The American Dream

Our colleagues close their challenging response by calling on Holmes. ⁷⁷ We, too, find it convenient to invoke the old master, for he appears to have been of two minds on the role of history. In a speech delivered in 1895 at a Harvard Law School Association dinner honoring Christopher Columbus Langdell, Holmes cautioned: "[T]he present has a right to govern itself so far as it can ...." ⁷⁸ Even more striking are Holmes's observations made in his 1897 article, The Path of the Law. ⁷⁹ "We must beware of the pitfall of antiquarianism," ⁸⁰ admonished Holmes. "I look forward," he added, "to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them." ⁸¹ Insofar as the Kozinski and Banner line moves beyond these admonitions, it borders on dead­letter law.

Finally, our colleagues depict us as prominent members of the "we're­going­ to­hell­in­a­handbasket" ⁸² crowd of curmudgeons. ⁸³ We appreciate this depiction nearly as much as the Devil loves holy water. Remember, the commercial culture appears low only from the lofty place of traditional First Amendment values. In one important sense, low or lofty is of no moment to us. Unless free speech law is squared with modern commercial communication, we need not sit in judgment over this matter. Till then, we are content to give the Devil his due and are willing to echo the words of the pimp in the musical theater production of Miss Saigon:

What's that I smell in the air,
the American dream.
Sweet as a new millionaire,
the American dream.
Pre­packed, ready to wear,
the American dream.
Fat, like a choc'late eclair,
when you suck out the cream.
Luck by the tail.
How can you fail?
And best of all it's for sale,
the American dream.
...
Schlitz down the drain.
Pop the champagne.
It's time we all entertain
My American dream. ⁸⁴