Clear and Present Dangers: The Importance of Ideas and the Bowels in the Cosmos

By Baker, Thomas E. | Constitutional Commentary, Winter 1999 | Go to article overview

Clear and Present Dangers: The Importance of Ideas and the Bowels in the Cosmos


Baker, Thomas E., Constitutional Commentary


I wonder if cosmically an idea is any more important than the bowels.

Yours ever, O.W.H.(1)

Wednesday, June 19, 1918 -- an otherwise unremarkable day in history -- was the morning of a chance meeting between Justice Oliver Wendell Holmes, Jr., in the prime of his formidable judicial career, and a little-known district judge nearly half his age named Learned Hand.(2) By coincidence, the two judges shared a train ride from New York City to Boston. They had a spirited argument about when the majority can silence the speech of a minority. Perhaps they were attracted to each other because they disagreed so agreeably, each recognizing in the other a mind with which to be reckoned. During that conversation their acquaintanceship began to develop into an intellectual friendship that would last the rest of their lives.

Even though he had been a judge only nine years to Holmes's thirty-five, Hand had an advantage because he had written a district court opinion on the constitutional issue(3) -- no such case had yet presented itself to the High Court for decision- and writing, of course, is the most rigorous form of thinking. Hand was emboldened by the rapport of their shared train compartment to pursue Holmes further in letters. Going back and forth several times, each elaborating on his argument with the smell of the lamp, Holmes tried to understand their differences and Hand tried to persuade him that their differences mattered greatly. Hand's persistence coincided with a back channel campaign of several of Holmes's salon friends who urged on him a more progressive attitude toward dissident speech. It was a brave challenge to beard the lion of the law, but they succeeded. Their arguments were magnified through Holmes's intense intellect, and focused on a then-undeveloped area of constitutional law. Holmes became a judicial champion of the rights of conscience. Modern constitutionalists continue to teach his opinions as part of the canon.

Historians and biographers have carefully chronicled how Holmes came to be persuaded to wrap his great mind around the First Amendment and how his thinking and insights eventually became part of the warp and woof of modern free speech doctrine.(4) But let us suppose an alternative sequence of events.

Suppose that chance meeting did not take place. Suppose Holmes was not feeling up to traveling that morning and simply decided to postpone his trip until the next day. After all, he was 77 years old and, though he enjoyed reasonably good health, he did suffer from intestinal problems from a Civil War bout with dysentery. How would constitutional law be different if Hand had taken the Wednesday train and Holmes had taken the Thursday train, each to ride alone with his thoughts, never the two minds to meet?

Without that affirming conversation on the train and the validation of the follow-up correspondence, Hand might have been too timid to take on Holmes in an ego-to-ego fight over something so important. Holmes was his hero, after all. Hand was plagued by deep self-doubts all his life, even after he achieved great stature as a jurist. Furthermore, Hand had been reversed rather unceremoniously by his immediate superiors on the Second Circuit(5) in the very case he was urging on the Justice, and his opinion had gone largely ignored.

Without the worshipful influence of his judicial protege, Holmes might have been sufficiently cocksure to resist the entreaties of his academic friends. He had a rather low opinion of legal scholarship. He had long taken a crabbed view of claims of self-expression, both on the Supreme Court of Massachusetts(6) and on the Supreme Court of the United States.(7) His preliminary views on the First Amendment might have been preserved intact and whole, like an ant in amber, fossilized for all time. We might imagine what the evolutionary record of the First Amendment might read like without Holmes's personal transformation and, in turn, without the transformative influence he wrought on the Supreme Court. …

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