game which is part of a season for a league comprised of teams from dozens of states, that Interstate Commerce has not occurred...

Is that what he said? My understanding was completely different -- that it was akin to the decision a few yrs. ago that tobacco products were not medical devices within the meaning of the FFDCA.

Correct me if you have his actual words, but I thought the ruling was that the word "business" as it occurred in the Sherman Act did not apply to baseball, because Congress had been aware of baseball and how it did business when the act was passed, and gave no indication that they wanted to change the way the baseball biz operated, hence they must have meant not to include it in the businesses the act was to cover. And I think he was right.

Sometimes the decision is sneeringly quoted out of context as saying that baseball was not a business, when what it really meant was that it was not what the Sherman Act meant by "business". It is frequently the case that if you applied the words of a statute literally you would wind up applying it to all sorts of things it obviously wasn't meant to cover.

BakedPenguin|6.13.09 @ 4:53PM|#

I'm more and more coming to support the conclusion that Kelo was not obviously wrongly decided.

MNG, When private property is taken and, in part, enriches another private individual, there is a strong case to make that it is not "public use".

|6.13.09 @ 5:05PM|#

MNG,

Well, with the restrictiveness of modern ballot access laws, and the death of federalism, what we have now is a soft oligarchy. If you're not approved of by the top leadership of either the Democratic or Republican parties, you're not getting elected to any office higher than state legislator (which with federalism dead is basically a powerless position), no matter how well you would be liked by the majority.

robc|6.13.09 @ 5:09PM|#

The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order [259 U.S. 200, 209] to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U.S. 648, 655 , 15 S. Sup. Ct. 207, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words. As it is put by defendant, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.

robc|6.13.09 @ 5:12PM|#

The quote above is about a third of the total decision. It seems to be much more the norm for decisions in the past.

When did the page bloat in decisions come about?

Elemenope|6.13.09 @ 6:37PM|#

Why cant I just condemn him for the first one? Im not commenting on anything else he did while doing it. Just discussing it. Whats the problem?

Imagine you're a Christian (since I can't remember if you are or not) and you're teaching your kid about Paul. Let's say you tell the story this way:

"Once there was a man called Saul of Tarsus, and while he lived in Tarsus he persecuted Christians. Then, he took a trip to Damascus. The End."

Something's missing, right? My point is we are discussing Holmes and his jurisprudence. It is silly to assiduously avoid the point at which he comes around to agree with you and spend so much time on the short period before that when he didn't.

Robert|6.13.09 @ 6:43PM|#

Well, with the restrictiveness of modern ballot access laws, and the death of federalism, what we have now is a soft oligarchy. If you're not approved of by the top leadership of either the Democratic or Republican parties, you're not getting elected to any office higher than state legislator (which with federalism dead is basically a powerless position), no matter how well you would be liked by the majority.

But is it still possible for anyone to become part of that top leadership, or to have a role in determining it? If not, it's surely not hereditary; could it (the leadership) be in the nature of a guild, such that the existing members select those to be admitted? And does this state of affairs (whichever of the possibilities it is) differ from those of other large democracies?

robc|6.13.09 @ 11:35PM|#

lmnop,

Okay, fair analogy (since you hit right, I am a Christian). But, then again, I have no problem with someone saying "Fuck you pre-conversion Saul". It is accurate for the dude who persecuted the early Christians.

But, then again, to follow your point, lets turn to the more important things. Holmes royally screwd THE MOST IMPORTANT CASE he was involved with, the Baseball one discussed above. I know it was more important because baseball matters 100000 times as much as politics. So, the most important bits of Paul turns his situation around. The most important bits of Holmes sticks him in an even worse hole.

robc|6.13.09 @ 11:36PM|#

If not, it's surely not hereditary

The Bushes
The Kennedys
The Bidens

do I need to go on?

Elemenope|6.14.09 @ 12:47AM|#

But, then again, I have no problem with someone saying "Fuck you pre-conversion Saul". It is accurate for the dude who persecuted the early Christians.

Neither do I, so long as that is explicitly the scope of the conversation (i.e. "we shall talk today about Paul's pre-conversion screw-ups") and so long as in the wider context it is understood that Paul also did things afterward to repudiate his earlier position on Christians and Christianity. My problem here is that the wider context of this conversation (the Reason H&R commentariat) does not, by and large, include the aforementioned reverses of position when it comes to Holmes.

I know it was more important because baseball matters 100000 times as much as politics.

At the risk of alienating everyone and being called unAmerican, I fucking hate baseball.

jkp|6.14.09 @ 3:15AM|#

Thanks for reminding me what a complete asshole Woodrow Wilson was. In addition to being a racist scumbag and foreign policy buffoon, he also was a fascist on civil liberties.

zoltan|6.14.09 @ 5:38AM|#

I hate baseball and Holmes.

Fluffy|6.14.09 @ 7:49AM|#

Me too. I think a society ruled by a majority in that society is usually better than a society ruled by a minority. I prefer democracy to oligarchy, thank you.

Actually, virtually every aspect of American governance which has any value whatsoever was imposed on the majority by a minority.

Every one of the Bill of Rights was imposed on the majority by a minority, and most of them detail ways in which the majority is to be allowed no power over the minority on an ongoing basis.

Our constitutional republic is for all practical purposes a time-delayed oligarchy, since a small subset of the total voting public, tiny in numbers relative to the body politic today, set the important aspects of the government's organization and powers in stone and the majority is procedurally stymied in adjusting their work.

Of course, as I regularly complain, the majority has found ways to get around the procedural limits in its way in many areas, mainly by denying the plain text of the oligarchistic constitution. But the point remains. In theory, one could devise a constitutional republic whose constitution was so plain in its meaning that the sort of majoritarian dishonesty we've seen historically would be even more difficult.

In how many ways does a constitutional republic have to frustrate the majority before we can all agree that it's not really a democracy?

Fluffy|6.14.09 @ 7:53AM|#

By the way, on the general topic of the thread, Holmes inspires more disdain than the other justices discussed in this thread because Holmes is lauded by historians as a lion of the court, and held up by liberals as a great champion of freedom, while the other men you describe are essentially forgotten.

If the liberal establishment will allow Holmes to be thrown on the ash heap of history where he belongs, then I will stop expressing my disregard for him. But as long as he is held up as an idol I will continue to pelt him with tomatoes.

Fluffy|6.14.09 @ 8:02AM|#

If I'm a MD company that erects those funhouses that little kids jump in at birthday parties for a fee, and a WV family hires me to do that, and I drive over and do so, is that not interstate commerce? If that is not I have trouble thinking of what in the world is.

I think that the quote robc posted is actually quite reasonable.

If you make a good in one state and move it to another state to sell it, that's interstate commerce.

If you move yourself from one state to another and then make a good, it's not interstate commerce. It's just you exercising your right to travel between states, and then engaging in intrastate commerce after you've done so.

robc|6.14.09 @ 9:31AM|#

Fluffy,

I didnt agree with the quote, btw, just posting it for completeness. I would agree with you, on the individual. However, when Boston goes to New York to play baseball, they arent moving the company. They are still Massholes, not new New Yorkers. They get paid in Boston, they continue to live in Boston, and they go back and forth between Boston and NY and Boston and 13 other AL cities. They are clearly, IMO, engaging in interstate commerce. Actually, while this didnt apply in Holmes's day, the TV contract probably makes it most clear. Signing a national TV contract makes baseball clearly interstate commerce.

Look, I am as limited ICC as reasonably possible, but
1. baseball is commerce (Holmes got this wrong)
2. it is interstate in nature (at the MLB level)

I think the fact that the Red Sox "represent" Boston while out of state is enough to establish #2.

MNG|6.14.09 @ 9:31AM|#

luffy
I think that's almost an absurdly narrow way to read the clause.
A synonym for commerce is "transaction"

commerce: transactions (sales and purchases) having the objective of supplying commodities (goods and services)

wordnet.princeton.edu/perl/webwntransactions

Certainly the above transaction is an interstate one. You're thinking of production.

robc|6.14.09 @ 9:38AM|#

clarifying my position - I dont think the ICC nature would allow them to alter the game rules - that isnt interstate in nature. However, the negotiations between the clubs, setting up league/playoff rules would be.

It isnt the game itself that is interstate, it is the business organization around the game. So, a single game wouldnt be interstate, only in the concept of a league or tour structure would it be.

My company does training. I think, I, as an individual, could engage in training in multiple states without being interstate in nature. However, since I do it as a rep of a KY company, when I teach out-of-state, it isnt intrastate anymore. The teaching occurs as a performance in that state - this btw, is a really good analogy, I see know differences - but the business negotiations/payment/etc cross state boundaries.

Fluffy|6.14.09 @ 9:56AM|#

My company does training. I think, I, as an individual, could engage in training in multiple states without being interstate in nature. However, since I do it as a rep of a KY company, when I teach out-of-state, it isnt intrastate anymore.

Well, in that case the payment would be sent from one state to another, so maybe I could see that as interstate commerce.

But the Red Sox don't get a cut of the Yankee gate when they go to New York to play. The Red Sox play in New York for free.

The presence of a national television contract that parcels out payments to teams based on the broadcast of games probably does do the trick, so a strong case can be made that the modern game is interstate commerce.

commerce: transactions (sales and purchases) having the objective of supplying commodities (goods and services)

The situation is much more opaque for services than you assume. We are conditioned by the last century of argument to see interstate commerce everywhere, but in many cases we're engaging in ratiocination to do so.

Say I am a freelance copy proofreader. If I drive from New York to New Jersey and work as a proofreader at a business there on a contract basis, that's clearly not interstate commerce. That's intrastate labor, despite the fact that I am a resident of another state. The alternative requires us to argue that the physical passage of a citizen from one state to another can be regulated as interstate commerce, and that would seem to contradict the privileges and immunities clause.

Now, if someone were to use the mails to send me copy editing work across a state line, that would seem to clearly be the provision of a service as interstate commerce. But that's because it's the work product that is crossing back and forth across state lines, and not me as a citizen.

robc|6.14.09 @ 10:18AM|#

But the Red Sox don't get a cut of the Yankee gate when they go to New York to play

Rules vary on this, but I think they do. Or, at the very least, the fact that there is a quid pro quo (you come back to Boston for games) makes it effective sharing.

robc|6.14.09 @ 10:20AM|#

Fluffy,

Your last paragraphs corresponds to my argument about free lance training vs representing a company.

If I barnstorm from state to state training for cash, that is intrastate. Back in the 20s, players did this in the off-season. But leagues and my company are different that free-lance work.

Anyway, I think we are in agreement on that, but I dont we should treat a league structure as the same as barnstorming.

robc|6.14.09 @ 10:23AM|#

Okay, while trying to verify the cut of gate thing - at least in the 19th century, road teams got a cut of gate. The Cleveland team (and they werent the only one, but they did it more than others) would give up home games because they made more off the cut of gate from big teams than they made at home.

robc|6.14.09 @ 10:27AM|#

Okay, some more info on "cut of gate". Currently (as of 2002), MLB does not share gate. However, prior to 1995, the AL did share, sort of. 20% was thrown into a pot and split amongst all the AL teams.

At some points in the past (1890s for sure), baseball road teams got a cut of gate, but not sure exactly how/when it changed over history, although it became a pool at some point and then went to not sharing.

NFL shares 60/40 BTW.

robc|6.14.09 @ 10:32AM|#

Thru 1953, the NL required the home team to pay the road team 22.5 cents per admission. After 1953, it went to 27.5 cents. Not sure how long that lasted.

So, at the time of the Holmes ruling, their was gate sharing.

robc|6.14.09 @ 10:33AM|#

s/their/there/

Elemenope|6.14.09 @ 12:34PM|#

And there is the more basic point that without the visiting team, there is no game (or at least not the game that people have paid to see); if the game *requires* interstate activity (in this case, travel) in order to exist, in a very direct way, it is interstate commerce.

Robert|6.14.09 @ 12:36PM|#

Our constitutional republic is for all practical purposes a time-delayed oligarchy, since a small subset of the total voting public, tiny in numbers relative to the body politic today, set the important aspects of the government's organization and powers in stone and the majority is procedurally stymied in adjusting their work.

Of course, as I regularly complain, the majority has found ways to get around the procedural limits in its way in many areas, mainly by denying the plain text of the oligarchistic constitution.

AIUI, that process occurred even more starkly in the many other countries that modeled their constitutions on that of the USA.

MNG|6.14.09 @ 12:59PM|#

When you "do business" (transact with) with people from another state, that is interstate commerce.

If the NY writer is called up by a NJ company that says "hey, we want you to drive over here and do some proofreading" that's interstate commerce. Heck, even if it simply emails him the document and he proofs it entirely in NY that's interstate commerce. The transaction, the commerce, is interstate regardless of where the labor or production is done.

|6.14.09 @ 1:22PM|#

You can still think Holmes and Luther were pieces of shit while admiring the few things they did right.

Sure, and HItler was responsible for the Autobahn.

-jcr

Elemenope|6.14.09 @ 2:50PM|#

Sure, and Hitler was responsible for the Autobahn.

Two points.

1. Any history of the Autobahn that didn't include Hitler would be necessarily incomplete.

2. There is something to be said for proportion and relevance. Building a neat highway isn't in the same general area as genocide, not in degree or in kind.

And it almost goes without saying that neither Holmes nor even Luther are a Hitler. I tend to believe that engaging in outright genocide removes you from the list of people we need be cautious about when making post-fact judgments.

robc|6.14.09 @ 4:17PM|#

lmnop,

I tend to believe that engaging in outright genocide removes you from the list of people we need be cautious about when making post-fact judgments.

Andy Jackson killed off the 2nd Bank of the US. Doesnt overcome his genocidal tendencies, but does put your statement in question.

Elemenope|6.14.09 @ 4:55PM|#

Andy Jackson killed off the 2nd Bank of the US. Doesnt overcome his genocidal tendencies, but does put your statement in question.

Not at all. The moral insuperability of genocide simply means that Jackson was a very, very bad man and his killing the bank simply means that he also managed to do at least one economically wise thing.

Elemenope|6.14.09 @ 4:57PM|#

In general I'm drawing the line at genocide because there is no way to complete this sentence: "I attempted to wipe an entire people off the face of the earth but that was justified because _________"

Nearly any other act substituted in that sentence for genocide can be justified in at least one circumstance.

robc|6.14.09 @ 11:10PM|#

"I attempted to wipe an entire people off the face of the earth but that was justified because _________"

...they were zombies.

Huh, wasnt hard at all.

Elemenope|6.14.09 @ 11:54PM|#

Zombies aren't people. Duh.

|6.15.09 @ 11:58AM|#

I bet Elemenope put the virus into the water supply at Project Purity. C'mon, admit it!

|6.15.09 @ 10:22PM|#

t almost goes without saying that neither Holmes nor even Luther are a Hitler

Seems to me that the defense attorneys at Nuremburg cited Holmes' remarks on eugenics to justify offing the gimps before they started on the Jews.

As for Luther, he'd have happily killed every last Jew on earth if he'd had the power to do. The man was a hard-core scumbag.

-jcr

|6.16.09 @ 11:22AM|#

Speaking of Wilson sucking -

Has anyone ever seen this mother of all bad predictions from Wilson's 1917 lets go to war speech

"A steadfast concert for peace can never be maintained except by a partnership of democratic nations. No autocratic government could be trusted to keep faith within it or observe its covenants. It must be a league of honor, a partnership of opinion. Intrigue would eat its vitals away; the plottings of inner circles who could plan what they would and render account to no one would be a corruption seated at its very heart. Only free peoples can hold their purpose and their honor steady to a common end and prefer the interests of mankind to any narrow interest of their own.

Does not every American feel that assurance has been added to our hope for the future peace of the world by the wonderful and heartening things that have been happening within the last few weeks in Russia? Russia was known by those who knew it best to have been always in fact democratic at heart, in all the vital habits of her thought, in all the intimate relationships of her people that spoke their natural instinct, their habitual attitude towards life."