Meditating upon the American judiciary's solemn deeds, I sometimes wish that Justice John Marshall had never been born, or, if he had to be born, that he had become one of his century's great phlebotomists rather than jurists. It was he who first greatly expanded the role of the judicial bench; and today his dizzy successors have transformed the courts into a public menace, an adversity for all conscientious citizens and a boon to society's pests. Not only is our judicial system unable to protect the law-abiding from harassment, it has now taken the side of the harassers and duly joins with them in molesting the public. Dwell for a moment on the predicament of Mrs. Henry Kissinger.

Last month her husband, en route to a Boston hospital for heart surgery, was assailed at Newark airport in New Jersey by a foul-mouthed female member of some right-wing political cult, who taunted him to her heart's content. Mrs. Kissinger dispatched the creature and promptly became the victim of a civil suit for allegedly laying rough hands upon the crank's person. Now Mrs. Kissinger is faced with the expense of hiring a lawyer to spring her and, more painful still, a day in Newark Municipal Court.

Mrs. Kissinger's tormentor is allowed by judicial decree to prowl through the airports of the Republic distributing idiotic tracts and pestering travelers, all because some of Justice Marshall's successors are unable to distinguish an airport from a public forum and legitimate activity from quackery. For over 20 years our jurists have been denaturing the meaning of the First Amendment to the point where they have enlarged the rights of cranks, diminished the rights of the civilized and endangered freedom--for once a society loses the capacity to define freedom it is only a matter of time before it loses freedom too. Moreover, the progressive destruction of the First Amendment has been ruinous to such noble institutions as Chicago's Bughouse Square.

For generations almost every city and village in the land has had a Bughouse Square in one form or another (not to mention our state universities). Sometimes the prophets of new and exotic thought have gathered at a well- known street corner or park. Sometimes they have had only a favored front porch. Chicago always had at least two such gathering points, the aforementioned Bughouse Square, which was actually Newberry Square across from Newberry Library, and the Chicago City Council.

When I was growing up in Chicago I never was allowed near the city council, but I did spend many illuminating hours at Bughouse Square in the company of hundreds of other assiduous students of the science of politics. There one could hear oratory in behalf of every great idea: nudism, family planning, world government through world law, possibly even supply-side economics. Sometimes, looking back on those days, I think that the agenda for the 1970s was being hammered out right there. Were future senators and congressmen standing by taking notes? I wonder.

At any rate, today most of the nation's Bughouse Squares are empty, abandoned thanks to the decisions of judges unable to discern that there are some places where political haranguers ought not to be, for instance airports. And there are some liberties that quacks ought not to be able to take out on others, for instance taunting busy travelers en route to important appointments.

I am aware that this is a shocking statement to some. They believe that as soon as one engages one's intellect to distinguish between legitimate political expression and quackery or perversity or criminality one becomes an enemy of freedom. These vicarious libertarians are as much a threat to the free society as any other political extremists. One turns for relief to Alexander Solzhenitsyn. At Harvard in the late 1970s he astutely analyzed our jurists' foolishness. Criticizing the fatuous legalism of our society, he derided the notion that every "conflict is solved according to the letter of the law, and this is considered to be the supreme solution." His solution was restraint, prudence. It is clearly imprudent to allow airports to become the battlegrounds for the natural fauna of Bughouse Square.