THE PURE-HEARTED ABRAMS CASE
[...]Mencken emerges as a new contributor to the rise of modem free speech law. "3 Although Holmes had never doubted the Supreme Court's authority to review the constitutionality of acts of Congress,4 he had always rejected the doctrine of judicial supremacy.5 That is, he did not believe t...
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| Published in: | The William and Mary Bill of Rights journal 2020-12, Vol.29 (2), p.455-502 |
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| Main Author: | |
| Format: | Article |
| Language: | eng |
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| Online Access: | Get full text |
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| Summary: | [...]Mencken emerges as a new contributor to the rise of modem free speech law. "3 Although Holmes had never doubted the Supreme Court's authority to review the constitutionality of acts of Congress,4 he had always rejected the doctrine of judicial supremacy.5 That is, he did not believe the Court had the authority to "set its opinions about the correct meaning of the Constitution above those of Congress. In the 1918 case Hammer v. Dagenhart, the Court considered the constitutionality of the Keating-Owen Child Labor Act of 1916,21 a federal law that banned the cross-border shipment of goods made by children.22 Although Justice William Day, writing for the majority, conceded that the aim of the law was admirable,23 he nevertheless concluded that Congress lacked the power to enact it.24 The Child Labor Act, he wrote, both exceeded Congress's power to regulate commerce, and indirectly invaded the states' exclusive authority over "local trade and manufacture. "37 Holmes was, in all likelihood, focused onjudicial power at the time he wrote to Beveridge because he had some doubts about applying the Thayerian method to laws that restricted speech.38 He hadjust heard arguments in Schenck v. United States, a landmark case in which the Court considered a First Amendment challenge to the speech-restrictive Espionage Act of 1917.39 And only months earlier, in the summer ofl918, Judge Learned Hand debated him over the extent to whichjudges should use their power in free speech cases.40 Unlike mostjudges of the time, who agreed with the premises of judicial supremacy,41 Hand was a Thayerian who believed Congress should interpret the Constitution for itself.42 But during his debate with Holmes, he advocated for a modification of Thayer's method.43 In reviewing a statute that criminalizes speech, he maintained, the question is not what a legislative majority could reasonably understand free speech to be, but rather what a person he considered to be enlightened andjudicious could reasonably understand it to be.44 It was, in effect, a countermajoritarian approach to freedom of expression.45 So when Hand made his case to Holmes over the course of two letters, he argued for a wide power ofjudicial review in free speech cases.46 In the first letter, Hand argued that the majority of people cannot understand the value of opinions they disagree with.47 Most people are such "poor... creature[s]," he maintained, they cannot conceive of their "opinions" as being anything less than " |
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| ISSN: | 1065-8254 1943-135X |