Words carved in stone have adorned the public buildings of democracies since ancient Athens. In this country especially the art of the stone carver has been used to express civic ideals. The familiar example is the inscription above the great columns of the Supreme Court building in Washington, DC: EQUAL JUSTICE UNDER LAW.

Inscriptions are an important feature of the new United States Courthouse in Boston. There are over thirty of them, inside and outside the building. Like the motto that the Supreme Court presents to the world, they articulate the hopes - and the commitments - of our society.

Each of the inscriptions is a separate reflection about the law. They are history. They are passion. Together they form a discussion about what the law can and should do in a free society. They are a democratic conversation.

Passion is not far below the surface of the quotation from Justice Oliver Wendell Holmes on one wall of the Jury Assembly Hall, and it provides an insight into the history of the democratic conversation. The quotation is from Holmes's dissenting opinion in Abrams v. United States, decided in 1919.The issue was this: President Wilson had sent U. S. forces to Russia after the Bolshevik Revolution. A group of radicals threw pamphlets from the roofs of buildings in New York City objecting to Wilson's policy. For this insignificant gesture - Holmes called the unsigned pamphlets "puny anonymities" - group members were prosecuted on charges of sedition, convicted and sentenced to twenty years in prison. In the jingoistic atmosphere of World War I, few objected. Moreover, although the First Amendment to the Constitution forbade Congress to abridge "the freedom of speech," the Supreme Court had never - not once - invoked the amendment to protect the speech of radical dissidents.

When the Supreme Court upheld the convictions and savage sentences in the Abrams case, Justice Holmes wrote the first Supreme Court opinion asserting the fundamental value of freedom of speech in our constitutional system. Joined in dissent by Justice Louis D. Brandeis, he began by saying that it was "perfectly logical" to persecute people for their opinions. If you have no doubt about your ideas or your power, he said, you "naturally" want to "sweep away all opposition." But then he went on with the words presented in raised lettering on the wall of the Jury Assembly Hall, urging that truth is better reached by "free trade in ideas." And still his judicial passion was not spent.

"That at any rate is the theory of our constitution," Holmes wrote. "It is an experiment, as all life is an experiment. . . . While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death."

What extraordinary language. But wasn't it wasted in a dissenting opinion? Not at all. Courts that apply in concrete cases the majestic generalities of the Constitution – "freedom of speech," "equal protection of the laws" - can be moved to change their understanding by wisdom and experience. And dissenting opinions are part of that process.

For a decade after the Abrams decision, the Supreme Court continued to uphold the repression of radical speakers with Holmes and Brandeis dissenting. They were as eloquent as Pericles in their defense of liberty. Indeed, Brandeis was influenced by Pericles' funeral oration to the ancient Athenians in his 1927 opinion in Whitney v. California, a passage from which appears on the wall opposite the Holmes quotation in the Jury Assembly Hall. Gradually their eloquence persuaded the country and the Court. Their passion has become the orthodox view of the First Amendment.

There is a paradox in the American political system, and there always has been. We live in a democracy, and we elect our legislators and executives, federal and state. But the Constitution puts limits on what elected politicians can do. And judges often must decide, from case to case, where those limits are. They do so, over time, in a conversation among themselves and with lawyers and the public. That is the conversation overheard among the stone carvings and inscriptions of this building. It is a conversation in which all those encountering these inscriptions are invited to participate.

The paradox is more apparent than real, for the world learned, in the twentieth century, that democracy is not safe without protection of fundamental rights. And so countries around the world, from Ireland to South Africa, have copied the American system of judicially enforceable constitutional rights.

It is an experiment, Holmes said, as all life is an experiment. But it has worked for more than two hundred years.

- Anthony Lewis, August 1998

(Anthony Lewis, a columnist for the New York Times, has written extensively about the Supreme Court of the United States.)

View the carvings and inscriptions

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