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Where the Supreme Court went wrong

Bill Federer recounts devastating left-turn of 'Great Dissenter'

Oliver Wendell Holmes Jr.

“Old Ironsides” is the nickname of the three-masted frigate USS Constitution, the oldest commissioned ship in the world still afloat.

Muslim Barbary Pirates of North Africa had captured the American ships Polly, Betsey, Maria, Dauphin, and Philadelphia.

The USS Constitution was sent to fight the Muslim pirates in the First Barbary War, 1803, the Battle of Tripoli Harbor, 1804, and the Battle of Derne, 1805.

When the USS Constitution returned, Francis Scott Key wrote the poem “When the Warrior Returns from the Battle Afar,” published in Boston’s Independent Chronicle, Dec. 30, 1805.

Key wrote it to the same tune which nine years later he used for the Star-Spangled Banner:

In conflict resistless each toil they endur’d
Till their foes shrunk dismay’d from the war’s desolation:
And pale beamed the Crescent, its splendor obscur’d
By the light of the Star-Bangled Flag of our nation.

Where each flaming star gleamed a meteor of war,
And the turban’d head bowed to the terrible glare.
Then mixt with the olive the laurel shall wave
And form a bright wreath for the brow of the brave.

The USS Constitution sailed against the British in the War of 1812 and caught slave traders off the coast of Africa in the 1850s.

The USS Constitution was about to be decommissioned and broken into scrap when it was saved by a poem titled “Old Ironsides,” written by poet Dr. Oliver Wendell Holmes Sr.:

Her deck, once red with heroes’ blood,
Where knelt the vanquished foe,
When winds were hurrying o’er the flood,
And waves were white below…

As dean of the Harvard Medical School, Dr. Oliver Wendell Holmes Sr., was known for proposing that diseases were spread person to person, a theory which predated the discovery of germs. Dr. Holmes caused a controversy by trying to admit the woman and the first African-Americans to Harvard Medical School. Dr. Holmes invented the “American stereoscope,” which was a 19th century hand held device to view 3-D pictures.

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Dr. Oliver Wendell Holmes, Sr., wrote a poem about Pilgrim pastor John Robinson of Leyden, published in “The Professor at the Breakfast Table,” 1860:

Before the Speedwell’s anchor swung,
Ere yet the Mayflower’s sail was spread,
While round his feet the Pilgrims clung,
The pastor spake, and thus he said:–

‘Ye go to bear the saving Word
To tribes unnamed and shores untrod:
Heed well the lessons ye have heard
From those old teachers taught of God.’

Dr. Holmes’ son, Oliver Wendell Holmes Jr., was born March 8, 1841. Oliver Wendell Holmes Jr. graduated from Harvard and enlisted in the Army against his father’s wishes. He was injured in the Civil War three times, including a gunshot wound to the chest at the Battle of Ball’s Bluff, October 1861.

Oliver Wendell Holmes Jr. edited the American Law Review, was a Harvard Law professor, and Chief Justice of the Massachusetts Supreme Court. In 1902, Theodore Roosevelt appointed Oliver Wendell Holmes Jr. to the U.S. Supreme Court. Known as “The Great Dissenter” for of his unconventional opinions advocating broad freedom of speech, he served over 30 years, to a more advanced age than any other Justice.

Oliver Wendell Holmes Jr. replied to a reporter on his 90th birthday, March 8, 1931: “Young man, the secret of my success is that at an early age I discovered I was not God.”

Unfortunately, like the Old Testament accounts that the sons of the High Priest Eli did not follow in his ways, or the sons of the Prophet Samuel did not follow in his ways, Oliver Wendell Holmes Jr. did not follow in the ways of his father. Instead of maintaining the intent of the Constitution, Oliver Wendell Holmes Jr. helped transform the Constitution into “a constantly evolving thing” through a process he called “legal realism.”

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As described by his biographer in “The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes” (1991), Holmes’ theory of “legal realism”: “… shook the little world of lawyers and judges who had been raised on Blackstone’s theory that the law, given by God Himself, was immutable and eternal and judges had only to discover its contents. It took some years for them to come around to the view that the law was flexible, responsive to changing social and economic climates. … Holmes had … broken new intellectual trails … demonstrating that the corpus of the law was neither ukase (an edict) from God nor derived from Nature, but … was a constantly evolving thing, a response to the continually developing social and economic environment.”

Holmes Jr. contributed to the development of two distinct categories of Supreme Court Justices:

The father, Oliver Wendell Holmes Sr., wrote the poem “A Voice of the Loyal North,” on the occasion of the National Fast Day, Jan. 4, 1861, proclaimed by President James Buchanan prior to the Civil War:

We sing ‘Our Country’s’ song to-night
With saddened voice and eye;
Her banner droops in clouded light
Beneath the wintry sky …

… Enough of speech! the trumpet rings;
Be silent, patient, calm,
– God help them if the tempest swings
The pine against the palm! …

… But harder still for those who learn
The truth forgot so long;
When once their slumbering passions burn,
The peaceful are the strong! …

… The eagle hold his mountain height, –
The tiger pace his den!
Give all their country, each his right!
God keep us all! Amen!

Brought to you by AmericanMinute.com.

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