Technology seems to have recreated the problem of the small republic, such that the large republic is now susceptible to the disease of faction.
In a letter to Harold Laski, Justice Oliver Wendell Holmes famously wrote:
I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.
And he meant it. Beyond such obvious examples of this philosophy, such as Buck v. Bell, where Justice Holmes upheld a law requiring the sterilization of those deemed mentally incompetent (even if there was no real evidence they were mentally incompetent), I was recently reminded of this quotation when I taught Giles v. Harris.
This key Civil Rights case was decided about 4 months after Holmes joined the Court (his 18th published opinion by my count). This case considered Alabama’s efforts to limit the franchise to those who owned property and could pass a literacy test (read and write a section of the United States Constitution). The plaintiffs asked the Court to add the names of many black citizens to the voting rolls who were eligible to vote before this requirement was imposed, but were not permitted to register.
Holmes denied his request because he said the voting regime was “fraudulent,” and it was not for the Court to add names to a fraudulent system. In other words, because the system is unfair, Holmes won’t make it more fair by adding names to an unfair system. Further, because the case was brought in equity, rather than as a constitutional challenge, it was not proper to invalidate it. In other words, after acknowledging the law was invalid, he was not willing to disturb it.
In contrast, Justice John Marshall Harlan dissented, finding the Court had jurisdiction to hear the issue, and would have found the law invalid.
As these are my views as to the jurisdiction of this Court, upon this record, I will not formulate and discuss my views upon the merits of this case. But to avoid misapprehension, I may add that my conviction is that, upon the facts alleged in the bill (if the record showed a sufficient value of the matter in dispute), the plaintiff is entitled to relief in respect of his right to be registered as a voter. I agree with MR. JUSTICE BREWER that it is competent for the courts to give relief in such cases as this.
As a result of the decision in Giles, southern states imposed a whole host of methods aimed at suppressing votes, without any limits under the 14th or 15th Amendments. In other words, “go to hell.”
Yet another case where Holmes and Harlan are on opposite sides of the issue of majority rule and constitutionally protected liberties.
Cross-Posted at JoshBlackman.com