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Glorious Supreme Court dissents
by Jake Highton
Aug 25, 2012 | 4508 views | 1 1 comments | 5 5 recommendations | email to a friend | print
Despite the long litany of woes heaped on the people by the Supreme Court throughout history, some great dissents have illustrated what it means to be an American. It does not mean wearing a flag pin or flying flags on pickup trucks.

It means dissents as In re Yamashita (1946). The court upheld the hanging of a Japanese general ordered by a military commission, declaring that the findings of a military panel were unreviewable.

Justice Frank Murphy dissented because the general was denied a fair trial. He wrote:

 “No exception is made to those who are accused of war crimes or those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is.

“The immutable rights of the individual belong not alone to the members of those nations that excel on the battlefield or that subscribe to democratic ideology.

“They belong to every person in the world, victor or vanquished, whatever may be his race, color or beliefs. They survive any popular passion or frenzy of the moment.

“While people in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in recklesss disregard for the rights of others.

“We live under a Constitution which is the embodiment of all the high hopes and aspirations of the new world.”

In Olmstead (1928) the court upheld wiretapping but Justices Oliver Wendell Holmes and Louis Brandeis dissented. Holmes declared it would be better for “some criminals to escape than that the government should play an ignoble part.”

Brandeis declared: “The makers of our Constitution undertook to secure conditions favourable to the pursuit of happiness. They conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men.

“Our government is the potent, the omnipresent teacher. It teaches the whole people by its example. If the government becomes a lawbreaker it breeds contempt for the law.”

Holmes wrote a marvelous dissent in Abrams (1919). He deplored the 20-year prison sentence of radicals for printing two harmless leaflets.

He pointed out that the defendants were punished  “not for what the indictment alleges but for the creed that they avow.” He concluded with a ringing declaration of free speech: “We should be eternally vigilant against any attempts to check the expression of opinions that we loathe.”

Justice Harlan Stone was the sole dissenter in Gobitis (1940) when the court upheld a school flag-salute statute. The Jehovah’s Witnesses objected because to them saluting the flag was worshiping a graven image.

“It is a long step, and one which I am unable to take, to the position that government may, as a supposed educational measure, compel public affirmations which violate religious conscience,” Stone wrote.

“The very essence of liberty is the freedom of the individual from compulsion as to what he shall think and what he shall say. This seems to me no more than the surrender of the constitutional protection of the liberty of small minorities to the popular will.”

Stone was proved right just three years later in Barnette when Justice Robert Jackson made his great statement about the Bill of Rights:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

“One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly may not be submitted to a vote. They depend on the outcome of no elections.”

In Zorach v. Clauson (1952) the court upheld a New York public school board policy of allowing students released time to attend religious classes.

Justice William Douglas--embarrassingly--wrote the majority opinion. “We are a religious people whose institutions presuppose a Supreme Being,” he wrote.

In a sizzling dissent, Jackson answered Douglas:

• “The day that this country ceases to be free for irreligion it will cease to be free for religion.”

• “The wall which the court was professing to erect between church and state has become even more warped and twisted than I expected.”

• “Today’s judgment will be more interesting to students of psychology and of the judical processes than to students of constitutional law.”

It’s dissents like these that show real American patriotism.

Jake Highton is an emeritus journalism professor at the University of Nevada, Reno. Contact him at
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Steve Vogel
September 20, 2012
A great reading
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