Eugene Debs v. Oliver Wendell Holmes Jr.

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.