Document Type
Book Chapter
Publication Date
2018
Abstract
Learned Hand, Oliver Wendell Holmes, and Louis Brandeis all had the same problem. They were troubled — Holmes less than the others and later, but eventually — by the widespread and mean-spirited persecution of dissenters they observed as the United States entered World War I and then reacted to the Bolshevik Revolution. Today, most persons so troubled would think that constitutional rights, and particularly the freedom of speech, exist for the very purpose of countermanding zealous political majorities that deny or neglect the claims of dissenters. But Hand, Holmes, and Brandeis, each by his own distinctive path, came to the speech disputes of 1917–1919 with a well-developed regard for majority rule and jurisprudential commitments that denied the existence of natural rights and treated positive rights as exceptional, confined, and instrumental. Ruling that fundamental rights trump majority preferences was for them a heavy lift.
Disciplines
Constitutional Law | First Amendment | Law
Recommended Citation
Vincent A. Blasi,
Rights Skepticism and Majority Rule at the Birth of the Modern First Amendment,
The Free Speech Century, Geoffrey R. Stone & Lee C. Bollinger (Eds.), Oxford University Press
(2018).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4419