Academic journal article Notre Dame Law Review

Holmes, Humility, and How Not to Kill Each Other

Academic journal article Notre Dame Law Review

Holmes, Humility, and How Not to Kill Each Other

Article excerpt

INTRODUCTION

Justice Oliver Wendell Holmes's dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. (1) In that opinion, Holmes sets out two core aspects of his free speech jurisprudence: his pragmatic concern about majoritarian control and his quasi-libertarian preference for the "competition of the market." (2) In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed--some aspects of our human experience remain remarkably similar to the context in which Holmes wrote.

One unchanged aspect of the human condition is our inability to know with certainty. (3) Confronted with this reality in his own day, Holmes, at times, gestured toward a foundationless relativism. (4) But even if his larger corpus hints toward that direction, his Abrams dissent can be read to sketch a less skeptical approach rooted in a kind of epistemic humility. (5) This interpretation enlists Holmes as an advocate for more charitable discourse across deep differences. (6) In today's pluralistic society, acknowledging our lack of certainty can help us move toward better dialogue with one another. At a time when we too often sacralize our own views and condemn our opponents, epistemic humility could help our society avoid escalating from weaponized words to actual weapons. This is no small matter. Holmes knew firsthand the reality of violence, having watched friends die in the Civil War and having himself been wounded three times in battle. We are nowhere close to that kind of violence, but we should not think it unimaginable. As philosopher Alasdair Maclntyre has quipped, "[m]odern politics is civil war carried on by other means." (7) The less we are able to maintain civil dialogue across deep disagreement, the more we may glimpse the possibility of actual violence. (8)

This Article suggests that the kind of epistemic humility we can find in Holmes's Abrams dissent provides an important resource for preserving a stable political order. Part I offers a reading of the famous dissent that focuses on the humility underlying Holmes's epistemic claims and explains the implications of this humility for discourse norms. Part II distinguishes epistemic humility from more skeptical views. Part III then applies a lens of epistemic humility to three kinds of truth claims in contemporary discourse: claims whose certainty is not provable (focusing on the example of religious claims), claims whose practical certainty is not yet proven (focusing on the example of medical treatments of transgender children), and claims that are certain to be false (focusing on the example of demonstrable lies).

I. EPISTEMIC HUMILITY IN HOLMES'S ABRAMS DISSENT

Holmes's Abrams dissent culminates in a remarkable paragraph that appeals to the "free trade in ideas." (9) The much-discussed market metaphor stems from Holmes's belief that the "experiment" of the First Amendment requires a willingness to see the "ultimate good" in speech-protective norms. (10) In some cases, the commitment to such norms rises above our own substantive convictions, at least enough to constrain our desire to prevail at all costs. Of course, speech-protective norms will not by themselves lead to a healthy society. (11) But Holmes's intuition--at least as I have characterized it here--is that these norms will be a necessary, albeit insufficient, condition for establishing healthy dialogue and protecting dissent in a pluralistic society.

Holmes did not always hold this view. For much of his judicial career, he regarded tolerance as simply out of reach: the solution to political disagreement was to suppress the other side. As Thomas Healy has noted of Holmes: "As a believer in society's right to impose its will on the individual, he thought persecution of dissenters made perfect sense." (12) Healy suggests that Holmes arrived at a different view in his Abrams dissent only after a sustained lobbying effort from some of his closest friends, including Judge Learned Hand and Harold Laski. …

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