Oliver Wendell Holmes, Jr. (essay date 1896)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 9830

SOURCE: "The Path of the Law," in Oliver Wendell Holmes, Jr.,—What Manner of Liberal?, edited by David H. Burton, Robert E. Kreiger Publishing Company, 1979, pp. 21-37.

[In the following essay, originally published in 1896 in the Harvard Law Review, Holmes details his belief that legal considerations should rely on...

(The entire section contains 133613 words.)

Unlock This Study Guide Now

Start your 48-hour free trial to unlock this Oliver Wendell Holmes, Jr. study guide. You'll get access to all of the Oliver Wendell Holmes, Jr. content, as well as access to more than 30,000 additional guides and more than 350,000 Homework Help questions answered by our experts.

  • Biography
  • Critical Essays
  • Reference
Start your 48-Hour Free Trial

SOURCE: "The Path of the Law," in Oliver Wendell Holmes, Jr.,—What Manner of Liberal?, edited by David H. Burton, Robert E. Kreiger Publishing Company, 1979, pp. 21-37.

[In the following essay, originally published in 1896 in the Harvard Law Review, Holmes details his belief that legal considerations should rely on empiricism and reason rather than traditional absolutes.]

When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called oracles of the law. For the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thorougly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophesies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into text-books, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and to consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court;—and so of a legal right.

The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished.

I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained.

The first thing for a business-like understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

I take it for granted that no hearer of mine will misrepresent what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.

I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of first importance for the object which we are here to consider, a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some stage of the argument, and so to drop into fallacy. For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. No one will deny that wrong statutes can be and are enforced, and we should not all agree as to which were the wrong ones.

The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this kind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Take again a notion which as popularly understood is the widest conception which the law contains;—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and being taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is shown by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question? In both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. If it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by the law. The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. One is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. And that I believe is all. You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law.

Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many other cases, I am content to abide with him. In Bromage v. Genning, a prohibition was sought in the King's Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergant Harris for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. This goes further than we should go now, but it shows what I venture to say has been the common law point of view from the beginning, although Mr. Harriman, in his very able little book upon Contracts has been misled, as I humbly think, to a different conclusion.

I have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. These are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. But I hardly think it advisable to shape general theory from the exception, and I think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law as those inappropriate terms.

I mentioned, as other examples of the use of the law of words drawn from morals, malice, intent, and negligence. It is enough to take malice as it is used in the law of civil liability for wrongs,—what we lawyers call the law of torts,—to show you that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. Three hundred years ago a parson preached a sermon and told a story out of Fox's Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. It happened that Fox was wrong. The man was alive and chanced to hear the sermons, and thereupon he sued the parson. Chief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. But nowadays no one doubts that a man may be liable without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. In stating the case in pleading, we still should call the defendant's conduct malicious; but, in my opinion, at least, the word means nothing about motives, or even about the defendant's attitude toward the future, but only signifies that the tendency of his conduct under the known circumstances was very plainly to cause the plaintiff temporal harm.

In the law of contract the use of moral phraseology has led to equal confusion, as I have shown in part already, but only in part. Morals deal with the actual internal state of the individual's mind, what he actually intends. From the time of the Romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other's assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to them at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs,—not on the parties' having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another,—to sight or to hearing—on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. If it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read,—none, for example, if the acceptance be snatched from the hand of the offerer by a third person.

This is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. I know of none which are not easy to answer, but what I am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. Of the first of these I have said enough. I hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.

So much for the limits of the law. The next thing which I wish to consider is what are the forces which determine its content and its growth. You may assume with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. In every system there are such explanations and principles to be found. It is with regard to them that a second fallacy comes in, which I think it important to expose.

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon with these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and, if they would take more trouble, agreement inevitably would come.

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self-evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer's. Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.

Why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. Why is a man at liberty to set up a business which he knows will ruin his neighbor? It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places. Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus.

Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really the question how far it is desirable that the public should insure the safety of those whose work it uses. It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitarily interrupting the regular course of recovery, most likely in the case of an unusually conspicuous plaintiff, and therefore better done away with. On the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum.

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the Constitutions, and that in some courts now principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.

So much for the fallacy of logical form. Now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. We still are far from the point of view which I desire to see reached. No one has reached it or can reach it as yet. We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. It is perfectly natural and right that it should have been so. Imitation is a necessity of human nature, as has been illustrated by a remarkable French writer, M. Tarde, in an admirable book, "Les Lois de l'Imitation." Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. The reason is a good one, because our short life gives us no time for a better, but it is not the best. It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. He is content if he can prove them best for here and now. He may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. Still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.

At present, in very many cities, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the backletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view. We think it desirable to prevent one man's property being misappropriated by another, and so we make larceny a crime. The evil is the same whether the misappropriation is made by a man into whose hands the owner has put the property, or by one who wrongfully takes it away. But primitive law in its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of its definition of the crime. In modern times the judges enlarged the definition a little by holding that, if the wrong-doer gets possession by a trick or device, the crime is committed. This really was giving up the requirement of a trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether. That, however, would have seemed too bold, and was left to statute. Statutes were passed making embezzlement a crime. But the force of tradition caused the crime of embezzlement to be regarded as so far distinct from larceny that to this day, in some jurisdictions at least, a slip corner is kept open for thieves to contend, if indicted for larceny, that they should have been indicted for embezzlement, and if indicted for embezzlement, that they should have been indicted for larceny, and to escape on that ground.

Far more fundamental questions still await a better answer than that we do as our fathers have done. What have we better than a blind guess to show that the criminal law in its present form does more good than harm? I do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal's wife and children than on himself. I have in mind more far-reaching questions. Does punishment deter? Do we deal with criminals on proper principles? A modern school of Continental criminalists plumes itself on the formula, first suggested, it is said, by Gall, that we must consider the criminal rather than the crime. The formula does not carry us very far, but the inquiries which have been started look toward an answer of my questions based on science for the first time. If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion. The study of criminals has been thought by some well known men of science to sustain the former hypothesis. The statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. But there is weighty authority for the belief that, however this may be, "not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal."

The impediments to rational generalization, which I illustrated from the law of mercy, are shown in the other branches of the law, as well as in that of crime. Take the law of tort or civil liability for damages apart from contract and the like. Is there any general theory of such liability, or are the cases in which it exists simply to be enumerated, and to be explained each on its special ground, as is easy to believe from the fact that the right of action for certain well known classes of wrongs like trespass or slander has its special history for each class? I think that there is a general theory to be discovered, although resting in tendency rather than established and accepted. I think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except in cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant. I think that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances known to the actor, although in some cases of privilege malice may mean an actual malevolent motive, and such a motive may take away a permission knowingly to inflict harm, which otherwise would be granted on this or that ground of dominant public good. But when I stated my view to a very eminent English judge the other day, he said: "You are discussing what the law ought to be; as the law is, you must show a right. A man is not liable for negligence unless he is subject to a duty." If our difference was more than a difference in words, or with regard to the proportion between the exceptions and the rule, then, in his opinion, liability for an act cannot be referred to the manifest tendency of the act to cause temporal damage in general as a sufficient explanation, but must be referred to the special nature of the damage, or must be derived from some special circumstances outside of the tendency of the act, for which no generalized explanation exists. I think that such a view is wrong, but it is familiar, and I dare say generally is accepted in England.

Everywhere the basis of principle is tradition, to such an extent that we even are in danger of making the role of history more important than it is. The other day Professor Ames wrote a learned article to show, among other things, that the common law did not recognize the defense of fraud in actions upon specialties, and the moral might seem to be that the personal character of the defence is due to its equitable origin. But if, as I have said, all contracts are formal, the difference is not merely historical, but theoretic, between defects of form which prevent a contract from being made, and mistaken motives which manifestly could not be considered in any system that we should call rational except against one who has privy to those motives. It is not confined to specialties, but is of universal application. I ought to add that I do not suppose that Mr. Ames would disagree with what I suggest.

However, if we consider the law of contract, we find it full of history. The distinctions between debt, covenant, and assumpsit are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical. The doctrine of consideration is merely historical. The effect given to a seal is to be explained by history alone.—Consideration is a mere form. Is it a useful form? If so, why should it not be required in all contracts? A seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal.—Why should any merely historical distinction be allowed to affect the rights and obligations of business men?

Since I wrote this discourse I have come on a very good example of the way in which tradition not only overrides rational policy, but overrides it after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning. It is the settled law of England that a material alteration of a written contract by a party avoids it as against him. The doctrine is contrary to the general tendency of the law. We do not tell a jury that if a man ever has lied in one particular he is to be presumed to lie in all. Even if a man has tried to defraud, it seems no sufficient reason from preventing him from proving the truth. Objections of like nature in general go to the weight, not to the admissibility, of evidence. Moreover, this rule is irrespective of fraud, and is not confined to evidence. It is not merely that you cannot use the writing, but that the contract is at an end. What does this mean? The existence of a written contract depends on the fact that the offerer and offeree have interchanged their written expressions, not on the continued existence of those expressions. But in the case of a bond the primitive notion was different. The contract was inseparable from the parchment. If a stranger destroyed it, or tore off the seal, or altered it, the obligee could not recover, however free from fault, because the defendant's contract, that is, the actual tangible bond which he had sealed, could not be produced in the form in which it bound him. About a hundred years ago Lord Kenyon undertook to use his reason on this tradition, as he sometimes did to the detriment of the law, and, not understanding it, said he could see no reason why what was true of a bond should not be true of other contracts. His decision happened to be right, as it concerned a promissory note, where again the common law regarded the contract as inseparable from the paper on which it was written, but the reasoning was general, and soon was extended to other written contracts, and various absurd and unreal grounds of policy were invented to account for the enlarged rule.

I trust that no one will understand me to be speaking with disrespect of the law, because I criticize it so freely. I venerate the law, and especially our system of law, as one of the vastest products of the human mind. No one knows better than I do the countless number of great intellects that have spent themselves in making some addition or improvement, the greatest of which is trifling when compared with the mighty whole. It has the final title to respect that it exists, that it is not a Hegelian dream, but a part of the lives of men. But one may criticise even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart.

We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward 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. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. In the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. We learn that for everything we have to give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect.

There is another study which sometimes is undervalued by the practical minded, for which I wish to say a good word, although I think a good deal of pretty poor stuff goes under that name. I mean the study of what is called jurisprudence. Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant. The same state of mind is shown in all our common digests and textbooks. Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis of prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. I have illustrated their importance already. If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen's Criminal Law on the subject of possession, and then turning to Pollock and Wright's enlightened book. Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. The trouble with Austin was that he did not know enough English law. But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock. Sir Frederick Pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models.

The advice of the olders to young men is very apt to be as unreal as a list of the hundred best books. At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law. I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse,—the purpose for which Lord Coke recommended Bracton. If that is all that is wanted, the title "De Regulis Juris Antiqui" can be read in an hour. I assume that, if it is well to study the Roman law, it is well to study it as a working system. That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must be explained. If any one doubts me, let him read Keller's "Der Romische Civil Process und die Actionen," a treatise on the praetor's edict, Muirhead's most interesting "Historical Introduction to the Private Law of Rome," and, to give him the best chance possible, Sohm's admirable Institutes. No. The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and, finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.

We have too little theory in the law rather than too much, especially on this final branch of study. When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation. Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant. A man is sued for trespass upon land, and justifies under a right of way. He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly, to be supposed, there has been no such neglect, and the right of way has not been acquired. But if I were the defendant's counsel, I should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription. But the connection is further back than the first recorded history. It is in the nature of man's mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect, having allowed the gradual disassociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.

I have been speaking about the study of the law, and I have said next to nothing of what commonly is talked about in that connection,—text-books and the case system, and all the machinery with which a student comes most immediately in contact. Nor shall I say anything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. But the weak and foolish must be left to their folly. The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. One of his deductions was, "For lack of imagination, five dollars." The lack is not confined to valets. The object of ambition, power, generally presents itself nowadays in the form of money alone. Money is the most immediate form, and is a proper object of desire. "The fortune," said Rachel, "is the measure of the intelligence." That is a good text to waken people out of a fool's paradise. But, as Hegel says, "It is in the end not the appetite, but the opinion, which has to be satisfied." To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples read Mr. Leslie Stephen's "History of English Thought in the Eighteenth Century," and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspect of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

H. L. Mencken (essay date 1930)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 2964

SOURCE: "Mr. Justice Holmes," in A Mencken Chrestomathy, edited by H. L. Mencken, Alfred A. Knopf, 1942, pp. 258-65.

[In the following review of The Dissenting Opinions of Mr. Justice Holmes, originally published in the American Mercury in May 1930, Mencken pronounces Holmes's decisions "interesting as literature" because of his "easy-going cynicism, " but argues against the widely-held notion that Holmes was a political liberal defending freedom.]

Mr. Justice Holmes's dissenting opinions [presented in The Dissenting Opinions of Mr. Justice Holmes] have got so much fawning praise from Liberals that it is somewhat surprising to discover that Mr. Lief is able to muster but fifty-five of them, and even more surprising to hear from Dr. Kirchwey that in only one case did the learned justice stand quite alone, and that the cases "in which he has given expression to the judgment of the court, or in which he has concurred in its judgment, far out-number, in the ratio of eight or ten to one, those in which he felt it necessary to record his dissent."

There is even more surprising stuff in the opinions themselves. In three Espionage Act cases, including the Debs case, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside summarily by any jury that has been sufficiently inflamed by a district attorney itching for higher office. In Fox vs. the State of Washington we learn that any conduct "which shall tend to encourage or advocate disrespect for the law" may be made a crime, and that the protest of a man who believes that he has been jailed unjustly, and threatens to boycott his persecutors, may be treated as such a crime. In Moyer vs. Peabody it appears that the Governor of a State, "without sufficient reason but in good faith," may call out the militia, declare martial law, and jail anyone he happens to suspect or dislike, without laying himself open "to an action after he is out of office on the ground that he had no reasonable ground for his belief." And in Weaver vs. Palmer Bros. Co. there is the plain inference that in order to punish a theoretical man, A, who is suspected of wrong-doing, a State Legislature may lay heavy and intolerable burdens upon a real man, B, who has admittedly done no wrong at all.

I find it hard to reconcile such notions with any plausible concept of Liberalism. They may be good law, but it is impossible to see how they can conceivably promote liberty. My suspicion is that the hopeful Liberals of the 20s, frantically eager to find at least one judge who was not violently and implacably against them, seized upon certain of Mr. Justice Holmes's opinions without examining the rest, and read into them an attitude that was actually as foreign to his ways of thinking as it was to those of Mr. Chief Justice Hughes. Finding him, now and then, defending eloquently a new and uplifting law which his colleagues proposed to strike off the books, they concluded that he was a sworn advocate of the rights of man. But all the while, if I do not misread his plain words, he was actually no more than an advocate of the rights of law-makers. There, indeed, is the clue to his whole jurisprudence. He believed that the law-making bodies should be free to experiment almost ad libitum, that the courts should not call a halt upon them until they clearly passed the uttermost bounds of reason, that everything should be sacrificed to their autonomy, including, apparently, even the Bill of Rights. If this is Liberalism, then all I can say is that Liberalism is not what it was when I was young.

In those remote days, sucking wisdom from the primeval springs, I was taught that the very aim of the Constitution was to keep law-makers from running amok, and that it was the highest duty of the Supreme Court, following Marbury vs. Madison, to safeguard it against their forays. It was not sufficient, so my instructors maintained, for Congress or a State Legislature to give assurance that its intentions were noble; noble or not, it had to keep squarely within the limits of the Bill of Rights, and the moment it went beyond them its most virtuous acts were null and void. But Mr. Justice Holmes apparently thought otherwise. He held, it would seem, that violating the Bill of Rights is a rare and difficult business, possible only by summoning up deliberate malice, and that it is the chief business of the Supreme Court to keep the Constitution loose and elastic, so that blasting holes through it may not be too onerous. Bear this doctrine in mind, and you will have an adequate explanation, on the one hand, of those forward-looking opinions which console the Liberals—for example, in Lochner vs. New York (the bakery case), in the child labor case, and in the Virginia case involving the compulsory sterilization of imbeciles—and on the other hand, of the reactionary opinions which they so politely overlook—for example, in the Debs case, in Bartels vs. Iowa (a war-time case, involving the prohibition of foreign-language teaching), in the Mann Act case (in which Dr. Holmes concurred with the majority of the court, and thereby helped pave the way for the wholesale blackmail which Mr. Justice McKenna, who dissented, warned against), and finally in the long line of Volstead Act cases.

Like any other man, of course, a judge sometimes permits himself the luxury of inconsistency. Mr. Justice Holmes, it seems to me, did so in the wiretapping case and again in the Abrams case, in which his dissenting opinion was clearly at variance with the prevailing opinion in the Debs case, written by him. But I think it is quite fair to say that his fundamental attitude was precisely as I have stated it. Over and over again, in these opinions, he advocated giving the legislature full head-room, and over and over again he protested against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at helpless minorities. If what he said in some of those opinions were accepted literally there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.

The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased, save indirectly, to be even the creature of the people: it is the creature, in the main, of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty. Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle—a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.

It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even legislatures may not go. The Supreme Court, in Marbury vs. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the corner-stone of American constitutional law. But in late years the court has taken the opposite line, and public opinion seems to support it. Certainly Dr. Holmes did not go as far in that direction as some of his brother judges, but equally certainly he went far enough. To call him a Liberal is to make the word meaningless.

Let us, for a moment, stop thinking of him as one, and let us also stop thinking of him as a littérateur, a reformer, a sociologist, a prophet, an evangelist, a metaphysician; instead, let us think of him as something that he undoubtedy was in his Pleistocene youth and probably remained ever after, to wit, a soldier. Let us think of him, further, as a soldier extraordinarily ruminative and articulate—in fact, so ruminative and articulate as to be, in the military caste, almost miraculous. And let us think of him still further as a soldier whose natural distaste and contempt for civilians, and corollary yearning to heave them all into Hell, was cooled and eased by a stream of blood that once flowed through the Autocrat of the Breakfast Table—in brief, as a soldier beset by occasional doubts, hesitations, flashes of humor, bursts of affability, moments of sneaking pity. Observe that I insert the wary word, "occasional"; it surely belongs there. On at least three days out of four, during his long years on the bench, the learned justice remained the soldier—precise, pedantic, unimaginative, even harsh. But on the fourth day a strange amiability overcame him, and a strange impulse to play with heresy, and it was on that fourth day that he acquired his singular repute as a sage.

There is no evidence in Dr. Holmes's decisions that he ever gave any really profound thought to the great battle of ideas which raged in his time. He was interested in those ideas more or less, and now and then his high office forced him to take a hand in the battle, but he never did so with anything properly describable as passionate conviction. The whole uproar, one gathers, seemed fundamentally foolish to him. Did he have any genuine belief in democracy? Apparently the answer must be no. It amused him as a spectacle, and there were times when he was in the mood to let that spectacle run on, and even to help it on, but there were other times when he was moved to haul it up with a sharp command. That, no doubt, is why his decisions show so wide a spread and so beautiful an inconsistency, baffling to those who would get him into a bottle. He could, on occasion, state the case for the widest freedom, whether of the individual citizen or of the representative lawmaker, with a magnificent clarity, but he could also on occasion give his vote to the most brutal sort of repression. It seems to me that the latter occasions were rather more numerous than the former. And it seems to me again, after a very attentive reading of his decisions, that what moved him when he was disposed to be complacent was far less a positive love of liberty than an amiable and half contemptuous feeling that those who longed for it ought to get a horse-doctor's dose of it, and thereby suffer a really first-rate belly-ache.

This easy-going cynicism of his is what gave his decisions their peculiar salacity, and made them interesting as literature. It separated them sharply from the writings of his fellow judges, most of whom were frankly dull dogs. He had a considerable talent for epigram, and like any other man who possesses it was not shy about exercising it. I do not go so far as to allege that it colored and conditioned his judgment, that the apt phrase actually seduced him, but certainly it must be plain that once his mood had brought him to this or that judgment the announcement of it was sometimes more than a little affected by purely literary impulses. Now and then, alas, the result was far more literature than law. I point, for example, to one of his most celebrated epigrams: "Three generations of morons are enough." It is a memorable saying, and its essential soundness need not be questioned, but is it really judicial, or even legal, in form and content; does it offer that plain guidance which the higher courts are supposed to provide? What of the two generations: are they too little? I should not want to be a nisi prius judge if all the pronunciamentoes of the Supreme Court were so charmingly succinct and memorable—and so vague.

The average American judge, as everyone knows, is a mere rabbinical automaton, with no more give and take in his mind than you will find in the mind of a terrier watching a rathole. He converts the law into a series of rubberstamps, and brings them down upon the scalped skulls of the just and unjust alike. The alternative to him, as commonly conceived, is quite as bad—an uplifter in a black robe, eagerly gulping every new brand of Peruna that comes out, and converting his pulpit into a sort of soapbox. Mr. Justice Holmes was neither, and he was better than either. He was under no illusions about the law. He knew very well that its aim was not to bring in the millennium, but simply to keep the peace. But he believed that keeping the peace was an art that could be practised in various ways, and that if one of them was by using a club then another was by employing a feather. Thus the Liberals, who long for tickling with a great and tragic longing, were occasionally lifted to the heights of ecstasy by the learned judge's operations, and in fact soared so high that they were out of earshot of next day's thwack of the club. I suspect that Dr. Holmes himself, when he heard of their enthusiasm, was quite as much amused as flattered. Such misunderstandings are naturally grateful to a skeptic, and they are doubly grateful to a skeptic of the military order, with his professional doubt of all persons who think that they think. I can imagine this skepticism—or, if you chose, cynicism—giving great aid and comfort to him on January 1, 1932, when he entered the chamber of the Supreme Court for the last time, and read his last opinion.

The case was that of one James Dunne, an humble bootician of Eureka, Calif., and the retiring justice delivered the majority opinion. Dunne had been tried in California on an indictment embracing three counts. The first charged him with keeping liquor for sale, the second with possessing it unlawfully, and the third with selling it. The jury acquitted him on the second and third counts, but found him guilty on the first. His counsel thereupon appealed. The evidence as to all three offenses, it was shown, was precisely the same. If the prisoner was innocent of two of them, then how could he be guilty of the third? Mr. Justice Holmes, speaking for himself and all his fellow justices save one, swept away this question in the following words:

Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate offense. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold.

I am not learned in the law, but the special gifts of a lawyer are surely not necessary to see that this judgment disposed completely of the prohibition of double jeopardy in Article I of the Bill of Rights. What it said, in plain English, is that a man may be tried over and over again for what is essentially the same offense, and that if one, two, three or n juries acquit him he may yet be kept in the dock, and so on ad infinitum until a jury is found that will convict him. And what such a series of juries may do may be done by one single jury—by the simple device of splitting his one offense into two, three, four or ç offenses, and then trying him for all of them. In order to go free he must win verdicts of not guilty on every count. But in order to jail him all the prosecuting attorney needs is a verdict of guilty on one.

I commend this decision to Liberals who still cherish the delusion that Dr. Holmes belonged to their lodge. Let them paste it in their Sunday go-to-meeting hats. And I commend to them also the astounding but charming fact that the one judge who dissented was Mr. Justice Pierce Butler, for many years the chief demon in their menagerie. This is what he said:

Excluding the possession negatived by the finding under the second count, there is nothing of substance left in the first count, for its specifications were limited to the keeping for sale of the identical drinks alleged in the second count to have been unlawfully possessed. . . . The evidence having been found insufficient to establish such possession, it cannot be held adequate to warrant conviction under the first count. The finding of not guilty is a final determination that possession, the gravamen of both counts, was not proved.

Felix Frankfurter (essay date 1938)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 7948

SOURCE: "Property and Society," in Mr. Justice Holmes and the Supreme Court, Cambridge, Mass.: Harvard University Press, 1938, pp. 13-45.

[In the following essay, Frankfurter discusses Holmes's views on constitutional property rights issues.]

The United States got under way nearly one hundred and fifty years ago, and only seventy-seven men have shaped its destiny, in so far as law has shaped it. To understand what manner of men they were who have sat on the Supreme Bench is vital for an understanding of the Court and its work. Yet how meager is our insight into all but a very few. A lawyer's life before he becomes a judge, like that of an actor, is largely writ in water unless he has had a rich political career. And legal opinions are not conducive to biographical revelation. On the whole, we have a pitifully inadequate basis for understanding the psychological and cultural influences which may be the roots of judicial opinions. The obvious map to the minds of the justices—the opinions of the Court—is deceptive precisely because they are the opinions of the Court. They are symphonies, not solos. Inferences from opinions to the distinctive characteristics of individual justices are treacherous, except in so far as a man's genius breaks through a collective judgment, or his vivid life before he went on the bench serves as commentary, or as he expresses individual views in dissent or through personal writings. Not to speak of the present Court, Mr. Justice Holmes possessed these qualities of personal genius perhaps in richer measure than any member in the Court's history.

The Chief Justice of Massachusetts became Mr. Justice Holmes of the Supreme Court on December 4, 1902, and resigned on January 12, 1932. He was thus a member of the Court for more than a fifth of its entire active history, and participated in more than a third of its adjudications. More important than these items of duration or volume is the historic significance of the period. Long-maturing social forces which the Civil War released or intensified found powerful political expression just about the time that Mr. Justice Holmes went to Washington. Time did not abate these conflicts. And so it came about that the Court, during his whole thirty years, was sucked into political controversies more continuous and of more immediate popular concern than at any time in its history.

To the discerning, the burst of capitalistic activity following the victory of the North early revealed that reconciliation of unfettered individual enterprise with social well-being would be the chief issue of politics. A letter by Mr. Justice Miller, written in 1878, which has recently come to light, is a straw showing the way the wind was blowing. Miller, an appointee of Lincoln and probably the most powerful member of his Court, kept a close watch on events in Washington as well as from the vantage point of the agricultural Middle West, where he travelled much on circuit:

I have met with but few things of a character affecting the public good of the whole country that has shaken my faith in human nature as much as the united vigorous, and selfish effort of the capitalists,—the class of men who as a distinct class are but recently known in this country—I mean those who live solely by interest and dividends. Prior to the late war they were not numerous. They had no interest separate from the balance of the community, because they could lend their money safely and at high rates of interest. But one of the effects of the war was greatly to reduce the rate of interest by reason of the great increase in the quantity of the circulating medium. Another was by the creation of a national funded debt, exempt from taxation, to provide a means for the investment of surplus capital. This resource for investment was quadrupled by the bonds issued by the States, by municipal corporations, and by Rail Road companies. The result has been the gradual formation of [a] new kind of wealth in this country, the income of which is the coupons of interest and stock dividends, and of a class whose only interest or stake in the country is the ownership of these bonds and stocks. They engage in no commerce, no trade, no manufacture, no agriculture. They produce nothing.1

Mr. Justice Miller was here describing early manifestations of the impact of technological science upon society. Finance capital was in its early stages. Its evolution since Mr. Justice Miller wrote has been analyzed in Veblen's writings and in Brandeis' Other People's Money; the pungent details are recorded in the massive volumes of the Pujo and the Pecora investigating committees. In brief, technological advances led to large-scale industry, large-scale industries flowered into mergers and monopolies, thereby producing in considerable measure a subordination of industry to finance. On the social side came the shift from a dominantly agricultural to an urbanized society. Big business stimulated modern trade unionism. Since modern politics is largely economics, these conflicting forces soon found political expression. After several abortive attempts, the various agrarian and progressive movements, in combination with organized labor and other less defined groups, three times won the presidency. For the "square deal" of Theodore Roosevelt, the "new freedom" of Woodrow Wilson, and the "new deal" of Franklin D. Roosevelt have a common genealogy. Disregarding for the moment detailed or minor differences, the three eras which these slogans summarize derived from efforts to reconcile modern economic forces with the demands of a popular democracy.

The result of the process of economic concentration in the half century since the Miller letter is luminously conveyed by some Treasury figures. I quote from Solicitor General Robert H. Jackson in his recent report on the Sherman Law:

In 1932, according to the statistics of the Bureau of Internal Revenue, 53 percent of all corporate owned assets in this country was held by 618 corporations, which constitutes only 0.2 of 1 percent of the number of corporations reporting. Five percent of the corporations owned 85 percent of all corporate owned wealth in 1932. More than 50 percent of all the net income enjoyed by corporations in 1932 went to 232 corporations, while of the country's manufacturing corporations 1.2 percent of the total number accounted for 63 percent of the aggregate net profits. In 1934 the only group of corporations to earn an aggregate net profit was the group whose assets exceeded $50,000,000. Thus, the process of concentration was continuing.

There was likewise a high degree of concentration in the ownership of these corporations. 1929 was a banner year for stock ownership and in that year the 3.28 percent of the population who filed individual income tax returns accounted for the receipt of more than 83 percent of all dividends paid to individuals. And 78 percent of those dividends reported were received by 0.3 of 1 percent of our population.

The effect of this centralization is reflected in the distribution of national income. In 1933 the Bureau of Internal Revenue statistics show that there were only 1,747,740 taxable individual incomes in the United States and nearly one-third of all the property reported as passing by death was found in less than 4 percent of the estates. Brookings Institution's studies of 1929 show that about 6,000,000 families, or 21 percent of all families, had family incomes of less than $1,000 annually, and that 36,000 families in the high income brackets received as much of our national income in that year as 11,000,000 families with the lowest income.2

Instead of using dry figures Mr. Bernard Baruch, who is uniquely equipped to describe it, has portrayed the present economic scene by a few swift strokes:

"In the industrial east, at least, individual initiative had begun to merge into corporate collectivism" around the end of the 19th century, attaining its fullest effect in the decade following the world war. It has long since replaced "the older capitalism" as the dominant force in our economic life.

Naturally, there is only one means of controlling this collectivist growth in corporate enterprise. Government regulation must be extended to a direct proportionate degree. This is a sine qua non which business must accept.3

Short of the immediate issues of today, Mr. Justice Holmes' period of service on the Court covered the years of most intense interaction between government and business. Barring the tariff and the National Bank Act there were only two important measures of economic legislation on the federal statute books when Mr. Justice Holmes came to the Court, and these two, the Interstate Commerce Act of 1887 and the Sherman Law of 1890, had only somnolent vitality. Nor had state legislation, after the flurry of the Granger days, proved itself an effective device for social control over economic circumstance. Theodore Roosevelt's presidency marked the change. Under him the federal government for the first time embarked upon a positive program of social welfare. Through use of the taxing power and by regulatory legislation, not only were abuses to be remedied but benefits to be achieved for the common man. A vast field of hitherto free enterprise was brought under governmental supervision. Regardless of the political complexion of successive administrations, the area of national oversight of business was extended. From 1903 to 1932, an invigorated Interstate Commerce Commission, the Federal Trade Commission, the Federal Reserve Board, the Farm Loan Board, the Tariff Commission, the Federal Power Commission, the Railroad Labor Board followed each other in quick succession.

This vigorous legislative movement was partly a reflex of energetic state action and partly stimulated states to action. Wisconsin, under the elder La Follette, and New York, under Charles E. Hughes, took the lead in effective state regulation of utilities. In the decade between 1910 and 1920 all but half a dozen states enacted workmen's compensation laws. Local anti-trust laws, shorter hours acts, minimum wage laws, blue-sky laws, banking laws, conservation enactments, illustrate only some of the topics on which laws came from the forty-eight states for eventual judgment by Mr. Justice Holmes' Court.

In this response of legislation to the new world created by modern industry, the United States was merely repeating British experience. The American story of agitation, investigation, and legislation is registered in the wellknown British blue books, containing reports of royal commissions on modern economic and industrial problems, as they have manifested themselves in Great Britain and throughout the British Dominions. This struggle between the individualistic habits of the early nineteenth century and legislation as a means of effectuating the common interest is familiar to every reader of Dicey's brilliant Law and Opinion in England.

Such were the problems, however embedded in legal forms and phrased in legal jargon, that came to Mr. Justice Holmes for adjudication.

What equipment did he bring to the Court for dealing with these problems? What qualities did President Theodore Roosevelt look for, in appointing a Supreme Court justice at this time? Most things are kept from us that touch the intimate history of the Court, and so we are seldom allowed to share the private thoughts of a president on the considerations which moved him in making a Supreme Court appointment. Thanks to Senator Lodge, the elder, to whom President Roosevelt unburdened his mind, we do know both the hopes and the doubts that he felt about Mr. Justice Holmes' qualifications for the Supreme Bench, at that particular time:

First of all, I wish to go over the reasons why I am in his favor. . . . The labor decisions which have been criticized by some of the big railroad men and other members of large corporations, constitute to my mind a strong point in Judge Holmes' favor. The ablest lawyers and the greatest judges are men whose past has naturally brought them into close relationship with the wealthiest and most powerful clients, and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients. I think it eminently desirable that our Supreme Court should show in unmistakable fashion their entire sympathy with all proper effort to secure the most favorable possible consideration for the men who most need that consideration.

Now a word as to the other side. . . . In the ordinary and low sense which we attach to the words "partisan" and "politician," a judge of the Supreme Court should be neither. But in the higher sense, in the proper sense, he is not in my judgment fitted for the position unless he is a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on; and keeping in mind also his relations with his fellow statesmen who in other branches of the government are striving in cooperation with him to advance the ends of government. . . .

. . . The majority of the present Court who have, although without satisfactory unanimity, upheld the policies of President McKinley and the Republican party in Congress, have rendered a great service to mankind and to this nation. The minority—a minority so large as to lack but one vote of being a majority—have stood for such reactionary folly as would have hampered well-nigh hopelessly this people in doing efficient and honorable work for the national welfare. . . .

Now I should like to know that Judge Holmes was in entire sympathy with our views, that is with your views and mine . . . before I would feel justified in appointing him. Judge Gray has been one of the most valuable members of the Court. I should hold myself as guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.4

In taking account of the general philosophy of a prospective member of the Supreme Court towards major public issues likely to come before it, Theodore Roosevelt was merely following the example of other presidents, notably Lincoln in appointing Chase as Chief Justice. The psychological assumptions made by Theodore Roosevelt and Lincoln that the past in which a man is inured may have a powerful effect upon his future decisions are supported by weighty judicial experience. In the intimacy of family correspondence, Mr. Justice Miller has given us a glimpse of the personal influences which shape impersonal legal opinions:

It is vain to contend with judges who have been at the bar the advocates for forty years of rail road companies, and all the forms of associated capital, when they are called upon to decide cases where such interests are in contest. All their training, all their feelings are from the start in favor of those who need no such influence.5

We have been educated to an awareness of the enormous rôle which the unconscious plays in ordinary life, and the best of judges are beginning to realize, as Mr. Justice Holmes did long ago, how profoundly important it is that a judge be on his guard lest he read "his conscious or unconscious sympathy with one side or the other prematurely into the law." When judges decide issues that touch the nerve center of economic and social conflict, the danger, in de Tocqueville's phrase, of confounding the familiar with the necessary is especially hazardous. The matter was put with candor by Lord Justice Scrutton, a great English judge:

The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate a judgment as you would wish. This is one of the great difficulties at present with Labour. Labour says: "Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?" It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.6

Unlike the great men on the Court before him, Mr. Justice Holmes had been singularly outside the current of public affairs or of interest in them. He was essentially the philosopher who turned to law. Ultimate issues of the destiny of man, not the evanescent events of the day, preoccupied his mind. That he did not read newspapers revealed neither affectation nor a sense of superiority; it mirrored his worldly innocence. When Senator Lodge tried to induce him to run for governor, with the bait that it would inevitably lead to a seat in the United States Senate, Mr. Justice Holmes blandly replied: "But I don't give a damn about being Senator." And yet, though he did not bring to the Court the experience of great affairs, not even Marshall exceeded him in judicial statesmanship. Other great judges have been guided by the wisdom distilled from an active life; Mr. Justice Holmes was led by the divination of the philosopher and the imagination of the poet.

Because he had an organic philosophy, he was not distracted by the infinite diversity of detail in the appearance of the same central issues. No one realized better than he that, while principles gain significance through application, concrete instances are inert except when galvanized into life by a general principle. And so it is perhaps more true of him than of any other judge in the history of the Court that the host of public controversies in which he participated was subdued to reason by relatively few guiding considerations. This was true whether he was called upon to strike a balance between the claims of property and its obligations, or between the rights of individuals and their duties, or between the limits of state action and the authority of the federal government.

Indeed, underlying all the myriad forms of these great problems is an antecedent issue. What is the rôle of a judge in making these adjustments between society and the individual, between the states and the nation? The conception which a judge has of his own function, and the fastidiousness with which he follows it, will in large measure determine the most delicate controversies before him. Justices of the Court are not architects of policy. They can nullify the policy of others; they are incapable of fashioning their own solutions for social problems. The use which a judge makes of this power of negation is largely determined by two psychological considerations. It depends first on the judge's philosophy, conscious or implicit, regarding the nature of society; that is, on his theory of the clash of interests. This, in turn, will influence his conception of the place of the judge in the American constitutional system.

Mr. Justice Holmes' view of the play of forces in society hardly differed from that of Madison in his classic statement in the Federalist:

Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.7

Thirty years before he went on the Supreme Court, Mr. Justice Holmes expressed this view in his own way:

This tacit assumption of the solidarity of the interests of society is very common, but seems to us to be false . . . in the last resort a man rightly prefers his own interest to that of his neighbors. And this is as true in legislation as in any other form of corporate action. All that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the de facto supreme power in the community, and that the spread of an educated sympathy should reduce the sacrifice of minorities to a minimum. . . . The objection to class legislation is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them because a competing class has gained in power, or that it transcends the limits of self-preference which are imposed by sympathy. . . . But it is no sufficient condemnation of legislation that it favors one class at the expense of another; for much or all legislation does that; and none the less when the bona fide object is the greatest good of the greatest number . . . if the welfare of all future ages is to be considered, legislation may as well be abandoned for the present. . . . The fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.8

Mr. Justice Holmes never forgot that the activities of government are continual attempts by peaceful means to adjust these clashes of interest, and he was equally mindful of the fact that the body to whom this task of adjustment is primarily delegated is the legislature. And so he gave complete loyalty in his work as a judge to the major premise of Marshall "that it is a Constitution we are expounding."9 He scrupulously treated the Constitution as a broad charter of powers for the internal clashes of society, and did not construe it as though it were a code which prescribed in detail answers for the social problems of all time.

Thus, the enduring contribution of Mr. Justice Holmes to American history is his constitutional philosophy. He gave it momentum by the magic with which he expressed it. Great judges are apt to be identified with what lawyers call great cases. The achievements of his great predecessors have, on the whole, to be recounted through an analysis of specific decisions, their meaning and their consequences. Mr. Justice Holmes' specialty was great utterance. He dealt with intrinsic significance, not with meretricious, because evanescent, importance. "Great cases," he himself has said, "are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate, overwhelming interest which appeals to the feelings and distorts the judgment." He saw the vital in the undramatic; to him, inconspicuous controversies revealed the clash of great social forces. And so the significance of his genius would evaporate in any analysis of specific decisions. In his case, form and substance were beautifully fused. His conception of the Constitution must become part of the political habits of the country, if our constitutional system is to endure; and if we care for our literary treasures, the expression of his views must become part of our national culture.

The Constitution is, of course, a legal document, but a legal document of a fundamentally different order than an insurance policy or a lease of timberland. For the Justice, the Constitution was not primarily a text for dialectic but a means of ordering the life of a progressive people. While its roots were in the past, it was projected for the unknown future:

. . . the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.10

. . . when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.11

While the Supreme Court is thus in the exacting realm of government, it is itself freed from the terrible burdens of governing. The Court is the brake on other men's actions, the judge of other men's decisions. Responsibility for action rests with legislators. The range of the Court's authority is thus very limited, but its exercise may vitally affect the nation. No wonder John Marshall spoke of this power of the Court as "delicate."12

No man who ever sat on the Court has been more keenly or more consistently sensitive than Mr. Justice Holmes to the dangers and difficulties inherent in the power of judges to review legislation. For it is subtle business to decide, not whether legislation is wise, but whether legislators were reasonable in believing it to be wise. In view of the complexities of modern society and the restricted scope of any man's experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and expressed in memorable language:

It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong. . . . When twenty years ago a vague terror went over the earth and the word socialism began to be heard, I thought and still think that fear was translated into doctrines that had no proper place in the Constitution or the common law.13

While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.14

If these had been merely the views of a closet philosopher they would not have aroused dissent, nor would they have been seriously noticed. But when they were made the effective instruments of adjudication they became fighting issues. By cutting beneath the surface of decisions Mr. Justice Holmes exposed their psychological and sociological roots. While in the eighties and nineties our economy was in process of drastic transformation, members of the Supreme Court continued to reflect the economic order in which they grew up. Between the presidencies of Grant and the first Roosevelt, laissez faire was the dominant economic social philosophy, and it was imported into the Constitution. Temporary facts were translated into legal absolutes; abstract conceptions concerning "liberty of contract" were erected into constitutional dogmas. Malleable and undefined provisions of the Constitution were applied as barriers against piece-meal efforts of adjustment through legislation to a society permeated by the influence of technology, large-scale industry, progressive urbanization, and the general dependence of the individual on economic forces beyond his control. The due process clauses were especially the destructive rocks on which this legislation foundered. Judge Learned Hand, one of the most eminent of our judges, has said that the requirement of due process is merely an embodiment of the English sporting idea of fair play. In England, particularly from the time of the Campbell-Bannerman government, the same causes that induced American legislative attempts led to a continual Parliamentary modification of the system of private enterprise. The scope of this trend in England is revealed by a few tell-tale figures. The social services established by this legislation have entailed an increase in expenditure from 19s. 2d. per capita in 1900 to £8 16s. 6d. in 1934; and about a third of the national income of Great Britain is now spent through public channels.15

Yet as late as 1905 the Supreme Court held it unconstitutional to limit the working hours of bakers to ten,16 and as recently as 1936 the Court adhered to its ruling that it was beyond the power both of the states and of the nation to assure minimum wage rates for women workers obviously incapable of economic self-protection.17 Every variety of legislative manifestation to subject economic power to social responsibility encountered the judicial veto.

The doctrinal process by which the majority reached such results was thus explained by Mr. Justice Holmes in dissenting from his brethren in the Minimum Wage case:

. . . The only objection that can be urged [against a minimum wage law for women for the District of Columbia] is found within the vague contours of the Fifth Amendment, prohibiting the depriving any person of liberty or property without due process of law. To that I turn.

The earlier decisions upon the same words in the Fourteenth Amendment began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the world liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.18

The practical meaning of this operation of judicial review was put by the late Judge Hough with characteristic pungency: "No man has seen more plainly that the court was measuring the legislature's reasons by its own intellectual yardstick than has Justice Holmes; none more keenly perceived that the notations thereupon marked those results of environment and education which many men seem to regard as the will of God or the decrees of fate."19 Against this subtle danger of the unconscious identification of personal views with constitutional sanction Mr. Justice Holmes battled during all his years on the Court. For a short time after the bake-shop case his views were in the ascendant. Chief Justice White was heard to attribute to the influence exerted by President Theodore Roosevelt no inconsiderable share in the shift of the Court's emphasis. The fact is that for less than a decade, between 1908 and the World War, the Court did allow legislation to prevail which, in various aspects, regulated enterprise with reference to its social consequences and withdrew phases of industrial relations from the area of illusory individual bargaining.20

But those who had assumed a permanent change in the Court's outlook were soon disappointed. Changes in the Court's personnel and in the general economic and social climate of the Harding-Coolidge era soon reflected themselves in decisions. Until after the 1936 election, the Court was back to the high tide of judicial negation reached in the Lochner case, in 1905. Mr. Justice Holmes' classic dissent in that case will never lose its relevance:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.21

This was the great theme of his judicial life—the amplitude of the Constitution as against the narrowness of some of its interpreters. And so, having analyzed with brave clarity the governing elements in the modern economic struggle, he did not shrink from giving his analysis judicial recognition. "One of the eternal conflicts out of which life is made up," he wrote, more than forty years ago, "is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way."22 Mr. Justice Holmes therefore found nothing in the Constitution to prevent legislation which sought to remove some of the more obvious inequalities in the distribution of economic power.

Economists and historians are now largely agreed that the resistance to a natural and responsible trade unionism has been one of the most disturbing factors in our economy. Had the views of Mr. Justice Holmes prevailed, the Constitution would not have been used as an obstruction to the healthy development of trade unionism. More than thirty years ago he protested when a majority of the Court invalidated an act of Congress against the "yellow dog" contract which, as a matter of history, was drawn by Richard Olney and sponsored by President Cleveland. The need for legislation to remove disabilities against the effective right of association by workers became more manifest with time. State after state, therefore, passed laws to assure trade unions the opportunity which they already had in the rest of the English-speaking world. But a majority of the Court remained obdurate and imposed a doctrinaire view of the Constitution against such legislation.23 One can only surmise what would have been the gain to social peace and economic security had the dissenting views expressed more than twenty years ago by Mr. Justice Holmes been the Court's views:

In present conditions a workman not unnaturally may believe that only by belonging to a union can he secure a contract that shall be fair to him. . . . If that belief, whether right or wrong, may be held by a reasonable man, it seems to me that it may be enforced by law in order to establish the equality of position between the parties in which liberty of contract begins. Whether in the long run it is wise for the workingmen to enact legislation of this sort is not my concern, but I am strongly of opinion that there is nothing in the Constitution of the United States to prevent it. . . .24

Law, he was well aware, not merely confirms property interests; it helps to create them. The availability of legal remedies may itself be a potent instrument of economic power. Correspondingly, the withholding of such remedies may affect the balance of conflicting interest in the economic struggle. Mr. Justice Holmes denied that the Constitution stereotyped any particular distribution of economic power for all time. With the clean precision of a surgeon he uncovered the process by which, under the guise of deductive reasoning, partial claims were given the shelter of the Constitution as comprehensive interests of property:

Delusive exactness is a source of fallacy throughout the law. By calling a business "property" you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct and like other conduct is subject to substantial modification according to time and circumstances both in itself and in regard to what shall justify doing it a harm.25

By a steady extension of doctrines which, to Mr. Justice Holmes, had no justification in the Constitution, a majority of the Court persistently denied exertions of the legislature toward reconciling individual enterprise and social welfare. Abstract conceptions regarding property and "liberty of contract" were the swords with which these measures were struck down. Mr. Justice Holmes was finally roused to an unusual judicial protest. His dissent from the decision of the majority in declaring unconstitutional a New York statute regulating theatre-ticket scalping fully reveals his mind. It also gives a glimpse of the importance he attached to art throughout life:

We fear to grant power and are unwilling to recognize it when it exists . . . when legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police power, or the statement that the business concerned has been dedicated to a public use. The former expression is convenient, to be sure, to conciliate the mind to something that needs explanation: the fact that the constitutional requirement of compensation when property is taken cannot be pressed to its grammatical extreme; that property rights may be taken for public purposes without pay if you do not take too much; that some play must be allowed to the joints if the machine is to work. But police power often is used in a wide sense to cover and, as I said, to apologize for the general power of the legislature to make a part of the community uncomfortable by a change.

I do not believe in such apologies. I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. Coming down to the case before us I think, as I intimated in Adkins v. Children's Hospital, 261 U. S. 525, 569, that the notion that a business is clothed with a public interest and has been devoted to a public use is little more than a fiction intended to beautify what is disagreeable to the sufferers. The truth seems to me to be that, subject to compensation when compensation is due, the legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it. Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that the business should end. Mugler v. Kansas, 123 U. S. 623. What has happened to lotteries and wine might happen to theatres in some moral storm of the future, not because theatres were devoted to a public use, but because people had come to think that way.

But if we are to yield to fashionable conventions, it seems to me that theatres are as much devoted to public use as anything well can be. We have not that respect for art that is one of the glories of France. But to many people the superfluous is the necessary, and it seems to me that Government does not go beyond its sphere in attempting to make life livable for them. I am far from saying that I think that this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution of the United States to prevent their having their will.26

Taxation is perhaps the severest testing ground for the objectivity and wisdom of a social thinker. The enormous increase in the cost of society and the extent to which wealth is now represented by intangibles, the profound change in the relation of the individual to government and the resulting widespread insistence on security, are subjecting public finance to the most exacting demands. To balance budgets, to pay for the costs of progressively civilized social standards, to safeguard the future and to divide these burdens fairly among different interests in the community, put the utmost strain on the ingenuity of statesmen. They must constantly explore new sources of revenue and find means of preventing the circumvention of their discoveries. Subject as they are, in Englishspeaking countries, to popular control, they should not be denied adequate latitude of power for their extraordinarily difficult tasks.

Mr. Justice Holmes never yielded to finicky limitations or doctrinaire formulas, drawn from the general language of the Constitution, as a means of circumscribing the discretion of legislatures in the necessarily empirical process of tapping new revenue or stopping new devices for its evasion. He did not have a curmudgeon's feelings about his own taxes. A secretary who exclaimed, "Don't you hate to pay taxes!" was rebuked with the hot response, "No, young feller. I like to pay taxes. With them I buy civilization." And as a judge he consistently refused to accentuate fiscal difficulties of government by injecting into the Constitution his own notions of fiscal policy. Nor did he believe that there was anything in the Constitution to bar even a conscious use of the taxing power for readjusting the social equilibrium. One of his last utterances gives the general flavor of his many opinions in tax cases:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. . . . It seems to me to be exceeding our powers to declare such a tax a denial of due process of law.

And what are the grounds? Simply, so far as I can see, that it is disagreeable to a bondholder to be taxed in two places. Very probably it might be good policy to restrict taxation to a single place, and perhaps the technical conceptions of domicil may be the best determinant. But it seems to me that if that result is to be reached it should be reached through understanding among the States, by uniform legislation or otherwise, not by evoking a constitutional prohibition from the void of "due process of law," when logic, tradition and authority have united to declare the right of the State to lay the now prohibited tax.27

I have indicated the general direction of Mr. Justice Holmes' judicial mind on the great issues of the constitutional position of property in our society. During most of his thirty years on the Supreme Bench, and especially during the second half of his tenure, his were not the views of a majority of the Court. But the good that men do lives after them. About a year ago the old views of Mr. Justice Holmes began to be the new constitutional direction of the Court.28 His own constitutional outlook was, throughout a long life, free from fluctuations. This was so because it was born of a deeply rooted and coherent philosophy concerning the dynamic character of the American Constitution and of a judge's function in construing it. If he threw the weight of his authority on the side of social readjustments through legislation it was not because of any faith in panaceas in general or in measures of social amelioration in particular. He personally "disbelieved all the popular conceptions of socialism," and came dangerously close to believing in the simplicities of the wage-fund theory.29 But his scepticism and even hostility, as a matter of private judgment, toward legislation which he was ready to sustain as a judge only serve to add cubits to his judicial stature. For he thereby transcended personal predilections and private notions of social policy, and became truly the impersonal voice of the Constitution.

NOTES

1 Charles Fairman, "Justice Samuel F. Miller—A Study of a Judicial Statesman," Political Science Quarterly, L (March 1935), 15, 21.

2Report of the Attorney General for the Fiscal Year 1937, p. 36.

3 Letter in Springfield Republican, Saturday, March 26, 1938, p. 6.

4Selections from the Correspondence of Theodore Roosevelt and Henry Cabot Lodge, I (New York, 1925), 517-19.

5 Fairman, in Political Science Quarterly, L, 43, n. 4.

6 Scrutton, "The Work of the Commercial Courts," Cambridge Law Journal, I (1921), 6, 8.

7The Federalist, No. 10 (sesquicentennial ed., Washington, 1937), p. 56.

8 Holmes, "The Gas-Stokers' Strike," American Law Review, VII (1873), 583, reprinted in Harvard Law Review, XLIV (March 1931), 795.

9 McCulloch v. Maryland, 4 Wheat. 316, 407 (U. S. 1819).

10 Gompers v. United States, 233 U. S. 604, 610 (1914).

11 Missouri v. Holland, 252 U.S. 416, 433 (1920).

12 Fletcher v. Peck, 6 Cranch 87, 128 (U. S. 1810).

13 Holmes, Collected Legal Papers (New York, 1920), p. 295.

14 Otis v. Parker, 187 U. S. 606, 608-09 (1903).

15 Frankfurter, "Foreword," Yale Law Journal, XLVII (1938), 515, 516.

16 Lochner v. New York, 198 U. S. 45 (1905).

17 Morehead v. New York ex rel. Tipaldo, 298 U. S. 587 (1936).

18 Adkins v. Children's Hospital, 261 U. S. 525, 568 (1923).

19 Hough, in Harvard Law Review, XXXII, 232, n. 2.

20E.g., Muller v. Oregon, 208 U. S. 412 (1908); Bunting v. Oregon, 243 U. S. 426 (1917).

21 198 U. S. 45, 75-76 (1905).

22 Vegelahn v. Guntner, 167 Mass. 92, 108 (1896).

23 Adair v. United States, 208 U. S. 161 (1908).

24 Coppage v. Kansas, 236 U. S. 1, 26-27 (1915).

25 Truax v. Corrigan, 257 U. S. 312, 342-43 (1921).

26 Tyson & Bro. v. Banton, 273 U. S. 418, 445-47 (1927).

27 Baldwin v. Missouri, 281 U. S. 586, 595-96 (1930).

28 West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937).

29 See Plant v. Woods, 176 Mass. 492, 505 (1900).

Daniel J. Boorstin (essay date 1941)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 3265

SOURCE: "The Elusiveness of Mr. Justice Holmes," in The New England Quarterly, Vol. XIV, No. 3, September, 1941, pp. 478-87.

[In the following essay, Boorstin examines Holmes's social philosophy outside of the constitutional issues he decided professionally.]

The thought and personality of Mr. Justice Holmes have suffered from affectionate neglect. In proportion to his stature he has received less adequate interpretation than any other American of his generation. He has become the victim of his acolytes, who, in heaping sacrifices at his altar, have obscured the image of their idol. A survey of the literature about the great Justice shows numerous collections of dedicatory essays, giving him deserved adulation and the homage which men can understandably feel compelled to give to such a rare spirit among lawyers. The principal biography is written in a similar vein. But these works have not greatly helped to reveal in the character of Mr. Justice Holmes the great significance which his life holds for the student of American thought. The best statement of his elusive philosophy is still made in his own words. And for this reason several recently published volumes are of especial interest. Mr. Harry C. Shriver has edited a selection of the judicial opinions of the Justice during the nineteen years while he sat on the bench of the Supreme Judicial Court of Massachusetts.1 He has done a service in making more generally available documents on a portion of Mr. Holmes's career little known to laymen. Although the lawyer may regret that his decisions on other than constitutional questions are not adequately represented,2 and may feel that the wisdom in the epigrams culled by Mr. Shriver is often obscured by the omission of the facts of cases in which the epigrams were stated,3 the volume is one which should interest the layman and help him form a fuller picture of the Justice's social views.

The crucial materials for formulating Justice Holmes's social philosophy, if they have not all been accessible to the layman, have for some time been in print in the law reports. But until now his personal philosophy has had to be drawn almost entirely from his speeches. Therefore the publication of the Holmes-Pollock Letters, comprising a correspondence of nearly sixty years with the eminent English legal scholar, Sir Frederick Pollock, is particularly welcome.4 The two volumes of this correspondence provide rich additional material for an attempt to define more precisely this aspect of Holmes's thinking, and the careful and restrained editing of Professor Mark DeWolfe Howe deserves the highest praise. Although the letters throughout maintain a characteristic dignified reserve, and although the readers of Holmes's judicial opinions, his Speeches, his Collected Legal Papers, and his previously published letters to William James5 are already familiar with many of his phrases and ideas, the continuity of the correspondence and the variety of the subjects here covered, as well as the occasional interplay with Sir Frederick Pollock, paint in many lines and shadows that have heretofore been lacking. The self-assurance and clarity of the speeches are often absent, but the reader is rewarded by the feeling that he is being allowed to share the process of the great Judge's thought as he is organizing and stating his doubts. Throughout the correspondence, Justice Holmes appears as a subtle, sensitive mind of catholic and cultivated interests. And if the letters occasionally seem bookish or self-conscious, if they sometimes seem to lack personal warmth, they are always intense and concerned with the kind of questions—indeed the whole gamut of questions—that must concern civilized men.

Dr. Johnson once said of Sir Isaac Newton that if he had lived among the Greeks he would have been worshipped as a god. Mr. Justice Holmes came as near apotheosis in his own day as perhaps any other American. And yet it is singularly difficult to imagine his thought and character transferred to another age. For the great Judge was no system-builder. His social philosophy—if one is to be articulated for him—must be pieced together as a mosaic of decisions on particular issues which he met during his years as Judge and Chief Justice of the Supreme Judicial Court of Massachusetts, and later as Associate Justice of the Supreme Court of the United States. The work of exegesis has not been wholly successful; it is not certain that he would have accepted any of the systems made for him by his disciples. The newly-published correspondence with Sir Frederick Pollock reveals more of the tantalizing elusiveness of Holmes's personal philosophy, and helps account for the fact that many of his disciples have simply given themselves up to a reverent homage. The inadequacy of labels like "liberal" and "conservative" quickly appears, and it becomes increasingly evident that here was a man so sensitive to contemporary thoughts and feelings, so eager to wreak himself upon life, and so responsive to the variety, color, and sound of life that he embodied many of the conflicting currents and attitudes of his day. In his earnestness to encompass all philosophies and yet to commit himself to none, his personal world of ideas was a world of doubt and conflict.

Mr. Justice Holmes, the product of a New England conservative tradition, clearly felt the tug of opposing forces. His family background drew him in the direction of respectability, elegance, and the genteel tradition. But the individuality of the Justice was intensely liberal; he was a man of extra-ordinary intelligence who was eager and happy to see a world of change. He was finally unable to reconcile these two aspects of his personality, although an apparent resolution took the form of a faith in conflict, in the process and struggle of life. Indeed, "conflict," physical and intellectual, is a leitmotif of the correspondence. On October 21, 1895, he opened his letter to Sir Frederick, "Thirty-four years ago today was my first battle. I was shot through the breast at Ball's Bluff & it always seems something of an anniversary to me.">6 That was written in the Judge's fifty-fifth year. Nearly a third of a century later, when he was over eighty, he still celebrated the anniversary, and headed a letter to Sir Frederick, "Beverly Farms, September 18, 1927 Antietam was 65 years ago yesterday."7 In his serious utterances he used most frequently the metaphors of battle. He liked to call himself "an old soldier." In his speech on his predecessor as Chief Justice of Massachusetts, Holmes concluded by saying, "With a kind of desperate joy we go back to the fight."8 The figure of battle which characterized the active life to him, also represented to him the world of ideas and of moral values. As early as 1895, he wrote to Pollock of the qualities necessary to make a lawyer a "fighting success."9 In a significant letter in the summer of 1925, again employing the metaphor of battle, he wrote:

I think the proper attitude is that we know nothing of cosmic values and bow our heads—seeing reason enough for doing all we can and not demanding the plan of campaign of the General—or even asking whether there is any general or any plan. It's enough for me that this universe can produce intelligence, ideals, etc.—et superest ager.10

By a paradox, this most reflective of recent American jurists seemed to admire the study of law not so much because it was philosophical as because it dealt with the world of conflicting interests—where the discords of the market place were given all the drama and dignity which men's everyday disagreements can be given in human society. In 1870, only a half-dozen years after he had taken up legal study, he wrote, "It is the merit of the common law that it decides the case first and determines the principle afterwards."11 The personal philosophy that led him to find this charm in the common law was expressed many years later, in 1897, in a public tribute to a fellow judge:

But I know of no true measure of men except the total of human energy which they embody—counting everything, with due allowance for quality, from Nansen's power to digest blubber or to resist cold, up to his courage, or to Wordsworth's power to express the unutterable, or to Kant's speculative reach. The final test of this energy is battle in some form—actual war—the crush of Arctic ice—the fight for mastery in the market or the court. . . . It is one thing to utter a happy phrase from a protected cloister; another to think under fire—to think for action upon which great interests depend.12

Like the true soldier, Holmes sometimes seemed more interested in the process and strategy of the fight than in the cause for which the fighting was being done. The conflicts of interests in society were essential to the drama of life. The judge was a sort of deus ex machina, interested not so much in removing conflict as in resolving it. He found Brooks Adams's philosophy of history exciting and was much concerned with his theory of the place of conflict in history,13 although he naturally did not find the pessimism of the man congenial.14 Despite this interest in the fight and his desire to preserve the equal opportunities of the fight for all men in society, Holmes distrusted "fighting faiths,"15 and particularly the faiths of reformers—men with whose social philosophy his has been often identified. They represented the "upward and onward,"16 men who must have seemed to the Justice more concerned with the cause than with the struggle.

Holmes's curiosity about the new philosophies entering on the battlefield of ideas and his interest in the drama of intellectual history only confirmed him in his distrust of systems of thought. Since "time has upset many fighting faiths," and "the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that . . . is the only ground upon which [men's] wishes safely can be carried out,"17 the validity of systems would naturally be affected by the conditions of the market. He wrote from Washington in 1905, "am just turning to Santayana's last two volumes of The Life of Reason which I like better than any philosophy I have read—or nearly so. . . . But more and more I am inclined to belittle the doings of the philosophers while I think philosophy the end of life."18 The philosophy which Justice Holmes asserted again and again was one which he thought freed him from the bonds of any particular system, and which may have seemed to him actually to evade some of the central problems of philosophy. This was his philosophy of "can't helps." As he wrote in the summer of 1906:

I always start my cosmic salad by saying that all I mean by truth is what I can't help thinking and that I have no means of deciding whether my can't helps have any cosmic worth. They clearly don't in many cases. I think the philosophers usually are too arrogant in their attitude. I accept the existence of a universe, in some unpredicable sense, just as I accept yours—by an act of faith—or by another can't help, perhaps.19

Over twenty years later, in 1929, he was writing in the same vein, insisting that "the I can't help is the ultimate. If we are sensible men and not crazy on-ists of any sort, we recognize that if we are in a minority of one we are likely to get locked up and then find a test or qualifications by reference to some kind of majority vote actual or imagined."20 Close as this attitude may seem to the doctrines of pragmatism, Mr. Justice Holmes would not call himself a pragmatist, perhaps partly because of the temperamental incompatibility which he came to feel with William James, and partly because he preferred the individualism of his personal philosophy.21

More and more it appears that Mr. Justice Holmes's belief in conflict and in free competition among ideas was connected somehow with the conflicts in his own life and with his difficulty in deciding what he really believed. In May of 1919 he wrote:

Brandeis the other day drove a harpoon into my midriff with reference to my summer occupations. He said you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don't you try something new, study some domain of fact. Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a notion of how it really is. I hate facts. I always say the chief end of man is to form general propositions—adding that no general proposition is worth a damn. Of course a general proposition is simply a string for the facts and I have little doubt that it would be good for my immortal soul to plunge into them, good also for the performance of my duties, but I shrink from the bore—or rather I hate to give up the chance to read this and that, that a gentleman should have read before he dies. I don't remember that I ever read Machiavelli's Prince—and I think of the Day of Judgment. There are a good many worse ignorances than that that ought to be closed up. I don't know how it will come out. The spring here is enchanting.22

Although he had written as early as 1886, "All that life offers any man from which to start his thinking or his striving is a fact,"23 although his legal philosophy continually lends itself to characterization as Legal Pragmatism, Mr. Justice Holmes in his personal philosophy was often inclined to take refuge in a kind of mysticism. The theme of the "unknowable" runs through his letters as it runs through his speeches. However important the pragmatic attitude in his way of thinking, there was also a large transcendental element. Commenting on James's Pragmatism, he significantly remarked, "And I now see, as I have seen in his other books that I have read, that the aim and end of the whole business is religious. . . . taking that as the significance of the whole business I make it my bow."24 He himself made the link between mysticism and his own "can't help" philosophy when he wrote in 1918, "It is true that beliefs and wishes have a transcendental basis in the sense that their foundation is arbitrary. You can not help entertaining and feeling them, and there is an end of it."25 In the same year he was writing to Pollock, "I am a mystic in the sense of believing myself to be an intelligible moment of the unintelligible, but not at all in that of supposing that by purging myself of all activities that the Cosmos has implanted I can get nearer to the central power and have a private conversation with God."26

The more one reads in this lively correspondence, the more Mr. Justice Holmes appears as the inquiring, restless, liberal mind, full of conflict and doubt—more interested in the multifariousness than in the moral of life. There is at once a note of optimism and of detachment. The reader cannot help perceiving the tension and inner conflict of a man who saw and understood much of the world, who was philosophical by nature and conservative by environment, but who dared not formulate a philosophy, and could not accept one ready-made. It is singularly difficult to trace development in Mr. Justice Holmes's thought; the uncertainty, the doubt, and the enquiry continued for the whole of the fifty-eight years of the correspondence. Without elaborating the connection with his social philosophy, it is obvious that between Holmes's own uncertainties and faith in the conflict in life and his eagerness to preserve for other people in society the opportunity of a fair fight, whether on the economic or on the intellectual level, there must have been some relation. The figure of Mr. Justice Holmes emerges as the prototype, on the highest intellectual level, of intelligent, self-conscious individualism in the expanding America of the late nineteenth and the early twentieth centuries. Individualism, in the dynamic form in which Mr. Justice Holmes prescribed it for the state, made him friends among socialists and radicals. But individualism as a personal philosophy, although when combined with the tradition of the culture of gentlemen it could make the warm intellectual relations of his friendship with Sir Frederick Pollock, still left him alone and in doubt, torn between pragmatism and mysticism, and finally reposing his faith in the struggle of life. "For high and dangerous action teaches us to believe as right beyond dispute things for which our doubting minds are slow to find words of proof. Out of heroism grows faith in the worth of heroism. The proof comes later, and even may never come."27

NOTES

1The Judicial Opinions of Oliver Wendell Holmes: Constitutional Opinions, Selected Excerpts and Epigrams, as Given in the Supreme Judicial Court of Massachusetts (1883-1902), Harry C. Shriver, editor (Buffalo, New York, 1940).

2 Cases of interest which might have been included are those on instructions to juries (Loftus v. Inhabitants of North Adams, 160 Mass. 161) and on admissibility of evidence (Commonwealth v. Hannah Welch, 163 Mass. 372), interesting for its analogy to later wire-tapping cases.

3E.g., the epigrams from Hamilton v. West End Street Railway Company (309) and from Stack v. New York, New Haven, and Hartford Railroad (316 f.).

4Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874-1932, 2 volumes, edited by Mark DeWolfe Howe (Cambridge, 1941).

5 R. B. Perry, Thought and Character of William James (Boston, 1935), I, 504 ff., and II, 458 ff.

6Holmes-Pollock Letters (hereinafter referred to by volume and page numbers only), I, 64.

7 II, 205.

8 Silas Bent, Justice Oliver Wendell Holmes (New York, 1932), 224. Some other uses of the figure of battle in speeches occur on pages 137 f., 218, and 353. Of Bertrand Russell, Mr. Justice Holmes wrote to his correspondent on May 2, 1925, "But I think he is something of a sentimentalist, and does not talk well of war." II, 158.

9 I, 65.

10 II, 163.

11 Bent, 346, quoting from an unsigned editorial in the American Law Review, I, 5. Cf., for example, the dicta against "general reasoning" and "too broadly generalized conceptions." Shriver, 285 and 289.

12 Bent, 137 f.

13 I, 64 f., 76 f., 124, and 187.

14 I, 73.

15Cf. The Dissenting Opinions of Mr. Justice Holmes, Alfred Lief, editor, (New York, 1929), 50.

16 I, 201. Cf. the remark of Mr. Holmes to his secretary, about 1916: "I'm afraid Brandeis has the crusading spirit. He talks like one of those upward-and-onward fellows." Bent, 281.

17The Dissenting Opinions of Mr. Justice Holmes, 50, quoted from Abrams et al v. United States, 250 U.S., 616, at 630.

18 I, 122.

19 I, 126. Cf. the strikingly similar statements at I, 139, and II, 251 f.

20 II, 255 f. Cf. Santayana's remark that James believed philosophy to have a Polish Constitution, Character and Opinion in the United States (New York, 1920), 82.

21 "I think pragmatism an amusing humbug—like most of William James's speculations, as distinguished from his admirable and well written Irish perceptions of life." I, 138 f. Cf. I, 140, and R. B. Perry, Thought and Character of William James (Boston, 1935), II, 458 ff.

22 II, 13 f. In 1897, Mr. Holmes had written, "For the rational study of law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." Collected Legal Papers, collected by Harold J. Laski (New York, 1920), 187.

23Collected Legal Papers, 30. Examples of his pragmatic attitude to the law may be found in the Holmes-Pollock Letters, e. g., definition of "a right," II, 212; and "The Path of the Law," in Collected Legal Papers, 167 ff.

24 I, 140.

25Collected Legal Papers, 312.

26 I, 274. Cf. II, 207 f.

27 Quoted in Bent, 123.

John A. Garraty (essay date 1949)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 4379

SOURCE: "Holmes's Appointment to the U. S. Supreme Court," in The New England Quarterly, Vol. XXII, No. 3, September, 1949, pp. 291-303.

[In the following essay, Garraty traces the personal and political considerations of Holmes's appointment to the Supreme Court.]

Early in July, 1902, Associate Justice Horace Gray, troubled by failing health, responded to the urgings of his family and his physician and wrote a letter to President Theodore Roosevelt. Further service might seriously endanger his health, he told the President, and therefore he must resign immediately or upon the appointment of his successor, whichever the President wished.1

His replacement, of course, was a matter for the determination of the Chief Executive subject to the approval of the Senate, but custom imposed certain limitations on the field of choice. In the first place, Judge Gray was a Massachusetts man. His successor, therefore, almost certainly would come from New England, probably from the Bay State itself. In 1902 the Supreme Court was one hundred and thirteen years old; for eighty-two of these years its Bench had been graced by a Massachusetts citizen. The rest of New England might not think so highly of this record. "There are judges in these outlying districts," the Hartford Courant pointed out, "quite as eminent for learning and well-dowered with all the judicial virtues as the Massachusetts judges." Yet the facts had to be faced. The new judge might come from anywhere in the United States, but it was extremely unlikely that he would be found more than fifty miles from Boston.2

A second factor also limited the selection. The Massachusetts senators would have to be consulted and their approval obtained, for "senatorial courtesy" would prevent the confirmation of any man not supported by them. Horace Gray's replacement must be satisfactory to two key figures—George Frisbie Hoar and Henry Cabot Lodge. The venerable Senator Hoar's career in the Upper House ran back uninterrupted to 1877, and if he no longer ranked as a leader in the Republican party, he was still a man of great prestige who could not be ignored. Lodge, though a relative newcomer in the Senate, held a position there second to none by virtue of his relation to Roosevelt, whose best friend and close political adviser he was. So, while the President would make the final choice, it would not be an unrestricted one.

In the early months of 1902, as it became clear that Gray would probably quit his post, interested parties began to speculate. Late in February, textile manufacturer Eben S. Draper suggested in a letter to Senator Lodge that a good candidate for the vacancy, if and when it occurred, would be United States Circuit Court Judge Francis Cabot Lowell. Lowell was a member of an old and eminent family, and had much to recommend him. Trained in the law, he had also served in the lower house of the Massachusetts legislature and on the Boston Common Council, and had achieved some recognition as historian and man of letters.3 But Lodge had another candidate, equally distinguished. "There are others as you know with very strong claims," he wrote Draper on March third, and went on to indicate that his own favorite was the Chief Justice of the Massachusetts Supreme Court—Oliver Wendell Holmes, Jr.4

By any superficial standard Holmes would seem a choice that a man like Draper could have accepted with pleasure. In background and training he was very similar to the manufacturer's own Boston-born and Harvard-trained candidate. Yet Draper's reaction was almost violent. Holmes's appointment would be a grave mistake, he informed Lodge, and hastened to assure him that his own lay opinion could be amply buttressed by consultation with the Massachusetts legal fraternity. "While it would naturally be difficult to get lawyers to express this opinion under all the circumstances," Draper wrote, "they think that [Holmes] is erratic, and that he is not a safe man for such an important position."5 Draper did not explain this attitude, but no explanation was necessary. Holmes was "erratic" and not "safe" because of certain opinions he had offered from the bench of the Massachusetts Court—opinions highly disturbing to a conservative cotton manufacturer and to many equally conservative lawyers. For instance, he had taken the "erratic" position that peaceful picketing by striking workers should not be terminated by an injunction in the case of Vegelahn v. Guntner, in 1896. In Plant v. Woods, Holmes had even ventured to opine that within certain limits a secondary boycott by a labor union was legal. A judge who had said, "I think that unity of organization is necessary to make the contest of labor effectual," was not, to men like Draper, a person properly to be entrusted with the interpretation of the Constitution of the United States.6 Lowell held no such heretical views, but if he would not do there were others. When, in mid-May, a report from "wellinformed professional circles" appeared in the papers that the ailing Gray might be replaced by Senator Hoar's nephew, corporation counsel Samuel Hoar, Draper was quick to switch his allegiance. "I feel perfectly certain that the appointment of Mr. Hoar would give a great deal better satisfaction to all the business interests of the state than would the appointment of Judge Holmes," he wrote Lodge.7

But Lodge himself was not upset by Holmes's radical views on the rights of organized labor; he and his friend in the White House rated another matter as far more important. The Supreme Court was badly split over what he called the "Porto Rican cases"—the Insular cases dealing with the constitutional relations of the United States and its newly-acquired overseas possessions. In Downes v. Bidwell, for example, the Court had divided five to four in upholding what one of the dissenting Justices called the right of Congress to keep a territory "like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period."8 To imperialists like Roosevelt and Lodge, this state of things was desirable, and they were very much afraid of any change of opinion in the precariously balanced Court. In the Downes v. Bidwell decision there had been two different majority opinions and two dissenting ones—clearly there was no certainty that future cases would not alter the balance. Justice Gray had been one of those who had made up the all too uncertain majority. Therefore his successor must have similar views on such matters. Holmes, Lodge thought, filled the bill, and this to a great extent accounts for his support of the Chief Justice of his state. "I am absolutely for Holmes unless he should be adverse on Porto Rican cases, which I am informed he is not," the Senator wrote Roosevelt.9

When Lodge reached his home at Nahant after the adjournment of Congress in June, he called on Justice Gray and talked with him at length about his successor. Gray, Lodge later informed Roosevelt, agreed that Holmes was a suitable man for the job. Roosevelt had in previous conversations indicated approval, but he had not definitely committed himself, so Lodge (knowing that Gray's resignation would be forthcoming very soon) now put Holmes's case before the President forcefully. Besides his brilliance and profound learning, as the Chief Justice of Massachusetts, he was the logical choice, the Senator urged. "It would be hard to pass him by—hard on him." While it was true that men like Samuel Hoar and certain other lawyers disliked him because of "his one or two labor decisions," many others felt differently. "I have been talking quietly with lawyers here," Lodge went on, "& there is no doubt that the great body of the bar would strongly approve. Our ex-Att'y Gen'l Knowlton a very strong man is an example of these." Just how widely Lodge had carried his investigations of legal opinion in Massachusetts is not apparent, but the example he chose was not a fair one. Knowlton had a special interest in Holmes's promotion, for Governor Crane had promised him the Chief Justiceship if Holmes were moved up before his own term expired. "Knowlton . . . was most anxious for my appointment and showed it with a naïveté that made me smile," Holmes himself wrote years later. "He knew that the outgoing governor would appoint him to my place and wanted to fasten it before the new governor came in." But, of course, Lodge was doing his best to make a case for his friend. Holmes's stand on labor matters he thought "of no importance really." "It would I confess be a sore disappointment to me if you should decide . . . to pass Wendell over. . . . I am very fond of him & he is in line for the promotion."10

Roosevelt's answer to this letter has been published and widely quoted by students of both Holmes and the Supreme Court. It need only be summarized here. The President agreed with Lodge both as to the Judge's qualifications and the unimportance of his labor views. He even said, "The labor decisions . . . constitute to my mind a strong point in Judge Holmes' favor." But he too stressed the territorial cases and added another caveat. In February, 1901, on the one-hundredth anniversary of John Marshall's elevation to the Supreme Court, Holmes had delivered an address on Marshall in which he had not expressed what Roosevelt considered proper enthusiasm for the great Chief Justice. That speech had been "unworthy," Roosevelt declared, and had demonstrated "a total incapacity to grasp what Marshall did." It was important that Holmes be a party man in the Marshall sense as well as a good judge. Roosevelt demanded assurance on this point and authorized Lodge to put the question frankly to the candidate. If he seemed sound, Lodge was to have him go to Oyster Bay for a final talk before the announcement of the appointment.11

This letter reached Lodge at Tuckernuck (a small island off Nantucket owned by his friend and Harvard classmate, William Sturgis Bigelow) where he was vacationing. "I agree most profoundly with everything you say," he replied. "I can put it to Holmes with absolute frankness & shall, for I would not appoint my best beloved on that bench unless he held the position you describe." The Senator immediately dispatched a note to Holmes making an appointment to see him, and then returned to the mainland. Their conference was a success.

"I told the President you had always been a Republican and never a Mugwump," said Lodge.

"A Mugwump!" Holmes replied stoutly. "I should think not. Why they are mere elements of dissolution."12

Having passed this test, Holmes went to Oyster Bay for the final interview with "TR." He arrived on July 24, but the President was away, and his return was delayed by a heavy fog; so their talk did not take place until the following morning. When it did it was eminently successful. Roosevelt was "entirely satisfied," and Holmes left with the knowledge that he would be nominated. "The way he put his wishes to me . . . was a reward for much hard work," the Judge later explained to Lady Pollock. But Roosevelt was not ready to make his decision public. "He said his mind was made up, but asked me not to mention [it] except to you," Holmes wrote Lodge, and went on to thank the Senator for his "kind feeling" and help. Lodge was naturally pleased, for Holmes was a life-long friend. "I felt sure that you would [be satisfied] for he is our kind right through," he told Roosevelt when he heard the results of the Oyster Bay meeting.13

Though Roosevelt had approved Lodge's choice the picture was not yet complete, for Senator Hoar was very unhappy about the appointment. This accounts for Roosevelt's warning to Holmes that the subject must not yet be discussed publicly. The old Senator was vacationing at the Isles of Shoals, and Lodge wrote to him there telling him the news. Hoar's reply bristled with disapproval. "I do not agree with you about Chief, Justice Holmes," he wrote. "His accomplishments are literary and social . . . not judicial. . . . In his opinions he runs to subtleties and refinements, and no decision of his makes a great landmark in jurisprudence." Hoar went on to say, as Draper had earlier, that the great weight of Massachusetts legal opinion would be hostile to the choice of such a man. He did not mention the labor opinions but hinted at them darkly. "It will be a pity if the Democratic judges . . . while a minority in numbers, shall be believed by the people to comprise the solid strength of the Bench," he wrote. Not content with this, Hoar wrote to Roosevelt, but in a strangely different vein. He said nothing against Holmes, but complained of the way the appointment was being made. "There is no doubt of the absolute right of the President to make such appointments on such advice as he chooses, or without advice, if he prefer," he admitted. But he made it quite plain that he did not like the way Roosevelt was handling the question. "The old method . . . in making these great and irrevocable appointments, has been to let the public know of the vacancy, to allow a reasonable time for all persons interested, especially the members of the legal profession, and the representatives of the States immediately concerned, to make known their opinions and desires. . . ."14

The President was eager to placate Hoar and offered in his answer to this letter to hear and consider any evidence against Holmes which could be presented. He had not consulted Hoar sooner, he said, because he had assumed that the Chief Justice of Massachusetts would be a perfectly satisfactory choice in the eyes of any Massachusetts man. Also, he had not known until very recently that Justice Gray was going to quit. But he was firm in his determination to make the announcement quickly unless Hoar could advance some clear proof that Holmes was unfit. "It seems to me desirable," his letter concluded, "to announce how [the] place is to be filled forthwith."

Lodge also wrote Hoar once again, trying hard to soothe his colleague's ruffled feelings. "I cannot feel that you do justice to judge Holmes in his legal capacity," he said, but added with the proper humility of one who had never practised law, "although I should never for a moment think of setting my opinion against yours on such a question." He mentioned influential lawyers who had expressed satisfaction with Holmes—Judge Gray himself, Knowlton, of course, and former Attorney General Richard Olney. This seemed to have no effect at all, for Hoar's next letter took up the story where he had left it: "I always talk with lawyers, when I meet them about the State, about the Court. It is as common a subject of conversation as the quality of the President of the United States is among men interested in politics. . . . I never heard anybody speak of Judge Holmes as an able judge. He is universally regarded as a man of pleasant personal address . . . but without strength, and without grasp of general principles."15

As their correspondence progressed so fruitlessly, Lodge came to realize that while Hoar was not pleased with the choice of Holmes, what he most seriously resented was the fact that rightful deference had not been made to the Senior Senator from Massachusetts himself. "I feel about it," he had written candidly to Lodge on August seventh, "somewhat as the late Peter C. Bacon, the Dominie Sampson of the Worcester Bar, did when he heard that a neighbor was going to shoot his dog. He said with great indignation, 'If he gives me notice and then shoots my dog, I don't care, but if he shoots my dog without giving me notice, I shall be mad.'"

Hoar was in a delicate position in opposing Holmes. As Roosevelt had indicated, the fact that the candidate was already the Chief Justice of the Massachusetts Supreme Court would prevent any Massachusetts man from publicly questioning his qualifications, and Hoar was no exception. Also, since Hoar's nephew, Samuel, had been mentioned for the coveted vacancy, any serious objection by the Senator to Holmes might be interpreted as a desire to promote a member of his own family. Lodge and Roosevelt both understood Hoar's dilemma but did not wish to injure his sensibilities. Hoar undoubtedly understood it too and in time came to accept it. "The proposed appointment will be considered by the general public as entirely respectable," he admitted to Lodge finally, "and those members of the profession whose opinion is of any value will have to make the best of it." Needless to say, he was speaking for himself, for Lodge finally was able to inform the President, "Mr. Hoar still growls mildly about Holmes not being a great lawyer but he is quieting and is good-natured already and all is well."16

With Senator Hoar reconciled if not satisfied there was no longer need for delay; on August 11 Roosevelt announced the appointment. There was no inordinate stir in the press when the story broke. The news was, the Literary Digest summarized, "generally considered . . . more interesting than momentous." Much stress was placed upon Holmes's labor dissents, and there was a good deal of speculation on the territorial issue which had loomed so important to Roosevelt and Lodge. "If Justice Holmes disagreed with the recent findings of the court in the insular cases, his vote would overturn the majority," admitted the Digest, "but he is said to agree with the court's findings and no disturbance is looked for in that quarter." On the other hand, the New York Herald pictured the fate of America's overseas possessions as trembling in the balance. The conservative Boston Transcript was on the surface satisfied, but could not hide the fears inspired by Vegelahn v. Guntner, though it did not refer to the case directly. "His striking originality of mind will help him when it does not hinder," its editorial remarked primly, and went on at some length in praise of the retiring Justice Gray, characterizing him as "the greatest judge in the language[!]" But the Boston Globe, catering to more plebeian temperaments, called Holmes both an "ornament" and a "strong addition" to the court who would bring to the bench the fruits of his "liberal and well stored mind," and the Democratic Boston Post seemed thoroughly satisfied with what it referred to as the "wise and admirable choice" of the President.17

The amazing thing about the entire episode of Holmes's appointment to the Supreme Court was that neither the press nor the figures who played any important part in it appreciated the significance of what was happening. The new Justice's conception of the dynamic nature of law, so clearly expressed as early as 1881 in his great book, The Common Law, and his belief that the courts should not interfere with legislative action aimed at social improvement even when property rights were in the process restricted, were practically ignored. The newspaper reaction was bitterly depressing to Holmes himself, who almost alone seems to have appreciated what important effects his particular approach was to have on American judicial thinking. "They don't know much more than that I took the labor side in Vegelahn v. Guntner," he complained to his friend Sir Frederick Pollock. He also resented the "incompetence and inadequacy of the ordinary talk" of the people. This was particularly true of those who might have been expected to know better—Senator Hoar, for instance, whose opinions quoted above of Holmes as a judge certainly add nothing to his own legal reputation. And if Hoar is to be believed, most of the lawyers in Massachusetts seem to have been equally weak in appraising their great colleague. Neither Roosevelt nor Lodge was a lawyer (Lodge had a degree, but never practiced) and may perhaps be excused for not appreciating Holmes's legal philosophy. Yet they were both made very unhappy in later years by certain decisions which even a cursory reading of Holmes's Massachusetts opinions should have led them to expect. Roosevelt particularly was put out by Holmes's dissents in some of the anti-trust cases, of which the Northern Securities Case was the most important. Writing to Lodge in 1906, the President declared:

Nothing has been so strongly borne in on me concerning lawyers on the bench as that the nominal politics of the man has nothing to do with his actions on the bench. His real politics are all important. From his antecedents, Holmes should have been an ideal man on the bench. As a matter of fact he has been a bitter disappointment. . . .

In the Northern Securities Case Holmes held, in effect, that combinations as such did not constitute restraint of trade. Was this surprising—coming from the man who had said in his Vegelahn v. Guntner dissenting opinion, "It is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination. It seems to me futile to set our faces against this tendency."18

Both Lodge and Roosevelt had questioned Holmes about his "politics" before his nomination to the Court. If either had understood the man and his point of view, it would have been easy to uncover his stand on industrial combinations. Yet neither appreciated the simple fact that Holmes applied the same standard to a combination of capitalists as he applied to a combination of laborers. Holmes took a position in the Vegelahn Case which was favorable to labor, and from this Roosevelt assumed that he was opposed to trusts. Nine times out of ten this might have been a safe assumption, but if the President had understood Holmes he would have realized that this was the tenth time. Holmes decided cases on legal principles, not on what he thought was right or wrong. Lodge and Roosevelt asked him if he was a Republican. He said, "yes," so they made him an Associate Justice of the Supreme Court. But this did not make him a Republican Supreme Court Justice in the sense that Roosevelt and Lodge wanted him to be.

Probably, in their prenomination quizzes, neither the President nor the Senator went into the trust question at all. Lodge was interested mainly in the territorial issue, and here the candidate's views were similar to his own both personally and judicially. Neither Lodge nor any other imperialist had ever any reason to quarrel with Holmes's opinions in the insular cases with which he dealt. Roosevelt was worried about party regularity as well as imperialism, but was manifestly satisfied when Holmes said that he was not a Mugwump—that he disapproved of "independents" in politics. Being a politician he could not appreciate that Holmes the judge was not Holmes the Republican private citizen. So he was unhappy later not because he had been deceived but because he had not understood. He had only himself to blame.

As Holmes said years later, it was all "rather comic."19 Roosevelt "looked on my dissent to the Northern Securities Case as a political departure," he wrote Sir Frederick Pollock in 1921, and offered an estimate of Roosevelt which demonstrated clearly that he understood "TR" far better than "TR" understood him. "He was very likeable, a big figure, a rather ordinary intellect, with extraordinary gifts, a shrewd and I think pretty unscrupulous politician. He played all his cards—if not more. R. i. p."20

NOTES

1 Gray to Roosevelt, July 9, 1902, in Roosevelt Papers, Library of Congress. Gray had suffered a stroke in February, and was failing rapidly. He died on September 15, 1902. In accepting the resignation, Roosevelt told Gray that if the opening had occurred he would have been raised to the Chief Justiceship. Roosevelt to Gray, July 11, 1902, in Roosevelt Papers.

2 Catherine Drinker Bowen, Yankee from Olympus (Boston, 1944), 343; Literary Digest, xxv, 214-215 (August 23, 1902).

3 Draper to Lodge, February 28, 1902, in Lodge Papers, Massachusetts Historical Society; Ferris Greenslet, The Lowells and Their Seven Worlds (Boston, 1946), 329-330.

4 Lodge's first choice would have been William Henry Moody, but he knew that Moody's age (he was a mere stripling by judicial standards—only forty-nine) was against him. Moody was elevated to the Supreme Bench in 1906.

5 Draper to Lodge, March 7, 1902, in Lodge Papers.

6 Plant v. Woods (176 Mass. 492), quoted in Dorsey Richardson, Constitutional Doctrines of Justice Oliver Wendell Holmes (Baltimore, 1924), 32.

7Boston Globe, May 18, 1902; Draper to Lodge, June 13, 1902, in Lodge Papers.

8 Downes v. Bidwell (182 U. S. 244), 1901; Chief Justice Fuller dissenting.

9 Lodge to Roosevelt, June 5, 1902, in Lodge Papers.

10 Lodge to Roosevelt, July 7, 1902, in Lodge Papers; Holmes to Sir Frederick Pollock, May 17, 1925, in Mark DeWolfe Howe, editor, Holmes-Pollock Letters (Cambridge, 1941), II, 161. Knowlton was appointed Chief Justice by Crane when Holmes resigned. After Holmes's appointment had been announced, Knowlton even went so far as to urge Holmes to resign from the Massachusetts Court immediately, arguing that failure to do so would prejudice the Senate against his confirmation. See Lodge to Roosevelt, August 20, 1902, in Henry Cabot Lodge, editor, Selections from the Correspondence of Theodore Roosevelt and Henry Cabot Lodge: 1884-1918 (New York, 1925), I, 527.

11 Roosevelt to Lodge, July 10, 1902, in Selections from the Correspondence of Theodore Roosevelt and Henry Cabot Lodge: 1884-1918, I, 517-519.

12 Lodge to Roosevelt, July 19 and 26, 1902, in Lodge Papers. Lodge could have had no doubts about Holmes's regularity. In 1884, when most of Boston was scornful of Lodge, and his best friends were cutting him on the street because of his support of Blaine, Holmes was one of the few who stood up for him and supported him cordially, William Lawrence, Henry Cabot Lodge: A Biographical Sketch (Boston; 1925), 40.

13 Roosevelt to Lodge, July 25, 1902, in Roosevelt Papers; Holmes to Lady Pollock, September 6, 1902, in Holmes-Pollock Letters, I, 105; Holmes to Lodge, July 25, 1902, and Lodge to Roosevelt, July 26, 1902, in Lodge Papers.

14 Hoar to Lodge, July 29, 1902, in Lodge Papers; Hoar to Roosevelt, July 28, 1902, in Roosevelt Papers.

15 Roosevelt to Hoar, July 30, 1902, in Roosevelt Papers; Lodge to Hoar, August 8, 1902, and Hoar to Lodge, August 11, 1902, in Lodge Papers.

16 Hoar to Lodge, August 7 and 11, 1902; Lodge to Roosevelt, August 17, 1902, Lodge Papers.

17Literary Digest, XXV, 214 (August 23, 1902); Public Opinion, XXXIII, 229 (August 21, 1902); Boston Globe, August 13, 1902.

18 Holmes to Pollock, September [?], 1923, in Holmes-Pollock Letters, 1, 106; Roosevelt to Lodge, September 4, 1906, in Lodge Papers; Vegelahn v. Guntner (167 Mass. 92), quoted in Constitutional Doctrines of Justice Oliver Wendell Holmes, 30.

19 Holmes to Lewis Einstein, April 1, 1928, quoted in Felix Frankfurter, "Oliver Wendell Holmes, Jr.," Dictionary of American Biography, Supplement I, 422.

20 Holmes to Pollock, February 9, 1921, in Holmes-Pollock Letters, II, 63-64.

Irving Bernstein (essay date 1950)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 5616

SOURCE: "The Conservative Mr. Justice Holmes," in The New England Quarterly, Vol. XXIII, No. 4, December, 1950, pp. 435-52.

[In the following essay, Bernstein argues that Holmes's social and political philosophy were not ideologically liberal, but that Holmes was actually a classical conservative.]

A cherished American myth is that Oliver Wendell Holmes, Jr., was a liberal. This notion, as baseless as the tale of Washington and the cherry tree, was born during the great jurist's life and persists in the national folklore since his death. Walton Hamilton wrote in 1941, "It has taken a decade to elevate . . . Holmes from deity to mortality."1 The time has come to lay the ghost of "Holmes and Brandeis dissenting."

Holmes, in fact, was as profound, as civilized, and as articulate a conservative as the United States has produced. Although he eludes the neatly wrapped and labelled package, his views speak for themselves.

As a young officer during the Civil War, Holmes wrote his sister, "I loathe the thick-fingered clowns we call the people—. . . vulgar, selfish and base. . . . " Age produced no sea-change. When Carl Becker visited Holmes late in life, he was asked,

"Becker, do you love the human race?"

"I've never discovered anything within myself which you, Mr. Justice, would define as a heart overflowing with human kindness, but I wish them well."

"I don't, Becker. God damn them all, I say."2

Holmes, in fact, was a firm believer in capitalism who looked with distrust upon governmental intervention in economic life. Monopolies won his respect, while he regarded unions and strikes suspiciously. The search for security, Holmes felt, was humbug. He was a confirmed nationalist who disparaged international machinery to promote peace. By the same token, he regarded war as the highest expression of man's destiny. "What moved him," H. L. Mencken has observed, "was far less a positive love of liberty than an amiable and half contemptuous feeling that those who longed for it ought to get a horse-doctor's dose of it, and so suffer a really first-rate belly-ache."3

I

Holmes's views were shaped primarily by three forces: his personal history and social status, his experience in the Civil War, and the doctrine of Evolution. For Holmes the accident of birth in 1841 was a stroke of fortune. He entered life with unsurpassed background and endowments, a member of the intellectual aristocracy of New England in the age of her flowering.

Few Americans, excepting perhaps an Adams or a Lee, could claim a more distinguished lineage. His ancestors, arriving in the seventeenth century, embedded themselves like native rock in the New England soil. Holmes wrote in the Harvard Class Album for 1861: "All my three names designate families from which I am descended. A long pedigree of Olivers and Wendells may be found in the book called Memorials of the Dead in Boston. . . . Of my grandfather Abiel Holmes, an account may be found in the biographical dictionaries."4 Abiel, who married the daughter of the president of Yale, occupied the pulpit at Christ Church, Cambridge, and wrote The Annals of America. He was a Calvinist and a Federalist. Abiel's son Oliver studied medicine and became Professor of Anatomy in the Harvard Medical School. He was, as well, the genial, albeit acutely class-conscious, Autocrat of the Breakfast Table. He wrote: "You can't keep a dead level long. . . . If all the cities of the world were reduced to ashes, you'd have a new set of millionaires in a couple of years or so, out of the trade in potash."5 He was a Republican.

The maternal side of Holmes's ancestry produced fewer books but possessed greater wealth and social standing. Colonel Jacob Wendell lost forty buildings in the great Boston fire of 1760. His son Oliver sat in the Senate and Council of the Commonwealth and was a judge and a passionate Federalist. The Wendells were related to the Jacksons, Cabots, Eliots, Quincys, and Bradstreets, and had their portraits done by Copley and Stuart. Judge Oliver Wendell's daughter Sally married Abiel Holmes. Their son Oliver Wendell took Amelia Jackson as his bride. Her father owned one of the most impressive homes in Boston and was a distinguished judge of the Superior Court of Massachusetts.

Oliver Wendell Holmes, Jr., went to Harvard. Indeed, he could not go elsewhere, for, as he wrote, "We love every limb of Harvard College."6 Sally Wendell's father and both her grandfathers had gone there. Dr. Holmes's great-uncle had been treasurer, Judge Wendell a fellow, and Judge Jackson an overseer of Harvard College. Dr. Holmes had attended the institution, becoming a member of Hasty Pudding and Porcellian, and had returned later to take his chair in medicine. Oliver, Jr., made the same clubs, as well as Phi Beta Kappa. When war came he enlisted in the Twentieth Massachusetts Infantry, "the Harvard Regiment." After military service he returned to study law.

Holmes's career advanced in a straight line from one success to the next: law practice in Boston, editor of the American Law Review, author of The Common Law, professor at the Harvard Law School, judge and then Chief Justice of the Supreme Judicial Court of Massachusetts, and Justice of the Supreme Court of the United States. The greater part of his life was spent in the cloistered calm of the bench. Holmes did not know financial insecurity and, in fact, left a substantial fortune when he died. He married Fanny Dixwell, daughter of the principal of his Latin School, who was his constant companion through a long life. Their home, however, was never warmed by the presence of children.

Holmes received all the personal endowments the gods could offer. He possessed a powerful, disciplined intellect, sparkling wit, and a masterful command of language. In him a handsome face and strong body joined with the excellent health that carried him through ninety-three years. He was well over six feet tall, with strong shoulders, a high brow, a distinguished nose, and searching eyes. Holmes's manner was noble, gracious, and often dazzling. Chief Justice Hughes found beneath his "judicial robe the chivalry of a knight."7

The process of reaching maturity in New England's golden age brought a quality of wholeness to Holmes's personality and mind. His father, who was in the literary mainstream himself, wrote: "We all carry the Common in our heads as the unit of space, the State House as the standard of architecture, and we measure off men in Edward Everetts."8 Celebrated figures were at his house for tea—Emerson, Lowell, and Dr. James Freeman Clarke. Emerson, in fact, read young Holmes's college essay on Plato; he did not care for it. As a boy Holmes witnessed the Flying Cloud glide down the ways in East Boston. His family summered at the "old Wendell farm" near Pittsfield, where Melville and Hawthorne lived nearby. His father took him to meetings of the Saturday Club at the Parker House where he rubbed minds with Emerson, Dana, Agassiz, Longfellow, and Whittier.

The combination of these elements gave Holmes unusual personal security. As Hamilton has remarked, "Holmes never had to be introduced. . . . He was somebody. . . . Status opened doors, set presumptions in his favor, saved embarrassment and bother."9 As a consequence, professional and social climbing were absent from his life. His attention was never diverted; security gave him release and freedom from inhibition. He was gifted, in the words of Justice Cardozo, with "serenity . . . , and gentleness, and most of all, benignancy—the benignancy of a soul that has fashioned its own scale of values, and in those deeply graven markings has found the quietude of peace."10

"What we most love and revere generally," Holmes wrote, "is determined by early associations." His youthful associations gave him a passionate devotion to the past and particularly to the old in New England. "The reverence for venerable traditions remains. I feel it in my fingertips. . . . I love every brick and shingle of the old Massachusetts towns." He preferred books in his library that "were on shelves before America was discovered," prints on his walls "that go back two or three hundred years." Old associations became part of his being and when they were wrenched from him "roots are torn and broken that bleed like veins." He was delighted to have outlasted Taney, to be "the oldest judge who ever . . . remained sitting on our bench."11

Of his great-grandmother Temperance Holmes it was said, "To the affairs of her household she was assiduously and unweariedly attentive, and never ate the bread of idleness." Holmes shared her passion for hard work. John Ropes declared that he never knew anyone to study law so ferociously. "He was as busy as a witch in a gale." On the Supreme Court he alone inflicted "cruel and unusual punishment" upon himself by taking extensive notes on argument and by refusing secretarial help. "The mode in which the inevitable comes to pass is through effort."12 Expenditure of energy, however, was pointless without the quest for the superlative. Holmes declared,

No man has earned the right to intellectual ambition until he has learned to lay his course by a star which he has never seen. . . . Only when you have worked alone,—when you have felt around you a black gulf of solitude more isolating than that which surrounds the dying man . . . will you have achieved.13

Although Holmes titillated his friends with naughty words, his taste, like his moral conduct, was impeccably respectable. He nodded approvingly when Chief Justice Taft forbade a western judge to enter court without a waistcoat. Of Ernest Hemingway he wrote, "I wonder at the illusion that one is more real if one evokes sordid situations and bad smells, than if one invites one's readers to fresh air and agreeable and even noble people. . . . Let him leave his garbage."14

II

The Civil War was the searing and maturing experience of Holmes's life. "The generation that carried on the war," he declared, "has been set apart. . . . Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing."15 Half a century after Appomattox he caught himself "deeply and unexpectedly" moved by the Unknown Soldier ceremony.

The Twentieth Massachusetts saw action in many of the major battles of the war, losing five-eighths of its men, killed and wounded. At Ball's Bluff on October 21, 1861, a ball entered Holmes's left breast and came out behind the right, missing the heart and lungs. That night, blood dripping from his mouth; he considered taking poison in anticipation of death. He recovered to fight in the Peninsula Campaign in 1862, where he suffered nothing worse than body lice, scurvy, and diarrhea. In September he was hit in the neck at Antietam. Holmes confided to his diary, "The South have achieved their independence."16 In the second Battle of Fredericksburg he was wounded a third time, shrapnel splintering the bone and tearing the ligaments of his heel. The following summer he wrote his mother, "I honestly think the duty of fighting has ceased for me—ceased because I have laboriously and with much suffering of mind and body earned the right . . . to decide for myself how I can best do my duty."17 Holmes was mustered out on July 17, 1864, having risen from lieutenant to lieutenant-colonel.

The war taught Holmes that life is a struggle, that peace is an idle dream. He wrote of the League of Nations,

Man at present is a predatory animal. I think that the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as it may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of worlds I see no remedy except force. . . . Every society rests on the death of men.18

For Holmes, then, danger became an end in itself. Heidelberg students "with their sword-slashed faces inspire me with sincere respect." A broken neck is not a waste, but "a price well paid for the breeding of a race fit for . . . command."19 Similarly, the will to fight became a vital object.

That . . . faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.20

The war, in addition, made Holmes a confirmed nationalist. During the conflict with Spain, for example, he confessed pleasure in "hearing some rattling jingo talk." War also caused him to take a knightly view of honor—"that for which . . . , if need be, we are willing to die."21

The measure of a man can be taken in his heroes, and Holmes's combined the warlike virtues. Nansen captivated him by an ability to be "gay in the face of death, . . . capable, though a complex and civilized man, to lark like a boy and rejoice over a bellyful of blubber."22 Corporate empire builders like Jim Hill won his admiration by their mastery and ruthlessness.

The war, finally, penetrated his idiom. Holmes would break into Civil War slang in conversation, and his speeches and letters are replete with war imagery. He would "fire off an opinion; "when you have taken one trench there is always a new firing line beyond."

III

Darwin retaught Holmes at the level of generalization what he had already learned in experience on the battle-field. The doctrine of Evolution was the central concept of the age in which he came to maturity, the subject of eager debate at Harvard and the Saturday Club. Holmes, like his contemporaries William James, John Fiske, and Henry Adams, devoured The Origin of Species. He later explained to Morris Cohen that the difference between his father's and his own generations lay in "the influence of the scientific way of looking at the world."23

Darwin, who had himself drawn heavily upon Malthus, foresaw that when scholars in other fields no longer looked at life as a "savage looks at a ship" a grand untrodden field of inquiry would open.24 The historical school of jurisprudence transplanted the evolutionary hypothesis to the study of law. Maitland, Maine, Dicey, Pollock, Vinogradoff, and, not least among them, Holmes, substituted a biological for a mechanical view of society.

For Holmes the study of law became the study of history. He opened his great work The Common Law with this classic statement:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.25

If ideas, like the bone structure of the horse, evolve in response to environment, "truth is the majority vote of that nation that could lick all others."26 In this epistemology the law and the Constitution become working instruments rather than God-given commandments. Legislation then reflects that interest in society which has competed successfully against others. The free market place, like the proving ground of Nature, must be preserved in law, in politics, in economics, and in speech. There is no room for sentimentality; the imbecile, the maimed, and the sick should be killed off.

Evolution freed the mind of the post-Civil War generation to move to the Right. The rampant capitalism of the age was justified because it had prevailed. Holmes's admired Jim Hill pointed out that "the fortunes of the railroad companies are determined by the law of the survival of the fittest."27 Holmes, similarly, did not look unfavorably on the rise of great business combinations.

IV

The ideas Holmes evolved in his formative years supply the keys to his economic and legal philosophies. Francis Biddle has observed that his economic education stopped at the age of twenty-five.28 Holmes worshipped at the shrine of orthodoxy; Adam Smith, Ricardo, and Malthus would have been pleased with his views. Malthus, moreover, deeply influenced Holmes as he had Darwin earlier. "This fellow," Holmes declared, "has stuck a sword into the very bowels of the principle of population."29

The heart of his economics was the individual. Holmes would give the entrepreneur virtually unfettered freedom with the assurance that a progressive economic society and a reasonable distribution of wealth would result. Ownership was a gateway, not a terminus, for "large ownership means investment, and investment means the direction of labor towards the production of the greatest returns."30 These returns were consumed by the many rather than by the few. His hobby was to abjure talk of money and to examine the flow of products. The wheat, the cloth, and the railway travel were consumed by the masses rather than by the rich. If great fortunes were redistributed equally the level of national income would rise hardly at all. Needless to say, he opposed "tinkering with the institution of property."31

In this light, movements seeking the reform or reconstitution of economic society won his distrust. Holmes regarded the stirrings of the Progressive era as "unrest" and reserved searching skepticism for the domestic policies of the first Roosevelt. Socialism was an unscientific system for transferring burdens from the weak, who deserved them to the strong, who did not. It rested, he felt, on dramatic contrasts: "Look at the big house and the little one." He took a dim view of the notion that selfishness would disappear in any social order. "I cannot but reflect that my neighbor is better nourished by eating his own bread than by my eating it for him."32

The collectivist tendency, Holmes believed, was not only "an empty humbug" but constituted a danger to the safeguards in bills of rights. The drive for security, whether in the form of preventing cruelty to animals or socialism, left him cold. He had no sympathy for a society in which people "may be comfortable or may shine without much trouble or any danger." A famous phrase summarized his views: "I have no belief in panaceas and almost none in sudden ruin."33

To labor Holmes held out the iron law and the wage fund. The notion that unions could win a larger share of national income for workers as a whole was "pure phantasy." Organizations might gain more for their own members "at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing."34 Of strikes "I cherish no illusions," while the English General Strike of 1926 "fills me with sadness and apprehension." He worried lest "that noble people is facing ruin." Holmes's advice to labor carries a familiar ring: "Eternal hard work is the price of a living." He distrusted social legislation, refusing to become sentimental about child labor and doubting the value of a statutory minimum wage.35

Holmes was undisturbed about monopoly, nor did he regard bigness as a curse. "Prosecution for being, and not for doing, [is] . . . justified under no proper principle of the law."36 Trustbusting, Holmes felt, undermined natural selection in the market place. The Sherman Act was "a humbug based on economic ignorance," while the Interstate Commerce Commission was unfit to be entrusted with rate-making. The wastes in competition, such as advertising and duplication of establishments, were "the very things the trusts get rid of." When the Dr. Miles Medical Company fixed retail prices by resale price maintenance contracts, Holmes considered the company better able to determine a reasonable price than the courts.37

In summary, Holmes was contented with the status quo. Upon his appointment to the Supreme Court, he wrote, "Some . . . of the money powers think me dangerous, wherein they are wrong."38

V

Holmes's legal philosophy rested upon an analysis of sovereignty, the source of power in government. Diverse groups within a society are in constant conflict and government is the arena for the clash of interest. "Wise or not, the proximate test of a good government is that the dominant power has its way."39 In a democracy power is expressed in majorities. "If the will of the majority is unmistakable, and the majority is strong enough to have a clear power to enforce its will, . . . the courts must yield, as must everybody else."40

Legislation, accordingly, is an extension of the will of the dominant interest. It is "a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else."41 A law cannot be condemned for favoring one class as against another since all laws do that. As a consequence, there are few, if any, scientific criteria for measuring legislation. "I am so sceptical," Holmes observed, "as to our knowledge about the goodness or badness of laws that I have no practical criticism except what the crowd wants." He felt certain that the crowd would not want what it does if it knew more, "but that is immaterial."42

In Holmes's legal universe the law was in a constant state of flux. Each generation and community refashioned it in accordance with "the felt necessities of the time." Hence custom and usage were decisive shaping elements. In Hamilton's words, "The genius of the common law broods over Holmes's world."43

With these premises Holmes became the classic exponent of the doctrine of judicial restraint. In his view the common law was the great area of court action, while the people through their legislatures were primarily responsible for constitutional law. The American federal system, however, permitted no such neat division of labor. The solution for judges, therefore, was to refrain from asserting their own views except under compelling circumstances. The Constitution in this light was a broad charter of powers rather than a code prescribing in detail and for all time the answers to social problems. Holmes said,

Long ago I decided that I was not God. When a state came in here and wanted to build a slaughterhouse, I looked at the Constitution and if I couldn't find anything in there that said a state couldn't build a slaughterhouse I said to myself, if they want to build a slaughterhouse, God-dammit, let them build it.44

Judicial restraint is a two-edged blade that cuts impartially. It may serve liberals seeking to regulate industry as well as conservatives wishing to restrict labor. In the historical context of Holmes's term on the bench, however, its greatest value was to those who pressed for restrictions on business and assistance to labor. This, at bottom, is the source of the Holmes liberal myth.

Illustrations of his "liberal" opinions abound, usually with reservations on the merits. Oklahoma, for example, enacted a statute guaranteeing bank deposits which was challenged as a violation of the due process clause of the Fourteenth Amendment. The Court sustained the law, Holmes holding, "We fully understand . . . the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern."45 Holmes, in his dissent in Truax v. Corrigan, deprecated use of the Fourteenth Amendment beyond "the absolute compulsion of its words" to prohibit social experimentation by the states, "even though the experiments may seem futile or even noxious to me."46 In Coppage v. Kansas the Court nullified a state law prohibiting yellow-dog contracts. "Whether in the long run," Holmes's dissent argued, "it is wise for the workingmen to enact legislation of this sort is not my concern, but I am strongly of the opinion that there is nothing in the Constitution of the United States to prevent it."47

By the same token, judicial laissez faire sometimes produced "conservative" results. During a labor dispute, Governor Peabody of Colorado had Charles Moyer, president of the Western Federation of Miners, arrested and imprisoned ten weeks with no charge. Since, as events proved, there was no basis for the detention, Moyer sued for deprivation of liberty without due process. Holmes, speaking for the Court, refused to assert judicial authority. "So long as such arrests are made in good faith . . . the Governor is the final judge. . . . The ordinary rights of individuals must yield. . . . Public danger warrants the substitution of executive process for judicial process."48 Holmes's dissent in the Dr. Miles Case is another illustration. He held the company's judgment superior to the Court's in pricing its products even at the cost of a resale price maintenance system.

The foundation of Holmes's legal structure was free speech. Some, at least, of his utterances, in Zechariah Chafee's view, are fit to stand beside Milton's Areopagitica and Mill's On Liberty. In Schenck v. U.S. Holmes set forth the fundamental "clear and present danger" doctrine.49 In Abrams v. U.S. he lodged his faith in "free trade in ideas—that the best truth is the power of the thought to get itself accepted in the competition of the market."50 Free speech for Holmes was a Darwinian arena in which ideas would struggle for survival. It was at the same time a prop of a conservative society. As he wrote the Harvard Liberal Club, "With effervescent opinions the quickest way to let them get flat, as with the not yet forgotten champagnes, is to let them get exposed to the air."51

Holmes, however, was not an extremist on free speech, "in which," he wrote, "I have no very enthusiastic belief." On the Massachusetts bench, for example, he sustained a conviction for speaking on the Boston Common without a permit. "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house."52 This decision was invoked by Mayor Hague when he banned free speech in Jersey City. Holmes in McAuliffe v. New Bedford upheld the town's right to discharge an officer for political activity. "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."53

Holmes compromised himself on free speech most notably in the Debs Case. The leader of the Socialist Party was convicted and imprisoned under the Espionage Act for an address criticizing the war policy of the Wilson Administration. Holmes for the Court accepted the jury's verdict without looking behind it, failed to examine the constitutionality of the statute, and refrained from applying his own "clear and present danger" test.54

Holmes's conservatism on the bench was clearly apparent in cases involving contracts. For a man beset with doubts about the cosmos, contract had the virtue of specificity. His dissent in Bailey v. Alabama illustrates this preoccupation in disregard of the status of the Negro in the South. In 1907, Bailey, a colored farmhand, entered into a contract with an employer to work for a year at twelve dollars per month. He received a fifteen dollar advance and was to get $10.75 each month, the remainder to be charged against the advance. After one month Bailey quit without refunding the money, clearly an illegal act under an Alabama statute. The Supreme Court ruled that the contract constituted peonage and was invalid under the Thirteenth Amendment. Holmes, however, dissented. "If the contract is one that ought not to be made, prohibit it. But if it is a perfectly fair and proper contract, I can see no reason why the State should not throw its weight on the side of performance."55

Pennsylvania Coal Co. v. Mahon is in the same vein. The company, by deed executed in 1878, conveyed surface property to a householder but expressly reserved the right to remove underneath coal with the grantee assuming all risks and waiving any claims for losses that might result. A Pennsylvania statute of 1921, however, forbade mining in such a way as to cause subsidence of habitations. It admittedly destroyed the contract rights of the company and the question was whether the police power could be stretched to cover the law's constitutionality. The Court through Holmes held the statute invalid. "What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it." Brandeis dissented.56

VI

"In the structure of the beetle . . . ;" Darwin wrote, "in the plumed seed which is wafted by the gentlest breeze; . . . we see beautiful adaptations everywhere and in every part of the organic world."57 Holmes was just such an adaptation, perhaps the most complete and certainly one of the most appealing figures to grace American history. He has, in fact, entered the pantheon of our heroes, and the myth-makers show no sign of tiring in their busy labors.

A prime function of the hero is to campaign in the politics of the generations that follow. The struggle for Jefferson's legacy and the long shadow that Franklin Roosevelt casts in death are illustrations. In the contest for protagonists the Democrats have the advantage. They point to Jefferson, Jackson, Woodrow Wilson, and the second Roosevelt. The Republicans claim only Lincoln and Theodore Roosevelt, and in both cases there are reservations. Although conservatives have failed to seize the opportunity, in Holmes they could embrace another champion. Their failure to perceive his political value is typical of the anti-intellectual strain in the American Right.

Holmes's value to conservatism is enhanced precisely because he exposed himself to liberal ideas. The free range of his intellect and his extraordinary tolerance offered him the opportunity to examine all views. In 1893, for example, he paid a call at the "humble shrine" of a Boston labor leader. "Sir," he' said, "I am Judge Holmes of the Supreme Judicial Court. . . . As a good citizen I like to understand all phases of economic opinion. What would you like if you could have it?" They "discoursed several times with some little profit."58 Holmes's conservatism, therefore, was of a most impressive and rare variety. His convictions stemmed from knowledge and cerebral mechanics rather than prejudice. He was, in fact, rarely capable of thinking in stereotypes.

There is little likelihood, however, that progressives will give up Holmes without a struggle and they are not without weapons. He was certainly more liberated, if not more liberal, than his reactionary colleagues on the Court. The doctrine of judicial restraint, moreover, led him to affix his signature to many opinions that encouraged social experimentation. Finally, there was in Holmes an elusive, sometimes an impish, quality that confounds any group that seeks to claim him entirely. He was, at bottom, himself.

NOTES

1 Walton Hamilton, "On Dating Mr. Justice Holmes," University of Chicago Law Review, IX (1941), 1.

2 Hamilton, "On Dating Mr. Justice Holmes," 9 n.

3 "The Great Holmes Mystery," American Mercury, XXVI (1932), 124.

4 Quoted in Frederick C. Fiechter, Jr., "The Preparation of an American Aristocrat," New England Quarterly, VI (1933), 4.

5 Quoted in Silas Bent, Oliver Wendell Holmes (New York, 1932), 29.

6 Oliver Wendell Holmes, Speeches (Boston, 1918), 29.

7 "Mr. Justice Holmes," Harvard Law Review, XLIV (1931), 679.

8 Quoted in Bent, Holmes, 34.

9 "On Dating Mr. Justice Holmes," 5.

10 "Mr. Justice Holmes," Harvard Law Review, XLIV (1931), 691.

11 Boyd H. Bode, "Justice Holmes on Natural Law and the Moral Ideal," International Journal of Ethics, XXIX (1919), 399; Holmes, Speeches, 75, 92; Holmes to Sir Frederick Pollock, November 5, 1923, M. De W. Howe, editor, Holmes-Pollock Letters (Cambridge, 1941), II, 123; Holmes to Doctor Wu, November 2, 1928, Justice Holmes to Doctor Wu, an Intimate Correspondence, 1921-1932 (New York, n.d.), 51.

12 Francis Biddle, Mr. Justice Holmes (New York, 1942), 49, 75, 80; Holmes to Dr. Wu, November 2, 1928, Holmes-Wu Correspondence, 52.

13 Holmes, Speeches, 24.

14 Richard Waiden Hale, Some Table Talk of Mr. Justice Holmes and "The Mrs. " (Boston, 1935), II; Holmes to Sir Frederick Pollock, August 20, 1928, Holmes-Pollock Letters, II, 227; Holmes to Owen Wister, n.d., quoted in Bent, Holmes, 17.

15 Holmes, Speeches, 11-12.

16 M. De W. Howe, editor, Touched With Fire, Civil War Letters and Diary of Oliver Wendell Holmes, Jr. (Cambridge, 1946), 72.

17Touched With Fire, 143.

18 Holmes to Sir Frederick Pollock, February 1, 1920, Holmes-Pollock Letters, II, 36.

19 Holmes, Speeches, 63.

20 Holmes, Speeches, 59.

21 Holmes to Lady Pollock, June 9, 1898, Holmes-Pollock Letters, I, 87: Holmes, Speeches, 26.

22 Holmes to Lady Pollock, April 11, 1897, Holmes-Pollock Letters, I, 73.

23 Holmes to Morris R. Cohen, February 5, 1919, Felix S. Cohen, editor, "The Holmes-Cohen Correspondence," Journal of the History of Ideas, IX (1948), 14.

24The Origin of Species (New York, 1861), 422.

25 Quoted in Max Lerner, editor, The Mind and Faith of Justice Holmes (Boston, 1943), 51-52.

26 Quoted in Felix Frankfurter, editor, Mr. Justice Holmes (New York, 1931), 150-151.

27 Quoted in Richard Hofstadter, Social Darwinism in American Thought, 1860-1915 (Philadelphia, 1945), 31.

28Holmes, 86-87.

29 Quoted in Bent, Holmes, 17.

30 Quoted in Lerner, Mind and Faith, 389.

31 Quoted in Lerner, Mind and Faith, 393.

32 Holmes to Sir Frederick Pollock, February 26, 1911, Holmes-Pollock Letters, I, 175-176; H. C. Shriver, editor, Justice Oliver Wendell Holmes, His Book Notices and Uncollected Letters and Papers (New York, 1936), 140.

33 Quoted in Lerner, Mind and Faith, 390.

34Plant v. Woods, 176 Mass. 492, 504 (1900).

35 Holmes to Dr. Wu, May 5, 1926, Holmes-Wu Correspondence, 36; Holmes to Sir Frederick Pollock, September 19, 1919, Holmes-Pollock Letters, II, 25; Hammer v. Dagenhart, 247 U. S. 251, 277 (1918).

36 Quoted in Dorsey Richardson, Constitutional Doctrines of Justice Oliver Wendell Holmes (Baltimore, 1924), 49.

37 Holmes to Sir Frederick Pollock, May 25, 1906, April 23, 1910, Holmes-Pollock Letters, I, 123-124, 163; Dr. Miles Medical Co. v. Park and Sons Co., 220 U. S. 373, 409 (1911).

38 Holmes to Sir Frederick Pollock, August 13, 1902, Holmes-Pollock Letters, I, 103.

39 Quoted in Lerner, Mind and Faith, 378.

40Book Notices and Uncollected Papers, 98.

41Book Notices and Uncollected Papers, 108.

42 Holmes to Sir Frederick Pollock, April 23, 1910, Holmes-Pollock Letters, I, 163.

43 "On Dating Mr. Justice Holmes," 20.

44 Quoted in Alpheus Thomas Mason, Brandeis, A Free Man's Life (New York, 1946), 572-573.

45Noble State Bank v. Haskell, 219 U. S. 104 and 575 (1911).

46 257 U. S. 312, 343 (1921).

47 236 U. S. 1, 28 (1915).

48Mover v. Peabody, 212 U. S. 78 (1909).

49 249 U. S. 47 (1919).

50 250 U. S. 616, 624 (1919).

51 Quoted in Bent, Holmes, 6.

52Commonwealth v. Davis, 162 Mass. 510 (1895).

53 155 Mass. 216 (1892).

54Debs v. U. S., 249 U. S. 211 (1919). See Max Lerner's comments, Mind and Faith, 297-300.

55 219 U. S. 219, 245 (1911).

56 260 U. S. 393 (1922).

57Origin of Species, 60-61.

58 Holmes to Sir Frederick Pollock, January 20, 1893, Holmes-Pollock Letters, 1, 44.

Mark DeWolfe Howe (essay date 1951)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 7440

SOURCE: "The Positivism of Mr. Justice Holmes," in Harvard Law Review, Vol. 64, No. 4, February, 1951, pp. 530-46.

[In the following essay, Howe examines Holmes's posthumous reputation.]

On the occasion of the ninetieth birthday of Mr. Justice Holmes, his successor on the Supreme Court of the United States said that Holmes was "for all students of the law and for all students of human society the philosopher and the seer, the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages."1 At the conclusion of his essay, Mr. Justice Cardozo quoted from a letter which he had received from Holmes saying that he had always believed that neither place, nor power, nor popularity "makes the success that one desires, but the trembling hope that one has come near to an ideal."2 Mr. Justice Cardozo was reminded by these words of the wistful confidence of Keats: "I think I shall be among the English poets after my death." And Cardozo went on to say that "there was no 'fool's paradise' for Keats" and to predict that there would be none for Holmes.3

Nearly twenty years have passed since Cardozo predicted that Holmes' trembling hope would be realized, and it is time to inquire whether the prediction has been fulfilled. Though many would think it obvious that time has done nothing to diminish the stature of Holmes, in recent years there have been such frequent efforts to belittle his reputation, to discredit his philosophy of law, and to disparage his achievements as a judge that Cardozo's prediction cannot be considered wholly fulfilled. When Holmes died in 1935 would any columnist, even the most irresponsible, have had the temerity to describe him as "the cynical and senile brutalitarian"? It seems clear that he would not. Yet it is with these delicate words that Westbrook Pegler has characterized Mr. Justice Holmes.4

It would be pleasant for those who believe that Cardozo's estimate of Holmes was justified, to write off the fulmination of Pegler as the outburst of an isolated, malignant temper. Unfortunately, however, Pegler's slur upon the memory of Holmes represents something more significant than a small boy's blasphemous efforts to attract attention. The theme which he so stridently plays had earlier been played to smaller audiences by far more responsible persons. Pegler's rendition is coarser than theirs, but the melody is unmistakably the same.

The first elaborate formulation of the thesis that Holmes' philosophy of law is anti-democratic, un-American and totalitarian in tendency was in an essay by Father John C. Ford5 and a year later it was restated by Father Francis E. Lucey.6 The next article in which the criticism was repeated was by Ben W. Palmer of the Minneapolis bar. His first paper, under the somewhat flashy title, "Hobbes, Holmes, and Hitler," appeared in 1945,7 and having brought forth a number of enthusiastic letters to the editor of the Journal was followed by another, "Defense Against Leviathan,"8 along the same lines. It is not my purpose to deal with these particular efforts to persuade the American people that the philosophy of Holmes was repugnant to the principles of American civilization. The criticism of Fathers Ford and Lucey, popularized by Mr. Palmer and perverted by Mr. Pegler is so firmly grounded in the Catholic philosophy of law that were I to attempt to meet it directly I should find myself quickly engaged in a theological controversy beyond my competence to discuss. All I need say of the essays of Father Ford and Father Lucey is that they take a position which it was almost inevitable that members of the Jesuit Order would take: Holmes not only proclaimed himself a skeptic in matters of religion and denounced man's relentless effort to give human values a more than human significance, but he denied the existence of that law of nature upon which the Catholic philosophy of law is based. It would have required no special insight to predict, twenty years ago, that Jesuit teachers of law would find Holmes' skepticism philosophically unacceptable.

The criticism of Holmes with which I shall deal has been most effectively stated by Professor Lon Fuller of the Harvard Law School. To date Professor Fuller has not directed his attention to the achievements of Holmes as judge and has discussed only the shortcomings of his philosophy of law as expressed in writings other than judicial opinions. This makes it suitable that I should accept those same limits.

I am strongly persuaded that Professor Fuller has expressed in his writing on Holmes a point of view which many lawyers have come, perhaps unconsciously, to share—a feeling not only that Holmes' philosophy of law was inconsistent with the highest traditions and aspirations of Western thought, but that his scale of moral and political values was badly suited to measure the needs of a progressive and civilized society. As I understand the thesis, it is that Holmes, child of Hobbes, is the American father of legal positivism. By positivism in law Professor Fuller tells us that he means "that direction of legal thought which insists on drawing a sharp distinction between the law that is and the law that ought to be."9 The justification for classifying Holmes as a positivist, within this definition, is found by Professor Fuller in many of Holmes' utterances, perhaps nowhere more clearly than in passages from his well-known address on "The Path of the Law."10 There he told his audience, first, that the student of law must come to recognize as fundamental the distinction between law and morality, and, second, that law was not usefully to be defined in terms of right and wrong and the principles of ethics, but should be considered to be nothing more esoteric than an informed and prophetic judgment as to what the courts will do in fact. With that positivist tendency in Holmes' thought, Professor Fuller contrasts the philosophy of natural law—"the view which denies the possibility of a rigid separation of the is and the ought, and which tolerates a confusion of them in legal discussion."11 He asks the present generation of lawyers to abandon the positivism of Holmes and to return to the earlier and healthier conviction that there is nothing shameful in the association of law and morality.

My first concern will not be with the merits of the philosophical issue which Professor Fuller has so persuasively presented. It will rather be with a problem upon which he touched in passing—that is, the considerations which led Holmes to accept the positivist theory of law. When Hobbes first formulated the principles of positivism he gave an explicit reason for his effort to separate the domain of morals from the province of jurisprudence; he wanted men to obey even those rules of law which they believed to be unjust. Holmes, says Professor Fuller, never made it clear what prompted him to accept the dichotomy and has thus made our task of comprehension peculiarly difficult. He suggests, however, that Holmes' Civil War experience bred in the young soldier a sentimental enthusiasm for the heroism of obedience, which in the mature philosopher became blind respect for authority as such.12 Though Professor Fuller does not quote Holmes' most famous pronouncement on the virtue of the soldier's faith, he undoubtedly had in mind the Memorial Day speech of 1895 in which Holmes had spoken these words:

I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.13

I should not hesitate for a moment to agree that this passage reflects most significantly the mixing of skepticism and romanticism in Holmes' faith. My disagreement with Professor Fuller is with his suggestion that when Holmes spoke thus romantically of the soldier's sustaining faith he was indirectly committing himself to a positivist theory of law which, according to Professor Fuller, puts fiat above reason in the legal process.

Before discussing Holmes' theory of law one should consider his theory of morality, and, in order to comprehend his principles of ethics, one should look at the circumstances in which his mind and character came to their maturity. Catherine Drinker Bowen in Yankee from Olympus, has popularized the notion that Dr. Holmes, the Justice's bouncing father, was an insignificant figure of such consuming personal vanity and petty conceit that his son gained no significant profit from growing up in his household. This is a most misleading picture of the Doctor and a completely inadequate interpretation of the relation between father and son. It disregards entirely the fact that Dr. Holmes, throughout his whole life, was struggling vigorously to break away from the oppressive traditions by which American thought and American morality had, in his father's generation, been so effectively suffocated. Perhaps the Doctor was never able to shake himself entirely free from those traditions—he refused to read novels on Sunday—but with respect to the basic intellectual and moral issues of his day, he stood invariably with those men of vision who insisted that the questions which the advance of science had put to man should not be answered by the outworn formulas of Calvinism and the threadbare precepts of Protestant morality. The seeds of skepticism which had been planted in the mind of the medical student in Paris blossomed in the maturity of the novelist and essayist who asked of the old order whether its settled pieties had any other justification than familiarity. When he suggested that the sin of Elsie Venner might find a truer explanation and a more Christian understanding if its sources were approached through science rather than through Calvinism, he was asking that skepticism be given rights. He saw as persistent and inescapable the American's obligation to re-examine every article of national faith, whether political or religious. "To think," he said, "of trying to waterproof the American mind against the questions that Heaven rains down upon it shows a misapprehension of our new conditions. If to question everything be unlawful and dangerous, we had better undeclare our independence at once; for what the Declaration means is the right to question everything, even the truth of its own fundamental proposition."14 An alert young man, brought up in a household presided over by a father so wholeheartedly dedicated to the cause of free inquiry, could scarcely fail to start his life with the conviction that the first consequence of the scientific revolution must be the development of a skeptical mind.

Nurtured in that belief, Holmes must have found many, if not all, of the aspects of the Harvard College which he entered in the fall of 1858 hopelessly benighted. The sponge of complacency with which Professor Francis Bowen, Professor of Natural Religion, Moral Philosophy, and Civil Polity, erased the writing on the wall was the product of Harvard's stubborn assurance that reason and morality, religion and piety had discovered the final answers to the mysteries of the universe, and that the teacher's responsibility to his students was to explain those answers and develop an appropriate humility before the altar of unalterable truth. Is it any surprise that the young Holmes, encouraged by his father to ask on all occasions the unanswerable question, in his senior year had to be publicly admonished by President Felton for "repeated and gross indecorum in the recitation room of Professor Bowen"?15 In his junior year Holmes had written an undergraduate essay in which he had offended the pieties of his teachers by suggesting that "duty is not less binding had the Bible never been written, or if we were to perish utterly tomorrow."16 This rather pallid expression of skepticism aroused the anger of a more orthodox classmate, who published a protest against the Emersonian tendencies of Holmes' thought, and suggested that his ideas were "barbarous in the province of reason and practical piety."17 It is not unlikely that the satisfaction which Holmes found in disturbing the intellectual tranquilities of his teachers and his fellow students added fresh impetus to the skeptical instinct. It is certain, in any case, that his reading as an undergraduate followed those frontiers of inquiry to which the scientific impulse was carrying philosophical and ethical speculation.

As Holmes' college course came to its end, he found himself, under the influence of his father and his times, far from the moorings of religious faith which his New England ancestors had laid and to which most of his contemporaries were still fixed. Having lost all confidence that moral convictions may find sufficient justification in the dogma of religion, Holmes' search was for a system of philosophy, or, perhaps, for a way of life, which would give some assurance that a sense of duty had validity in a universe which must be explained in scientific terms. Where the normal processes of intellectual growth would have led him had tranquility not been shattered by the outbreak of the Civil War no one can say. It is possible that his early admiration for Emerson might have led him to attempt to systematize the Emersonian insights, and that out of that effort might have come a philosophy quite different from that which the circumstances of war in fact produced. That, however, is the idlest speculation, for the War did come, and with it the need for again examining the foundations of morality.

Although in later life Holmes indicated that he had small sympathy for men of strong belief and distrusted the crusading spirit of the reformer, when the Civil War broke out it is clear that he was moved to join the Union forces by an abolitionist fervor. He acknowledged later that he shared the emotional state of the abolitionists—a state which he came to dislike because "it catches postulates like the influenza."18 1 am not concerned at the moment, however, with the later development of Holmes' thought but with the significant fact that the young man, who during his college course had come to the conviction that morality could no longer find its justification in a theology which science had shown to be unacceptable, went to war convinced that the cause for which he fought was noble and right. It may even be said that he went in a spirit of some defiance, anxious to prove to a complacent older generation that a skeptic in religion was not necessarily a skeptic in other things, and that though science had turned the creed of Harvard and of his ancestors to dust and ashes, the Puritan's standard of morality and duty still survived. In the very thick of war he wrote to Charles Eliot Norton that it was only by preserving his conviction that the War was the holy crusade of the nineteenth century that he was able to keep his hand to the sword." Certainly there is no indication that at the opening of the War, Holmes had become a skeptic in matters of morality. His father's influence had carried him far on the way to emancipation from tradition; it had led him to repudiate the religious and the intellectual assumptions upon which Harvard's decencies and Boston's proprieties were built, but it had not led him seriously to doubt that the accepted standards of behavior had an external or preordained validity. Those to whom postulates are as catching as the influenza are unlikely to look skeptically upon the disease and are susceptible to its infection simply because of the conviction that each postulate reflects at least a facet of the cosmic truth.

If Holmes went to the War a convinced abolitionist, what was it that led him thirty-four years later in his Memorial Day speech to say categorically: "I do not know what is true. I do not know the meaning of the universe"? The answer to this question is not to be found in the maturing process of the intervening years, setting the young man's crusade in historical perspective. It is rather to be found in the drama of the Civil War itself—a drama so vast in its political and physical aspects that one easily overlooks its no less exciting and confusing moral aspects. The Twentieth Regiment of Massachusetts Volunteers, which Holmes joined immediately after his graduation, reflected the national confusion and the whole uncertainty of purpose by which the Union effort from first to last was frustrated. Among the officers with whom Holmes was most intimately associated was his classmate, Penrose Hallowell, Quaker and abolitionist, whose religious convictions condemned war and whose reforming faith made participation in war seem necessary. Another friend was William Francis Bartlett who gravely doubted the justice of the Northern cause, yet fought gallantly with its armies, losing a leg with the Twentieth Regiment, returning to command another regiment of volunteers, and ultimately rising to the rank of Major General at the age of twenty-six. Of other friends the most intimate was Henry Abbott. From the very first Abbott proclaimed himself a Copperhead, throughout the War cursed the purposes and abilities of Lincoln, condemned the strategy of the northern armies, and denounced the emancipation of the slaves as unconstitutional. Yet he fought with supreme courage in every battle in which the Twentieth was engaged, refused promotion which would have taken him to safer posts, and, when he finally fell in the Wilderness, was mourned by generals and privates as their heroic brother.

Read in this context of association and experience Holmes' Memorial Day speech takes on a very different meaning from that which his latter-day critics have given it. The young man who had joined the army in the conviction that the cause of abolition made the Civil War the moral crusade of the nineteenth century, found that those who saw it as the blundering effort of politicians to achieve through force ends which were beyond the constitutional limits of their power, were capable of a selfless heroism equalling if not exceeding his own. What wonder is there, then, that such a young man, already skeptical in matters of religious faith, should find himself at the War's end doubtful that "the right" as he conceived it had a better claim to universal validity than "the right" so differently conceived by his neighbor. Perhaps a man of relentless rationalism, having discovered that he neither knows what is true nor has solved the riddle of the universe, would have been satisfied to settle down, cushioned by his skepticism, to observe the silly antics of mankind—affirming nothing, denying nothing. Perhaps a man of firmer complacency would have returned from the War convinced that the greater sacrifices which wounded and dead comrades had made for the cause as they saw it were less significant than the sacrifices which he had made for the cause as he had seen it. But it is not surprising that a sensitive spirit and a skeptical mind, remembering such friends as Henry Abbott, gave neither the cynical nor the complacent answer to the problem of intense experience and came out of the War, despite all doubt, convinced of one truth "that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use."

To read Holmes' Memorial Day Address as the creed of an authoritarian is totally to disregard its context; to suggest that he there was saying that might makes right, that the is is more important than the ought, distorts his thesis beyond recognition. It is to read his eloquent address to veterans as if it were a law review article on jurisprudence. This is not to say that Holmes never permitted oratory to get the better of judgment, or to deny that he let himself too frequently use the language of arms to dispose of questions of morality; it is only to ask that we take appropriate account of the influence which the experience of the Civil War had in moulding the contour of his skepticism.

If this interpretation of Holmes' intellectual development is accepted, it means that when he began the study of law in the fall of 1864 he had passed through two decisive phases of his growth. First, he had shaken off the religious faith on which so many of the assumptions of the world around him were based, and, second, he had learned from the War that personal taste in morals does not establish universal or objective truth in ethics. Skeptic in faith and skeptic in morals, he quickly found, however, that the world around him, particularly the world of legal theory in which he moved at the Harvard Law School, was heavy with the stagnant complacency of the pre-War years. The law in books was a conglomerate of Coke's artificial reason and Kent's equally artificial morality. Outside of books, the law, to be sure, was less burdened with pretension and piety, for such judges as Shaw in Massachusetts and Gibson in Pennsylvania had shown that good sense and the adjustment of English principle to American reality could make the law an effective instrument of government. Yet the words of Rufus Choate, spoken to the pre-War generation, still struck chords of sympathy in the minds of the post-War generation of lawyers. Choate had insisted that our national need was for "reformation of our individual selves," not for reform of our legal institutions. Describing the body of the law which he considered so deserving of preservation, Choate had said:

The judge does not make it. Like the structure of the State itself, we found it around us at the earliest dawn of reason, it guarded the helplessness of our infancy, it restrained the passions of our youth, it protects the acquisitions of our manhood, it shields the sanctity of the grave, it executes the will of the departed. Invisible, omnipresent, a real yet impalpable existence, it seems more a spirit, an abstraction,—the whispered yet authoritative voice of all the past and all the good,—than like the transient contrivance of altogether such as ourselves.20

It is difficult for the present generation of lawyers to realize that when Choate spoke in these terms he was not simply indulging his passionate weakness for oratory, but was defining the prevailing concept of law. The concept was not appreciably shaken for most American lawyers until the 1880's. That it was shaken then was due primarily, perhaps, to the effort of Sir Henry Maine and others of the historical school to examine the institutions of the law with the same scientific detachment which Darwin had shown in examining the physical world around him. It was, of course, inevitable that Holmes, if he could be persuaded that law offered the same opportunity for generalization which the new philosophy and the new science offered, would join those scattered forces which were seeking to rid the law of its analytical and moral dogmatism. His first struggle was to persuade himself that the law did offer large opportunities for creative speculation. Shortly after the end of his law school course, if not earlier, he became convinced that the satisfaction which his philosophical instinct was seeking could be found in the law. During the fifteen years which passed between his graduation and his first appointment to judicial office, his energies were dedicated to the task of showing that a critically accurate understanding of the law would only be possible after two steps had been taken. First, its analytical traditions must be subjected to the same rigorous and skeptical inspection to which science had subjected theology. Second, its moral postulates, imbedded in the old complacency, must be reexamined without fear and without deference to settled pieties.

I need not discuss the first efforts which he made in essays and in book reviews to achieve those tasks. The fruits of all those efforts were brought together in The Common Law. The most significant achievements of that book were two. He made it impossible for later generations of lawyers to accept as valid Coke's maxim that "reason is the life of the law," and compelled them instead to accept as true the conflicting maxim that "the life of the law has not been logic; it has been experience."21He thus led American legal scholarship to follow the historical rather than the purely logical—even theological—methods which had threatened to dominate legal thought. The other achievement, less apparent though it may have been, was no less significant. It was to call attention to the fact that though moral conceptions had been of predominant importance in the initial formulation of rules of law, time and experience had given to the language of morality as it survives in law, a meaning substantially different from that which it originally possessed. In the first cases in which such moral concepts as those of "fraud," "malice," and "negligence" had been fruitfully utilized, the concepts had relatively clear dimensions. As time passed, however, the words had lingered in the law, still laden with deceptive implications of morality, but infused with a new meaning and serving new purposes. Generalizing the tendency of growth, Holmes found that the terms of subjective morality had acquired in the law an objective meaning quite different from that which they had at first possessed.

So far as I know, the latter-day critics of Holmes do not cite The Common Law to show that his creed was that of the positivist who asserts that law must concern itself exclusively with the is and never bother itself with the ought. Yet his address on"The Path of the Law" to which they have so frequently taken exception says little if anything more than what he had already said in The Common Law. The differences in emphasis are largely the result of the fact that The Common Law was a volume written for sophisticated and mature lawyers, whereas "The Path of the Law" was an address to students. Each effort, however, was the expression of the same philosophical concern of which I have already spoken. In talking to students, Holmes asked them at the outset to look behind the surface of traditional definitions to the stuff of the law. For generations, students had been told that law is "a system of reason" and had been charged by their elders to remember that it is "a deduction from principles of ethics." We may have forgotten the words of Rufus Choate, but, to the audience which Holmes addressed, the suggestion that the invisible and omnipresent law was "the whispered yet authoritative voice of all the past and all the good" still had persuasive eloquence. Read with appreciation of the circumstances in which the address was delivered, "The Path of the Law" is anything but the formulation of a totalitarian creed. It is a philosopher's plea that theory should be founded in fact; an historian's argument that experience tells more of truth than does eloquence.

The passages in the "The Path of the Law" to which Holmes' critics have taken most frequent objection opened with the suggestion that it was desirable to dispel a prevailing confusion between morality and law. In order to dramatize the suggestion, he urged that the student should look at the law from the standpoint of the bad man—a hypothetical figure who was concerned neither with moral right nor with moral wrong, and whose only interest was in knowing what sanctions society might bring to bear upon him if he followed a course of lawless conduct. Such a man, Holmes indicated, might have a more accurate understanding of the meaning in law of such words as "fraud," "malice" and "intent" than a student nurtured in the pieties of Rufus Choate. If Holmes' historical analysis in The Common Law was accurate and perceptive, it is hard to see how his dramatic reiteration of the same analysis in "The Path of the Law" became totalitarian. Professor Fuller and Holmes' other critics have not, so far as I know, argued that he was mistaken in saying that the language of morality when used in the law loses much of its ethical content. When Holmes' critics show that he was wrong in that matter, it will be time for them to show the error of his philosophical way. While that thesis remains unrefuted, however, the friends of Holmes are likely to believe that the current criticism of his views is founded either in misunderstanding of his argument or in an unimaginative, literalminded reading of "The Path of the Law."

The misinterpretation seems almost willful when one remembers that Holmes prefaced his argument with the following paragraph:

I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. . . . When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that I ask you for the moment to imagine yourselves indifferent to other and greater things.22

Is this the language of one who sought to make law a matter not of reason but of fiat and who was not concerned with questions of the ought and only interested in the is? Does it indicate a repudiation of the conviction so firmly stated in The Common Law that "rules of law are or should be based upon a morality which is generally accepted"?23 Professor Fuller says nothing of this prefatory caution nor does he refer to that other passage in "The Path of the Law" in which his positivist villain spoke of the direction which he thought the path should follow. "I look forward," said Holmes, "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."24

Professor Fuller has not, of course, overlooked such passages as those which I quote. He dismisses them with the casual statement that Holmes "did not always himself remain faithful to the program for a rigid separation of law and morals laid down in his early essays."25 It is my thesis that Holmes never laid down the program which Professor Fuller ascribes to him, that from first to last he insisted that the ultimate source of law is the moral judgment of the community. He felt, however, that understanding of the law would be more perceptive than it had been if one saw morality as its source rather than its content. If Holmes' critics would limit their efforts to the task of showing that this conviction was mistaken they might succeed, but that success would not establish their present thesis that his philosophical concern was solely with the is and never with the ought.

Professor Fuller, with others, treats Holmes' definition of law—the prediction of what the courts will do in fact—as another aspect of the positivist's refusal to let conceptions of morality play their appropriate part in the legal process.26 Once more this seems to involve an almost willful refusal to understand his thesis and his definition. Believing as Holmes did that "the law is the witness and external deposit of our moral life," it is inconceivable that he should ask lawyers to leave out of their predictions of what courts might be expected to do in fact—in other words, out of their consideration of law—all attention to the influence of morality on the minds of judges and jurors. What he was asking was that lawyers and judges should think things and not words, and become conscious of their responsibility to bring decisions into conformity with current standards of morality. Holmes once said that the strength of Mr. Chief Justice Shaw lay in his "accurate appreciation of the requirements of the community whose officer he was," and that few judges "have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred."27 In "The Path of the Law," the alleged source of all imperfection, Holmes spoke of the utility of history, and described its use by lawyers as "the first step toward an enlightened skepticism, that is towards a deliberate reconsideration of the worth"28 of rules of law. "It is revolting," he went on to say, "to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past."29 Remembering such utterances as these, how is it possible to accept Professor Fuller's statement that Holmes' "avowed purpose" was "to cut the law loose from the ethical considerations that have shaped it"?30

The critics of Holmes might, perhaps, admit that they have exaggerated the positivist elements in his theory of law. Should they make that admission, I believe that they would return to the assault on other lines of battle. They would tell us, first, that the effort which he made to look at law from the bad man's point of view added nothing to our understanding of its character. I should be willing to admit that if his effort is read as an attempt to reach the heart of a philosophical problem, it was not entirely successful. It usually takes something more than a shift in emphasis to achieve profound insight. What Holmes was seeking to do was to put the familiar and valid thesis of The Common Law in dramatic terms, to suggest to his audience that their understanding of law would be more penetrating if they washed its precepts in cynical acid, and in doing so, discovered that its language of subjective morality was deceptive. Perhaps his effort was an artistic failure, possibly the dramatic image of the bad man was bound to distract the attention both of the speaker and the audience from the philosophic point in issue. If Holmes' failure was merely artistic, however, criticism of his effort should be concerned with that failure and not with the thesis which he sought to establish.

The other line of attack which I believe that Holmes' critics might be expected to follow would be the assertion that whatever his own philosophy may have been, he put it in such terms as to encourage his disciples to the commission of philosophic sin. By asking lawyers to think of themselves as bad men, by urging them to separate law and morality, by telling them that law is simply a prediction of what courts will do in fact, he started the train of positivism on its journey to cynicism. This visiting of the sins of the children upon their father seems a somewhat harsh sentence, particularly when it is imposed by the philosophers who ask that morality should play a part in law. If the misinterpretations of Holmes' beliefs by some of his disciples have been similar to those of his critics, the primary blame is on disciples and critics alike and not on Holmes. Again, however, I think it only proper to acknowledge that Holmes may deserve some blame for crediting his audience with an imagination greater than they possessed. Though I have spoken of his distrust of the rhetorical excesses of Rufus Choate, he himself was an effective orator and allowed himself, perhaps too frequently, to express philosophic doctrines of great subtlety in the dramatic language of oratory. To say this, however, is only to repeat my earlier point that legitimate artistic criticism is not necessarily valid philosophic criticism.

If my efforts thus far have met with any success, I trust that I have demonstrated that Holmes did not deny that a primary source of law is the realm of moral standards in which society has its being, and that he considered the first responsibility of the lawyer and judge to be that of bringing the law into conformity with those moral standards. It may be asked, however, whether this deference to morality had any substantial significance if Holmes denied, as he did, that our moral standards have objective—or, as he liked to say, cosmic—significance. Those persons whose articles of religious faith include the conviction that the Law of Nature has real existence and that virtue as we conceive it lies at the heart of reality, are compelled, of course, to believe that when Holmes repudiated the absolute in morals, he destroyed the ethical foundations of the law. For those of us, however, who doubt the cosmic significance of human values, I wonder whether the rejection of the absolute necessarily entails such destructive consequences. May not the value which is merely human have an influence on law as decisive as that which is gloriously absolute? Only if one is persuaded that it may, will it be possible to accept the interpretation of Holmes' philosophy of law which I have suggested. For if it is believed that standards of behavior, which are sustained by human sanctions only, may not lay claim to the honors of morality, then Holmes, by giving no other support to those standards than the taste and preference of men, denied that morality is a source of law. Such critics as Professor Fuller, however, do not purport to defend the absolute. The character of their misinterpretation follows a direction which suggests that his real offense, in their eyes, may be his moral skepticism, not his legal positivism.

This suggestion, that the true ground of their hostility to Holmes is something different from what it appears to be, is not, I believe, an insolent effort on my part to charge his critics with intellectual dishonesty, or a sly attempt to suggest that I know them better than they know themselves. For it seems to me that it is at this point of inquiry that we reach an issue of transcendent importance. That issue concerns problems of metaphysics and ethics more directly than it does questions of law, yet it is inescapably presented in the philosophy of Holmes. The question to which I refer is this: are we intellectually willing and emotionally able to accept that total skepticism which led Holmes to question whether man has a cosmic significance "different in kind from that which belongs to a baboon or a grain of sand"? There are many indications that our stomachs are not strong enough to accept the bitter pill which Holmes tendered us. Professor Fuller is not the only legal philosopher who is asking us to return, if not to the whole of the tradition of natural law, then at least to a significant portion. Although Professor Fuller has given to the concept of natural law a meaning substantially different from that which history has given it, his use of the familiar words is significant of a desire, shared by many thinkers of our generation, a desire to reinstate the monarchy of absolutes—no longer perhaps as an absolute monarchy but one subject to the constitutional restraints of scientific reason. This new doubt of our generation whether the skepticism of Holmes did not carry us too far is partly the result of the glimpse which Hitler gave us of cynicism triumphant. We have begun to ask ourselves whether, despite Holmes, there are not some standards of decency so fundamental and so permanent that they may properly be described as absolute. The legitimacy of such inquiry is beyond question; the one serious danger is that the glib journalism of such mountebanks as Westbrook Pegler will persuade us that there is no difference between the skepticism of Holmes and the cynicism of Hitler.

Those who are encouraging the revival of natural law, though they do not ask us to receive it with all its implications of divine authority, seem to me to be seeking shelter from skepticism beneath the deceptive security of a phrase. The security is sure to be deceptive so long as the phrase embraces no concepts more serviceable than those of social convenience, utility and the public need. If that is all that is included in this new law of nature which is being offered us as an alternative to the positivism of Holmes, it seems to me clear that we are only being asked to swap phrases in the middle of the philosophic stream. The problem of getting across will still be with us. The problem of defining law, the problem of deciding cases, and the never-ending problem of determining through what processes and by what standards the influence of morality on law is to be made effective, remain as they were when Holmes considered them. The danger to be feared in this effort to revive the concept of natural law is that it will lead us unconsciously back to the shop-worn absolutes of an earlier day. If criticism of Holmes proceeds without protest along the lines which it has recently followed, we shall soon find ourselves persuaded that skepticism inevitably breeds cynicism. To avoid that danger we are likely to become fearful of skepticism and seek solace in the delusive concept of natural law.

None of Holmes' serious critics has charged him with cynicism. As Professor Fuller has pointed out, Holmes found it possible to escape the despair which might seem the natural consequence of total skepticism by a romantic faith in the fruitfulness of struggle and of action. By putting his faith in the language of arms he used a tongue which to our generation is distasteful. I see no reason, however, for holding the language which experience made natural to him too much against him. His temperament, like ours, demanded some form of assurance that things are, or at least may be, better than they seem to the eye of reason. The experience of the Civil War, the memory of friends who had died for causes which they did not understand, provided him with the materials for faith. We might find that faith more lovable if its context had been less military. But we, who are also seeking for a faith which will give us protection from our own skepticism, should not be hypercritical of one whose search was inspired by impulses like our own. I wonder, in the end, whether a revived though pallid faith in the law of nature is not less healthy than his. If we should accept it, are we not likely soon to find ourselves not only allied with those who repudiate the achievements of skepticism but eager to rediscover the comforts of the absolute? If that eagerness becomes predominant in our philosophy, we shall be obliged once more to free ourselves from the old shackles. We would do better to stand by Holmes' faith and his skepticism than to repudiate both.

1 Cardozo, Mr. Justice Holmes, 44 Harv. L. Rev. 683, 684 (1931).

2Id. at 691.

3Id. at 692.

4 See Boston American, Dec. 18, 1950, p. 34.

5 Ford, "The Fundamentals of Holmes' Juristic Philosophy" in Phases of American Culture 51 (1942).

6 Lucey, Natural Law and American Legal Realism, 30 GEO. L.J. 493 (1942).

7 Palmer, Hobbes, Holmes, and Hitler, 31 A.B.A.J. 569 (1945).

8 Palmer, Defense Against Leviathan, 32 A.B.A.J. 328 (1946).

9 Fuller, The Law In Quest of Itself 5 (1940).

10 Holmes, "The Path of the Law" in Collected Legal Papers 167 (1920).

11 Fuller, op. cit. supra note 9, at 5.

12Id. at 106-07.

13 Holmes, Speeches 59 (1913).

14The Professor at the Breakfast Table, 2 Works of Dr. Oliver Wendell Holmes 295 (1892).

15 Tilton, Amiable Autocrat, 264 (1947).

16 Holmes, "Notes on Albert Durer, " 7 Harvard Magazine 41 (1860).

17 7 id. at 144.

18 Unpublished letter, Holmes to Harold Laski (Sept. 18, 1918).

19Touched with Fire 122 n.I (Howe ed. 1946).

20 I Works of Rufus Choate 436 (1862).

21 Holmes, The Common Law I (1881).

22 Holmes, Collected Legal Papers 170 (1920).

23 Holmes, The Common Law 44 (1881).

24Id. at 195.

25 Fuller, op. cit. supra note 9, at 117.

26 Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376, 383-84 (1946).

27 Holmes, The Common Law 106.

28 Holmes, Collected Legal Papers 186 (1920).

29Id. at 187.

30 Fuller, supra note 26 at 384.

Saul K. Padover (essay date 1960)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 9238

SOURCE: "The American as Skeptic: Oliver Wendell Holmes (1841-1935)," in The Genius of America: Men Whose Ideas Shaped Our Civilization, McGraw-Hill Book Company, Inc., 1960, pp. 249-70.

[In the following essay, Padover discusses Holmes's role on the Supreme Court as a pragmatic dissenter.]

When twentieth-century Americans speak of judges, they are likely to think first of Oliver Wendell Holmes. He had the superb qualities that symbolize greatness in a jurist—striving for truth, tolerance of ideas, skepticism in the face of dogma, urbanity of manner, grace of expression, philosophic balance and, in the words of Judge Learned Hand, "above all, humility before the vast unknown." There has never been another American judge quite like Holmes, the Boston Brahmin who graced the United States Supreme Court for nearly a third of this century. His impact on America, particularly in the crucial area of judicial thought and posture, has been pervasive and lingering.

Holmes was not merely a justice of the Supreme Court; he was a special kind of justice. His uncommonness derived not from any originality of particular juridical theories or precedent-shattering judicial decisions—he was often a dissenter from the majority on the Court—but from his personality. The Holmes character and style had a distinct flavor, as unique as a work of art. Peculiarly American in one sense—in his pragmatism plus humaneness—he was also exceptional in the American political-democratic tradition. A salty Yankee seasoned in intellectual brine, Holmes was a dedicated skeptic, cheerfully doubting the noblest tenets of his countrymen, and gleefully questioning the most devoutly held certainties of his philosophical friends.

Henry Stimson gives one example, that of Holmes' disagreement with the noted Harvard philosopher Royce (1855-1916): "He talked of his old arguments with Josiah Royce. He laughed and laughed over them. He said that the trouble with Royce was that whenever he, Holmes, got him cornered, he would take refuge in saying, 'Well, I am in the bosom of God'; while Holmes would reply, 'Nonsense, you are just in a rathole that I have cornered you in.'"

As free of cant as his predecessor John Marshall, whom he admired considerably, Holmes was blessed with that rare form of intellectual grace known as wit. In addition, his mind was fortified by a buoyancy positively Voltairean in its irreverence and cultivated by a philosophic curiosity that matched Jefferson's. According to Justice Felix Frankfurter, Holmes reminded judges that "in order to be weighty they need not be heavy." For all his erudition, Holmes was never heavy.

Oliver Wendell Holmes, Jr., was born in Boston on March 8, 1841, the son of a father whose reputation has been eclipsed by the subsequent renown of his son. Like the Adams family, the Holmeses belonged to the New England aristocracy. "All my three names," young Holmes wrote in the Harvard College album of the Class of 1861, "designate families from which I am descended. A longer pedigree of Olivers and Wendells may be found in the book called Memorials of the Dead in Boston." From this line of ancestors, the future justice inherited much of his sturdy independence; from his father came his good humor and the sharpness of his wit. "Two and two," the father wrote in The Poet at the Breakfast-Table, "do not always make four, in the matter of hereditary descent of qualities. Sometimes they make three and sometimes five." It was five in the case of his son.

Oliver Wendell Holmes, Sr. (1809-94) was a celebrated figure whose rationalism and humor are reminiscent of another native Bostonian, Benjamin Franklin. The senior Holmes was a physician by profession and a writer by avocation. Professor in (and dean of) the Harvard Medical School, Dr. Holmes was the author of popular verse, psychological novels, and amusing books, the best known of which were the Breakfast-Table series (The Autocrat of the Breakfast-Table, 1858; The Professor at the Breakfast-Table, 1860). The witty professor did not spare even the profession of medicine, to which he contributed learned articles. "I firmly believe," he said in an address to the Massachusetts Medical Society, "that if the whole materia medica as now used could be sunk to the bottom of the sea, it would be all the better for mankind—and all the worse for the fishes."

The cheerful irreverence and raillery of the father seeped into the thought of the son. The wry humor and skepticism of Holmes the physician is echoed in the judge. "Of course everybody likes and respects self-made men," the senior Holmes wrote in The Autocrat at the Breakfast-Table. "It is a great deal better to be made in that way than not to be made at all." There is an echo of this in Justice Holmes' dissenting opinion in the Northern Securities Company case. In Holmes, Sr.'s Pages from an Old Volume of Life we have in a nutshell the son's basic aproach to the philosophy of the law: "Of relative justice law may know something; of expediency it knows much; with absolute justice it does not concern itself."

Next to heredity and the immediate environment—"We are all tattooed in our cradles with the beliefs of our tribe; the record may seem superficial, but it is indelible," his father wrote—the most enduring influence on the younger Holmes' life was the Civil War. At its outbreak, when President Lincoln called for 75,000 volunteers, the twenty-year-old Harvard senior enlisted in the infantry. Characteristically, "he was walking down Beacon Hill with Hobbes' Leviathan in his hand," according to a contemporary, when he was informed that he had been commissioned a first lieutenant.

As an officer in the Twentieth Massachusetts Volunteers, young Holmes saw some of the bloodiest fighting of the war. He was wounded three times, twice severely and once almost mortally. At the Battle of Ball's Bluff (October 1861), Lieutenant Holmes was shot in the chest. He reports in his crisp diary: "I was hit at 41/2 PM. . . . I felt as if a horse had kicked me and went over—1st Sergt Smith grabbed me and lugged me to the rear a little way & opened my shirt and . . . the two holes in my breast & the bullet. . . ." Years later he told a friend ironically, "When I was dying after Ball's Bluff, I remembered my father's saying that death-bed repentances generally meant only that the man was scared." After recovery, he returned to the front as a captain. During the Battle of Antietam (September 1862), he was shot in the neck. He wrote home the next day:

My Dear Parents . . . Usual luck—ball entered at the rear passing straight through the Central seam of Coat & waistcoat collar coming out towa [rd] the front on the left hand side—yet it don't seem to have smashed my spine or I suppose I should be dead, or paralyzed or something—It's more than 24 h'rs & I have remained pretty cocky, only of course feverish at times. . . . [His father diagnosed the wound: "Through the neck,—no bullet left in wound. Windpipe, food-pipe, carotid, jugular, half a dozen smaller, but still formidable vessels, a great braid of nerves, each as big as a lamp-wick, spinal cord—ought to kill at once, if at all. Thought not mortal, or not thought mortal—which was it?"]

In "My Hunt After the Captain," published in the Atlantic Monthly in December 1862, Dr. Holmes told movingly how he had sought his "first-born" through many towns in Maryland and on the road to Philadelphia. He finally found him being fussed over by adoring ladies in the home of Mrs. Howard Kennedy in Hagerstown, twelve miles from Antietam. After a long convalescence, Holmes returned to duty, fought again in Maryland and at the Battle of Fredericksburg (May 1863), was once again wounded, this time by a piece of shrapnel that shattered his heel. He was finally mustered out of service on July 17, 1864, with the rank of lieutenant colonel.

Holmes never forgot the Civil War; it left an indelible imprint on his soul. Many decades later he wrote in a letter to Sir Frederick Pollock in 1920, "I loathe war—which I described when at home with a wound in our Civil War as an organized bore—to the scandal of the young women of the day, who thought that Captain Holmes was wanting in patriotism."

The Civil War battles, some of the most sanguinary in history up to that time, matured him as a man, steeled his character, and deepened his insight into the fragility of human existence: "As long as man dwells upon the globe, his destiny is battle, and he has to take the chances of war." He lost forever the easy optimism of his countrymen. To have proved himself in battle—in a war that tried the souls of men and tested the nation's existence—was to have undergone an experience which, Holmes said, was "incommunicable." Only battle-tested veterans, men who knew what it was to fear for life, what it meant to see their own bodies bleeding and their comrades torn to pieces could understand the searing experience of war. Matchless, enduring, and elevating, the experience set him and his generation apart from their fellows. This is how Holmes put it, in a Memorial Day address to the veterans of the Grand Army of the Republic at Keene, New Hampshire, in 1884, in almost mystic tones:

Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing. While we are permitted to scorn nothing but indifference, and do not pretend to undervalue the worldly rewards of ambition, we have seen with our own eyes beyond and above the gold fields the snowy heights of honor, and it is for us to bear the report to those who come after us. . . . Our dead brothers still live for us, and bid us think of life, not death—of life to which in their youth they lent the passion and glory of the spring. As I listen, the great chorus of life and joy begins again, and . . . our trumpets sound once more a note of daring, hope, and will.

In the autumn of 1864, Lieutenant Colonel Holmes entered Harvard Law School, after considering and rejecting other possible careers, among them art and writing. There he formed a close friendship with William James, and they engaged in continuing philosophical arguments. But Holmes did not let philosophical speculation, in which he was to have a lifelong interest, interfere with his chosen profession. Even after graduation in January 1866 and admission to the bar the following year, he devoted himself to the technical study of the law with an absorption that baffled his friends. "For two or three months," Holmes wrote to "Dear Bill" James in December 1867, "I debauched o' nights in philosophy. But now it is law—law—law. My magnum opus was reading the Critique of Pure Reason." The next April he again wrote to James:

Since I wrote in December I have worked at nothing but the law. Philosophy has hibernated in torpid slumber, and I have lain "sluttishly soaking and gurgling in the devil's pickle," as Carlyle says. It has been necessary—if a man chooses a profession he cannot forever content himself in picking out the plums with fastidious dilettantism and give the rest of the loaf to the poor, but must eat his way manfully through crust and crumb—soft, unpleasant, inner parts which, within one, swell, causing discomfort in the bowels.

Such concentration unavoidably assured Holmes' career. He had the qualities needed for success. Handsome, elegant, brilliant, hard-working, ambitious, he was bound to rise to eminence. The speculative William James, observing his friend's single-minded pursuit of his legal career, remarked perceptively that "my Wendly boy" was "composed of at least two and a half different people. . . ." One was a philosopher, and the other a somewhat cynical and hard-minded lawyer bent on success. On the Supreme Court, Holmes was to show these distinct parts of his character on more than one occasion.

Success came with fair rapidity. At thirty he became lecturer on constitutional law at Harvard and editor of the American Law Journal. Three years later he edited and annotated the twelfth edition of Chancellor Kent's Commentaries on American Law, a four-volume work that was then the bible of American lawyers. In 1881, Holmes published The Common Law, consisting of the Lowell Lectures he had delivered the previous year and which became a landmark in the realistic study of American jurisprudence. It made his reputation as a jurist. His fame was now such that in 1882, at the age of forty-one, he was offered a professorship at Harvard and an appointment to the Judicial Supreme Court of Massachusetts. Holmes accepted the judgeship. "To think of it," his sprightly seventy-three-year-old father said with delight, "—my little boy a Judge and able to send me to jail if I don't behave myself."

In 1902, after Holmes had served on the Massachusetts bench for nearly twenty years (the last three as chief justice), Theodore Roosevelt appointed him to the United States Supreme Court. President Roosevelt knew Holmes' reputation as a legal scholar and admired him as a Civil War hero, but he first wanted to make sure that the Boston Brahmin judge was a liberal like himself, a man in "entire sympathy with our views." After the two Massachusetts senators, Henry Cabot Lodge and George F. Hoar, presumably reassured the President of the acceptability of Holmes' views, the appointment was confirmed by the Senate, in December 1902. Roosevelt, expecting in Holmes a pliable judge, was soon to be angrily disappointed.

For the white-haired Holmes, lean, erect, and sparkling at sixty-one, the appointment to the Supreme Court was the beginning of a great new career. He was to remain on the supreme bench, its ornament and its legend, through half a dozen presidential administrations until he resigned, still hale and racy, at ninety. By an historic coincidence, the humor of which would have delighted Holmes, the last case he heard on the Supreme Court was the first for a lawyer who was destined to become its chief justice within a quarter of a century. As Earl Warren relates the incident, he argued his first case before the Supreme Court on a Friday in June 1930; the next Monday Justice Holmes announced simply: "I won't be there tomorrow," and never returned to the Court. Chief Justice Warren, telling the incident, remarked that his friends have accused him of driving Holmes from the Supreme Court: "One look at you and he said I quit.'" Holmes died in 1935, ninety-four years old.

What Holmes had brought to the Supreme Court was not only a finely tempered and keenly cultivated mind but, more important, a special point of view, a philosophy of life and society that was not swayed by the winds of temporary doctrine or transient opinion. In a deeper sense, Holmes the Supreme Court justice, although called upon to deal with crucial questions of practical life, was above the battle in that he refused to become emotionally involved in the political currents or commitments of the moment, whether liberal, reformist, pacifist, or Socialist. Actually, he was not particularly interested in such currents. "As you know," he wrote to Harold Laski, "I am not much on politics." Not subject to what he called the "hydraulic pressure" of public opinion, Holmes occasionally surprised or shocked his liberal friends with judicial decisions that ran counter to prevailing emotions. Thus, taking a common-law position in defense of property, he dissented from the majority in the trustbusting Northern Securities Company case in 1904. And he again offended liberal opinion when he concurred, on the implied ground of national defense, with the majority in the sentencing of a Socialist leader in the free-speech case of Eugene V. Debs.

This case involved Eugene Victor Debs (1855-1926), founder of the American Socialist Party and its five-time presidential candidate. Under his leadership, the Socialist Party, which increased its presidential vote from about 97,000 in 1900 to nearly one million in 1920, dropped its Marxist phraseology but retained its Marxist ideology. Its 1912 platform, for example, blamed the capitalist system for nearly all the ills that afflict mankind, including armaments, crime, slums, child labor, insanity, and prostitution. Tried in Federal Court for advocating pacifism in World War I, Debs addressed the judge in September 1918, with brave eloquence before receiving sentence.

The case reached the Supreme Court on appeal, and Holmes, in Debs v. U.S. (1919), wrote the unanimous opinion of the Court upholding the sentence. He was not, of course, against free speech or against Debs as a socialist, although he despised both Debs and socialism. "I wonder," he wrote to Laski in April, "if Debs really has any ideas. What I have read of his discourse has seemed to me rather silly—and what he said about the judgment against him showed great ignorance." But, in a technical sense, Debs did violate the law, as Holmes wrote to Sir Frederick Pollock: "There was no doubt that the Jury was warranted in finding him [Debs] guilty or that the act [Espionage Act of 1917] was Constitutional. Now I hope the President will pardon him and some other poor devils with whom I have more sympathy." Holmes was unhappy about the whole thing. "I hated to have to write the Debs case," he admitted in a private letter to Herbert Croly in May, "and still more those of the other poor devils before us the same day and the week before. I could not see the wisdom of pressing the cases, especially when the fighting was over and I think it quite possible that if I had been on the jury I should have been for acquittal but I cannot doubt that there was evidence warranting a conviction on the disputed issues of fact." President Wilson refused to pardon Debs, but President Warren G. Harding did so in 1921.

To American liberals, those who most warmly admired Holmes, he was a baffling phenomenon. They expected him to pursue a consistently liberal line on the bench, but he eluded their pattern. His conception of the function of a judge was not theirs. John Dewey suggested that, if liberalism meant faith in human intelligence and respect for ideas as the supreme force in the solution of social problems, then Holmes was a liberal. If it meant an acceptance of prevailing doctrines of political reform just because they were regarded desirable or noble at any given moment in history, then he was hardly one. In truth, Holmes was a conservative much of the time and a pragmatist all the time. As Dewey said: "He has no social panacea to dole out, no fixed social program, no code of fixed ends to be realized." What Holmes was guided by was not tailored doctrine but skeptical philosophy and the experience of life.

There was a duality in Holmes as a judge. On the one hand he was a disciplined jurist bound by a profound respect for the law as it existed; on the other, he was a philosopher who viewed the human condition from the vantage point of universality. On one level, the law was a hard taskmaster, holding society together in an orderly framework of daily exigencies. On another level, the law, being pragmatic, local, and subject to amendment and alteration, had no cosmic significance. To a philosopher, no man-made statute really mattered much in the long view of history. This cosmic awareness tinctured Holmes' thinking and provided him with a pervasive skepticism—and humility—in areas that many men, including judges, considered certainties. Speaking before the Harvard Law School Association in New York in 1913, Holmes enunciated his judicial philosophy with almost Olympian detachment:

I have no belief in panaceas and almost none in sudden ruin. I believe with Montesquieu that if the chance of a battle—I might add, the passage of a law—has ruined a state, there was a general cause at work that made the state ready to perish by a . . . battle or a law. Hence I am not much interested one way or the other in the nostrums now so strenuously urged. I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. . . . I do not pin my dreams for the future to my country or even to my race. I think it probable that civilization somehow will last as long as I care to look ahead—. . . perhaps also bred to greatness and splendor by science. I think it not improbable that man . . . may have cosmic destinies that he does not understand.

In Holmes' philosophy there was a kind of suspension of philosophy, at least of the traditional variety. Systematic philosophers, who seemed to know the answers to the most thorny problems of man and the universe, left him unconvinced. He was equally skeptical of moralists—"I naturally shrink from the moral tone," he wrote to Laski—and critical of dogmatists. He felt that none of the claimants to certainty really knew enough to substantiate their sweeping assertions about truth and the human condition. Large generalizations, including judicial decisions, were merely expressions of the "longing for certainty" to be found "in every human mind." But, he said, "certainty generally is illusion, and repose is not the destiny of man." Objecting to what he called "delusive exactness," Holmes insisted on intellectual humility and suspension of judgment in the presence of the unknown. "I think none of the philosophers sufficiently humble," he told William James in a letter in which he made some critical remarks on James' Pragmatism. And he wrote to Laski, "Why should we not be humble—why not willing to admit that the primordial wiggle of the first churning of chaos came before our time?"

The only thing that was meaningful, Holmes reiterated in his writings and speeches, was life itself—the plain, unvarnished reality of daily existence, with its joys and conflicts. The dynamism of human life was its own justification; it could not fit into preconceived theories. "From the point of view of the world," he said to the Boston Bar Association in March 1900, "the end of life is life. Life is action, the use of one's powers. . . . Life is an end in itself, and the only question as to whether it is worth living is whether you have enough of it." Holmes used a similar expression some eighteen years later in a letter to Sir Frederick Pollock: " . . . Realize life as an end in itself. Functioning is all there is—only our keenest pleasure is in what we call the higher sort. I wonder if cosmically an idea is any more important than the bowels."

In a private letter to a friend, William James complained that Holmes' philosophy was "immature" and "unworthy" of a judge: "It is curiously childish to me." But to Holmes it was mature. Faith in life as a continuing struggle and experimentation was at the base of his approach to law. Nothing in human affairs, he held, was either sacrosanct or permanently fixed. Everything, including the federal Constitution, which Holmes had sworn to uphold, was flexible and subject to change. "The Constitution," he said in a famous statement, which echoed that of Jefferson a century earlier, "is an experiment, as all life is an experiment."

Holmes was one of the pioneers in the pragmatic study of jurisprudence. Even before Charles Sanders Peirce, William James and John Dewey developed the theories of pragmatism and revolutionized social thought in America, Holmes analyzed the law, not as an immutable system, but as an experimental process. In The Common Law he challenged the prevailing theories of natural law—which assumed absolute doctrines of eternal (unchanging) truths—with his assertion that the "life of the law has not been logic: it has been experience." Law, he went on to explain, was the product of time and experience, rather than handed-down dogma:

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Law, to Holmes, was not an ought but an is. Personal preferences or pet legal theories had little to do with the hard reality of law as it existed at any given time. Law was subject to alteration by orderly processes as a result of "felt necessities," but while on the statute books and backed by the sovereignty of government, it remained a brute fact of life. "When I talk of law," Holmes wrote to Laski in 1917, "I talk as a cynic. I don't care a damn if twenty professors tell me a decision is not law if I know that the courts will enforce it." The old veteran of the Civil War had no illusions about the sacredness of human life vis-à-vis the needs of government. Holmes frankly and cheerfully accepted the idea of the use of force as a social and political necessity—whenever the occasion arose. Every society, he said, "rests on the death of men." Government does not hesitate to kill "when it sees fit and can."

"I think that the sacredness of human life," Holmes wrote to Pollock (in 1920), "is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of worlds I see no remedy except force."

Like Dewey, Holmes took a relativist position on moral values and judgments. Consistent with his rejection of natural law, he asserted the idea that truth in human relations was subject to changing conditions as seen and experienced by individuals. As such, its validity was personal instead of cosmic. To William James, of whose metaphysical theories he was dubious, he wrote in 1907: "I have been in the habit of saying that all I mean by truth is what I can't help thinking. The assumption of the validity of the thinking process seems to mean no more than that. . . . I have learned to surmise that my can't helps are not necessarily cosmic can't helps—that the universe may not be subject to my limitations; and philosophy generally seems to me to sin through arrogance. It is like the old knight-errants who proposed to knock your head off if you didn't admit that their girl was not only a nice girl but the most beautiful and best of all possible girls. I can't help preferring champagne to ditch water.—I doubt if the universe does."

Holmes developed his relativistic position concerning truth and values more fully in "Natural Law," an article published in the November 1918 Harvard Law Review. It is interesting, as Professor Arnold Brecht has pointed out in his comprehensive work, Political Theory (1959), that Holmes' relativism was close to that of pre-World War I German jurists and sociologists, whose writings the Justice "did not seem to know." (The essence of the relativist argument was that truth and value judgments, matters of personal preference, were not subject to scientific proof.)

Holmes felt that one man's choice of values was as good as another's—an opinion, Professor Brecht reminds us, almost identical with that expressed by Max Weber in his epochal 1904 article, "'Objectivity' in Social Scientific and Social Political Knowledge." An individual may strongly assert his preferences and even fight for them, but he cannot prove them by reason or theorize them into universality. "I don't talk much of rights," Holmes said, "as I see no meaning in the rights of man except what the crowd will fight for."

Holmes' article in the Harvard Law Review is couched in terms more personal than is the wont of theoretical philosophers. It contains the quintessence of his relativistic and skeptical attitude toward both life and law:

There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk . . . this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural laws. . . . Certitude is not the test of certainty. . . . I love granite rocks and bayberry bushes, no doubt because with them were my earliest joys. . . others, poor souls, may be equally dogmatic about something else. . . . The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar . . . as something that must be accepted by all men everywhere . . . a right is only the hypostasis of a prophecy . . . behind these legal rights is the fighting will . . . to maintain them . . . ; but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a pre-existing right. A dog will fight for his bone.

Skepticism in the face of dogmas and relativism in regard to values underlay Holmes' legal thinking and help explain his role as the "Great Dissenter" on the Supreme Court. His dissents—in which Justice Louis D. Brandeis usually joined after his appointment to the Court in 1916—became celebrated for the independent position they embodied and for the matchless style in which they were couched.

Although Louis Dembitz Brandeis (1856-1941) is coupled with Holmes as a Great Dissenter, the two men were not intimate and did not altogether share the same philosophic outlook. Both were men of large liberal spirit, particularly in the field of free speech, but of widely different temperaments. Holmes' predilection was for legal and philosophical reasoning; Brandeis' propensity was for economic data. Holmes built his cases like a worldly philosopher; Brandeis constructed his like an academic social scientist. Holmes was an amused and amusing skeptic; Brandeis was a dead-serious believer in reform. "I'm afraid Brandeis has the crusading spirit," Holmes once said with ironic affection. "He talks like one of those upward-and-onward fellows."

It was that crusading spirit that had caused such a storm of opposition when President Wilson appointed Brandeis to the Supreme Court in January 1916. The most powerful conservatives of the day, among them seven former presidents of the American Bar Association (including William Howard Taft, Joseph H. Choate, and Elihu Root), opposed the nomination and attacked Brandeis' public as well as private life. "The propaganda in this matter," President Wilson wrote, "has been very extraordinary and very distressing to those who love fairness and value the dignity of the great professions." The opposition to Brandeis, partly motivated by anti-Semitism, was mainly due to his reputation as a liberal who had for years fought stubbornly for social justice and economic equality. Brandeis considered big business monopolies the greatest single danger to American democracy. He advocated government regulation of unrestrained economic bigness, protection of small business, freedom of labor to organize, and other social reforms, such as pensions, sick benefits, and unemployment insurance. He may justly be regarded as the father of the New Deal (of which he did not always approve, primarily because its governmental powers were becoming "too big").

To the advocacy of his social-economic reform program, in writings, speeches, and testimony before Congress, Brandeis brought a mastery of economic detail and a knowledge of the total national economy that was unprecedented, especially in a lawyer and judge. He had the rare gift of marshalling his ideas with a precision of language and (in the words of Charles A. Beard) "a display of stubborn and irreducible facts knit closely together" that was overwhelming in its impact. Before his appointment to the Court he had given freely of his time in the service of causes which he considered just and democratic.

"Some men," Brandeis said in 1911, "buy diamonds and rare works of art; others delight in automobiles and yachts. My luxury is to invest my surplus effort, beyond that required for the proper support of my family, to the pleasure of taking up a problem and solving, or helping to solve, it for the people without receiving any compensation. Your yachtsman or automobilist would lose much of his enjoyment if he were obliged to do for pay what he is doing for the love of the thing itself. So I should lose much of my satisfaction if I were paid in connection with public services of this kind. I have only one life, and it is short enough. Why waste it on things I don't want most? I don't want money or property most. I want to be free."

Brandeis' idealism and his known mastery of the complex data of modern life were the reason the equally reform-minded Woodrow Wilson selected him for the Supreme Court.

On the Court, Justice Brandeis' liberal position remained unchanged. In the fields of civil liberties and economic justice his judicial opinions were so unswerving that one prominent educator likened him to Lincoln. "You two," Alvin Johnson wrote to Brandeis (November 1936), "seem to me the two most serenely implacable democrats in all history."

Brandeis upheld his social philosophy either in separate opinions or in concurrence with Holmes' dissents. The two justices continued to respect one another. "I don't see much of him," Holmes wrote to Laski in 1920, "except in Court but he is a great comfort to me." And again the next month: ". . . and that makes me think of Disraeli and the affection that he inspired, and that makes me ask whether loveableness is a characteristic of the better class of Jews. When I think how many of the younger men that have warmed my heart have been Jews I cannot but suspect it. . . . Brandeis, whom many dislike, seems to me to have this quality and always gives me a glow, even though I am not sure that he wouldn't burn me at a slow fire if it were in the interest of some very possibly disinterested aim. I don't for a moment doubt that for daily purposes he feels to me as a friend—as certainly I do to him."

Holmes did not, of course, always dissent, nor did he always agree with the liberal Brandeis. Much of the time, in fact, Holmes agreed with his "brethren" on the bench, the majority of whom were conservative in their economic outlook. He shared his fellow justices' antipathy for economic radicalism, but on grounds more sophisticated than theirs. He considered radical theorists and socialists fools or worse; they were "shriekers," whose proclaimed passion for economic equality, he said, was "merely idealizing envy." They simply had no grasp of the facts and meaning of life. The advocacy of "wholesale social regeneration" through "socialized property," Holmes wrote in the Illinois Law Review in 1915, was an "empty humbug." It ignored human beings as individuals with their immense range of talents, efforts and aspirations. "I never read a socialist yet from Karl Marx down," Holmes told Harold Laski, "and I have read a number, that I didn't think talked drool."

Holmes felt equal disdain for such American radicals as Henry George, Thorstein Veblen, and Eugene Debs. He disliked theories and legislative acts based upon them that involved the dangerous business of what he said was "tinkering with the institution of property." It is not too surprising, therefore, that he concurred with the conservative majority in about three fourths of the cases in which the Supreme Court held state legislation contrary to the Fourteenth Amendment.

The key words in the Fourteenth Amendment (1868), under which much state legislation in the economic sphere after the Civil War was challenged in the courts, were:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law.

The amendment was originally designed to provide protection for the civic rights of the newly enfranchised Negroes, but the due process clause was used increasingly by the federal courts to strike down social-economic legislation that was distasteful to conservative property interests—and that had nothing to do with the rights of Negroes.

In some cases, Holmes wrote the majority opinion for the Court. But his dissents, qualifying him for the exclusive title of the Great Dissenter, were Olympian in their disregard for precedent.

There were two general areas in which his dissents were conspicuous. One was his blunt rejection of dogmatic interpretations of the federal Constitution. The other was his approach to the problem of free speech.

Although he shared his colleagues' aversion for radicals and radical legislation, he did not accept the dogmatic economic and legal theories they used to justify their decisions. His rejection of dogmatism in Supreme Court rulings—in itself a major service in the cause of openmindedness—is best seen in three important cases, those of Lochner v. New York (1905),Truax v. Corrigan (1921), and Tyson Bros. v. Banton (1927).

The Lochner case was of special significance because it was one of the first to deal with social legislation in the field of labor protection. It involved a New York state law limiting the hours of labor in bakeries to ten a day and a maximum of sixty a week. The act was passed under the general "police powers" of the state and was designed to protect the health of the bakers. Challenged as a violation of "liberty of contract" under the Fourteenth Amendment, the Supreme Court upheld the challenge by a vote of five to four, and declared the law invalid. The majority opinion, written by Justice Rufus W. Peckham, went beyond the immediate act and stated sweeping political-economic principles that all but destroyed the power of any states to legislate in the welfare field. "The act," Justice Peckham wrote, "is . . . an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best."

In addition to that of Holmes, there was a dissenting opinion written by Justice John M. Harlan in which Justices Edward D. White and William Rufus Day concurred.

But Holmes' dissent became a landmark in sociological jurisprudence, in what Roscoe Pound has described as the pragmatic movement in the law that aimed at "putting the human factor in the central place." Holmes started out with a blunt rejection of Peckham's underlying assumptions. "This case," he wrote, "is decided upon an economic theory which a large part of the country does not entertain." Whether a judge personally liked a law or not, it was not his business to deny the "right of a majority to embody their opinions in law." The statute books were full of laws (many of them upheld in previous Supreme Court decisions) that were unwise or tyrannical—Sunday laws, lottery laws, school laws, tax laws—and yet within the right of the citizens to enact them. The New York state act regarding the bakers was in the same category. It was now being declared invalid, Holmes suggested, not because it violated the Fourteenth Amendment—it had nothing to do with that Amendment—but because it did not fit into the preconceived economic doctrines of the judges. "The Fourteenth Amendment," Holmes wrote in a passage that was to echo through the decades, "does not enact Mr. Herbert Spencer's Social Statics" (a teleological work, published in 1850, which contained the usual Spencerian generalizations unblemished by empirical data). The smuggling of dogmatic doctrines into the Constitution to justify the judges' economic bias was, in Holmes' view, bad law and bad policy.

"But a constitution," he continued, "is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

He took a similar position in Truax v. Corrigan, which involved labor, and in Tyson Bros. v. Banton, which concerned theater tickets. In both instances, Holmes rejected a priori theories and upheld the right of the states to legislate without hindrance by the Supreme Court. In Truax v. Corrigan, the Court invalidated an Arizona statute which provided that no injunctions could be issued against peaceful picketing. Chief Justice William Howard Taft, in a fiveto-four decision, held that the Arizona act was unlawful in that picketing, being inherently an attack on property, violated the due process clause of the Fourteenth Amendment.

In his majority decision, Justice Taft wrote that picketing was "a direct invasion of the ordinary business and property rights" and that such experimentation as was involved in the Arizona law was unlawful: "The Constitution was intended . . . to prevent experimentation with the fundamental rights of the individual." Professor Felix Frankfurter, a future justice of the Supreme Court, commented in The New Republic (1921) that the decision ignored American economic realities: "For all the regard that the Chief Justice of the United States pays to the facts of industrial life, he might as well have written this opinion as Chief Justice of the Fiji Islands."

Holmes dissented. He protested, with a touch of irony, against the dangers of "delusive exactness in the application of the Fourteenth Amendment" (by which the judges confused picketing, as a potential threat to business, with established property rights) and insisted that legislatures had a right to pass laws to remedy or redress evils. "Legislation may begin where an evil begins." He reiterated that it was not the Supreme Court's business to interfere with legislation on the ground that it did not coincide with the judges' economic theories:

I must add one general consideration. There is nothing I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect.

Similarly, in the Tyson case, in which the Supreme Court held that a New York state law setting a 50-cent limit on the mark-up of theater tickets was unconstitutional—taking away the rights of property without due process—Holmes dissented and repeated his belief that the powers of the legislature must not be curbed to fit the bias of the judges:

I think the proper course is to recognize that a State legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. . . . I am far from saying that I think that this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution of the United States to prevent their having their will.

In his dissents connected with the free-speech cases, Holmes was equally outspoken. Here he not only challenged the prevailing passions of intolerance—generated by World War I—but explored the difficult concepts and practices of free speech on a philosophical level reminiscent of Jefferson. Among the most important cases in which Holmes expressed his dissenting opinions were: Abrams v. U.S. (1919), Gitlow v. N.Y. (1925), U.S. v. Schwimmer (1928), and Olmstead v. U.S. (1928). These cases dealt with what he called the "free trade in ideas."

But here again his position was not an absolute one. Even in this crucial area of intellectual freedom, Holmes did not always dissent. As in other instances involving social legislation, so also in matters affecting freedom of speech he sometimes sided with the majority. This was particularly true in cases involving the national security, where the Civil War veteran took a high patriotic position. In such notable cases as Schenck v. U.S. (1919) and, as noted, Debs v. U.S., both upholding limitations on freedom of speech in wartime, Holmes not only concurred with the majority but wrote the opinion for the Court.

The Schenck case concerned the general secretary of the Socialist Party, who was jailed under the Espionage Act of 1917 for sending through the mails, particularly to the armed forces, pacifist leaflets. The Supreme Court upheld the conviction. In handing down the opinion, Holmes formulated the famous "clear and present danger" doctrine as a test of free speech. He took the position that freedom of speech was not an absolute value, good at all times and at all places, but a relative one. His argument in Schenck v. U.S. was that speech was not being prohibited because the ideas involved were inherently undesirable, but because under certain circumstances—opposing recruitment and spreading demoralization among the troops in wartime, for example—words could endanger the war effort. What Holmes was saying in effect was that Schenck and other defendants similarly situated should remain in jail, not because they advocated pacifism and socialism but because they did so at the wrong time. "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight." In other words, the test of freedom of speech was not its substance but its circumstance. He wrote in the Schenck case:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights [under the First Amendment]. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

To a philosopher like Holmes, it must have been evident that the "clear and present danger" doctrine that justified limitation on freedom of speech was neither clear nor adequate. It could serve a momentary purpose, under pressures of war, but it was not sufficient to stand by itself as a doctrine governing man's rights and responsibilities in a free society. Moreover, the "clear and present danger" argument came perilously close to agreeing with the ultraconservatives and antidemocrats who have always held that freedom of speech was all right in its way, but not in a crisis. This was a manifest absurdity, and it would be surprising if Holmes was not troubled by it. For if freedom of speech had any meaning at all, it meant freedom to speak when it was unpopular to do so, precisely because it was unpopular. Obviously there is no problem when everybody agrees with everybody. Holmes himself said in the Schwimmer case (1928) that the principle of free thought meant "not free thought for those who agree with us but freedom for the thought that we hate."

It was this principle that Holmes developed in Abrams v. U.S. (1919), which followed hard on that of Schenck, and subsequent free-speech cases. His dissent in the Abrams case sounded as if he regretted his decision in Schenck; it was a complete reversal of his position. Just as he agreed with the majority that Schenck was guilty of distributing leaflets, so he disagreed with his colleagues that Abrams was guilty for doing almost precisely the same thing at approximately the same time. Jacob Abrams had thrown down from a loft in New York City leaflets urging that workers refuse to produce arms that were to be used for intervention in the Russian Revolution. Under the Espionage Act this was considered an "intent" to curtail or cripple the prosecution of the war, and Abrams was sentenced to twenty years in prison. The Supreme Court, with Justices Holmes and Brandeis dissenting, upheld the conviction. Technically, Holmes' dissent revolved around the meaning of the word intent. He did not regard Abrams' intent incitement enough to cause a direct limitation of war production. "Nobody can suppose," Holmes wrote, "that the surreptitious publishing of a silly leaflet by an unknown man . . . would present an immediate danger that its opinions would hinder the success of the government arms."

But Holmes went beyond the technicalities. He took the opportunity to explore the inner meaning of free speech, especially in a crisis, something he had failed to do in the Schenck case. Apart from intent, what was the real question in the Abrams case? It was, Holmes asserted, the right under the Constitution to express ideas and beliefs, no matter how silly, provided they were honestly held. He considered Abrams' socialist faith a "creed of ignorance and immaturity," but this was no excuse whatever for the government to punish him for his opinions. Like Voltaire and Jefferson before him, Holmes now elucidated the principles of free opinion in timeless terms. He rooted them in the Constitution as being integral to its whole spirit. The words, in the Abrams case, stand as a monument to intellectual freedom:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas,—that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . That, at any rate, is the theory of our Constitution. 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.

Note the similarity to Jefferson. In his Notes on the State of Virginia (1785) Jefferson had written: "Reason and free inquiry are the only effectual agents against error. . . . They are the natural enemies of error, and of error only. . . . It is error alone which needs the support of government. Truth can stand by itself."

Holmes concluded this dissenting opinion by saying that he regretted he could not "put into more impressive words" this belief that in their conviction . . . the defendants [in the Abrams case] were deprived of their rights under the Constitution of the United States."

In the Gitlow and Schwimmer cases, Holmes continued and elaborated his reasoned defense of free expression. Benjamin Gitlow was convicted for publishing a revolutionary pamphlet. The Supreme Court upheld the sentence mainly on the ground that the Marxist pamphlet was a "direct incitement" to revolution. Holmes pointed out that his Schenck case criterion of "clear and present danger" did not apply to Gitlow, that the defendant's "redundant discourse" had little chance of starting a radical conflagration, and that there was no current danger of an attempt to overthrow the government by a small minority like that. In the absence of any such peril to the nation, Holmes could see no justification for punishing Gitlow for his opinions. Under the Constitution and in the free market place of ideas, Gitlow had a right to offer his opinions, even though they were inflammatory:

It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it. . . the only meaning of free speech is that they [beliefs] should be given their chance and have their way.

In the Schwimmer and Olmstead cases, both in 1928, Holmes extended his championship of freedom to include the advocacy of pacifism and the rejection of government-approved wiretapping. Rosika Schwimmer had had her application for citizenship rejected on the ground that she had been a pacifist. In his dissent, Holmes [Chief Justice Charles Evans Hughes, and Justices Brandeis and Stone also dissented] attacked the Court's decision on two main grounds: that her belief in pacifism was neither dangerous nor silly, and that even if it were both, she still had a right under the Constitution to voice it. "She is an optimist," Holmes wrote, "and states . . . her belief that war will disappear. . . . I do not share that optimism." But it was absurd to assume that hatred of war would not make her a good citizen. In the Olmstead case, which involved the tapping of a bootlegger's wire by federal agents to prove his violation of the prohibition laws, Holmes disagreed with the majority that such a procedure was lawful or constitutional. Wiretapping, he held, was a violation of the Fourth and Fifth amendments, and as such, was a "dirty business." Evidence illegally obtained was a "criminal act." There was no justification for its use by the government, even for the apprehension of criminals. "We have to choose," Holmes wrote in his dissent, "and for my part I think it less evil that some criminals should escape than that the government should play an ignoble part."

Such was the over-all pattern of Holmes' thought. He was an unflinching realist, acutely aware of the relativity of values, moved by no dogmas, pursuing what he conceived to be the truth with an overpowering sense of philosophic humility. In human affairs, he took the long, detached view. But despite his Olympian aloofness, he could be stirred. When Alvin Johnson, in 1933, organized a committee to rescue European scholars driven out by Hitler, Felix Frankfurter asked Justice Holmes to be a sponsor. To Frankfurter's surprise, the Judge, then in his ninety-second year, eagerly accepted, saying: "I have never joined anything to promote a cause. This is different. Nothing less is involved than the history of civilization."

Holmes displayed a tolerant regard for the human mind, no matter what its direction. Without necessarily respecting the content of other people's ideas or convictions, he nevertheless championed their right to voice them. "With effervescing opinions as with the not yet forgotten champagnes," he wrote to the Harvard Liberal Club in 1920, "the quickest way to let them get flat is to let them get exposed to the air." He was in favor of what he called the "aeration" of ideas.

Holmes' greatness as a judge and jurist lies in this: Even in dissents, he spoke from the awe-inspiring platform of the Supreme Court in defense of the most crucial of all public values—freedom of the mind. The ideas embodied in his opinions and dissents became the intellectual property of his countrymen and ultimately even their laws. The skeptical Great Dissenter, in precisely that role, was the conscience of America, perhaps despite himself.

Francis Biddle (essay date 1961)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 7722

SOURCE: "The Attacks on Justice Holmes," in Justice Holmes, Natural Law, and the Supreme Court, The Macmillan Company, 1961, pp. 27-49.

[In the following essay, Biddle discusses the reaction of many priests at Jesuit law schools against Holmes after Holmes's letters were published posthumously.]

The attacks on Justice Holmes were stirred into life by the publication of his letters a few years after his death—there was hardly enough in the opinions and speeches to shock the well-bred ear of the average man; and the priests, who wrote most of the criticism, must have spent many hours combing the letters to sustain their view that here was a modern antichrist worthy of their mettle. The Justice's admirers came to his defense, but only here and there, and with dignity and caution, as if the charges were not worth answering, and it was simply a matter of misunderstanding their hero. It would be pointless, however, to get into this battle of words in the law journals, in itself hardly an engrossing subject, were it not for the fact that it represents not merely misunderstanding, but two points of view about the law and the proper approach to its application that are fundamentally opposed, and touch the roots of its life.

The first letters published (in 1936) were to John C. H. Wu, a young Chinese student with a solemn philosophic bent, who would later be a judge of the Shanghai Provisional Court. The letters to Sir Frederick Pollock—the English scholar descended from David Pollock, a saddler to George III, whom Holmes called "one of the very most learned men I ever saw in any age"—appeared in 1941, the correspondence covering a friendship that lasted for almost sixty years. Finally came the letters to Harold Laski (1916 to 1935), an obscure, frail young Englishman, instructor in government at Harvard, who was taken by Felix Frankfurter, then teaching at the Harvard Law School, to see Holmes at Beverly Farms in the summer of 1916.

Holmes's correspondence was enormous—many of his letters are still unpublished—he wrote everything in longhand, and he spent as much pains on his letters as he did on his opinions, and short occasional addresses to a group of veterans or a meeting of the bar. I would not deny that he had an eye cocked for posterity, particularly in the letters; but the chief reason for his concentrated and minute exertions was his lifelong habit of reaching for perfection, not unrelated to his deeply ingrained way of never laying down a book he had begun—if you start something you must finish it. It was therefore like him to exclaim, "How one hates a book while one is reading it!"

Holmes's letters to Pollock are more restrained, more sober than what he wrote Laski, and display more legal scholarship, as if to show his friend that since he became a judge he had not given up reading what was being said about the nature and sources of law. The letters to Laski carry the wit and insight and charm of his talk; Laski is indiscreet—and brilliant. Everything about Holmes is there; and one feels that the younger man's broad culture and omnivorous reading, even allowing for his boasts about it—"I can't believe that you read all the books you mention," Holmes bursts out, he couldn't swallow books like oysters—and the fact that Laski's point of view was teasingly alien to the Justice's challenged him to do his utmost in the long-drawn intellectual duel.

Holmes said what he liked in the letters—he must have sometimes felt penned in among his brethren in Washington—which range over a broad field of life and law, of literature and philosophy, of the beliefs and doubts of men. They are written with lucidity and concision, without consciousness of the need to exercise discretion which the opinions and public talks necessarily imposed. Of course he repeats himself; and the repetitions show how little the ideas he held most closely, the "can't helps," as he called them, changed over the years. I don't mean to say that these beliefs could not have been found in the opinions and his occasional addresses; but they lack the atmosphere of casual ease in which friends indulge when they do not fear being quoted, at least until the lapse of time takes from their talk the sting of the contemporary. Holmes must have felt a boyish pleasure of indulging in expressions, which, particularly to the canonical, were more shocking than the ideas which they were intended to convey.

Following the upheaval of a great war, or of profound economic and scientific changes, traditions break down and the truths of yesterday are no longer accepted; men look for spiritual guidance outside their own limited experience, and grasp at religion to reestablish their sense of direction. Today is such a time. Side by side with the present mood of violence and despair there is a reaction against cynicism, a demand for the comfort of the mystical, a desire to be reassured and to be instructed. "The insecurities of our age today," Reinhold Niebuhr has observed, "strongly tempt this generation, not to the utopianism of yesterday but to flight into any kind of storm cellar of religious security, whether this be Biblicism . . . or emphasis on the uniqueness of the church." It is not surprising, therefore, that natural law—which in the past has promised so much—has had a revival in the Catholic law schools, somewhat doctrinaire, in an endeavor to clarify and to justify its tenets.

Among those who drew their moral sustenance from natural law, Holmes's reputation must have suffered under the assaults of certain Roman Catholic priests teaching in Jesuit law schools, whose charges I shall presently examine. I do not believe that their extreme views and lack of restraint in the manner of expressing them represent the thought of Jesuits as a body, many of them enlightened legal scholars. Though of course they accept the principles of natural law, these principles do not differ greatly from the ethical concepts of Protestants, or of members of other denominations, or of men of good will who happen to be freethinkers. One does not have to be a cleric to be an upright man, and most thoughtful lawyers talk the same language. Yet several of my friends, who are prominent Catholic lawyers and judges, and whose opinions and views I respect, have gathered the impression from reading the law-review articles that we shall consider, that Holmes was a cynic, who thought of law as nothing but the application of force; that he believed that morals, basically conceived, were but the expression of individual taste, and had nothing to do with law; and that he held that the proper function of a judge was to carry out what the majority had already decided, whether it was right or wrong.

I do not think that Holmes's ultimate place in history, or the tradition that has grown up around the nation's memory of him as an heroic and noble figure, will be affected by these onslaughts, sometimes highly personal and ungoverned. Yet it seems to me appropriate to meet them—they have not, I think, been adequately answered outside law-school journals. That I loved and admired Justice Holmes makes it difficult for me to resist this opportunity to talk about him and his detractors. But this is not merely a matter of coming to the defense of a great man whom little men are trying to pull down. Holmes's contribution to law—his insistence on examining objectively the facts which explain its life and its direction—involves keeping open the doors of the mind in a world which increasingly, I feel, is closing about us. The attacks are leveled against the emancipation of law from superstition—a task to which everything in Holmes was dedicated.

I do not propose to define natural law, or to discuss its often contradictory tenets. But it is essential to know in the most general way some of the claims of natural law which the critics of Justice Holmes had in mind in order to understand why he rejected them, and the reasons he was attacked for doing so. This rejection, as we have seen, was leveled at all moral absolutes, particularly if they were confused with law.

There have been many schools of natural law, which is speculative and dogmatic, and its range has been used to cover the whole field of morals. It is said, for instance, that the International Military Tribunal at Nuremberg applied natural law. It did not; but punished what the charter, under which it operated, designated as crimes against humanity. It may be replied that this reference was itself taken from natural law; but that is true only in the most general sense. The phrase was an expression of the reaction of the conscience of the community against evils which seemed so shocking that they must be considered "crimes." That is the way in which the common law of crime largely developed, and many early crimes were not spelled out in any statute, or in the decree of a sovereign. Like the doctrine of equity, natural law has had marked influence on English common law, although it is not the same as common law, and has never absorbed it.

Since the substance of natural law is a statement of what is thought to be moral, it is not surprising to find it invoked on both sides when controversy arises. In our Declaration of Independence the assertion that all men are endowed by their Creator with certain unalienable rights is drawn from natural law; yet such a ringing and noble expression of faith did not prevent Americans from writing slavery into their Constitution; or Southerners from claiming in the Civil War that slavery was sanctified by the laws of nature. Albert Dicey, the English scholar, said of natural law that it had often been a name for the dictates of expediency. It has noticeably influenced American thinking, and many of its pronouncements are indistinguishable from the democratic outlook of normal Americans. Generally speaking it is today not thought of as a church doctrine but as the assertion of certain general rights to be taken for granted: men have a right to liberty; they have a right to happiness; they have a right to fair trial. Some hold that men are born with these rights; others that God gives them to men. Few pause to ask who enforces the rights, and how, and whether rights that cannot be enforced are in fact inalienable.

Often, natural law is spoken of as that body of moral behavior practiced in the community by men of good will over a long period of years, so that it has come to be universally accepted as a broad canon of decencies on which most men agree. Again, where such generality is assumed, awkward questions are forgotten or overlooked. Does natural law exist in a civilization dominated by Communist dogma? If not, was it ended at a certain time and place, or does it still hover, as it were, "a brooding omnipresence in the sky"—to use Holmes's apt phrase—which will descend to earth when the time is ripe; or is there a natural law of Communism which has its own set of dogmatic absolutes? Such questions are by no means irrelevant, as the kind of natural law espoused by the Roman Catholic Church claims that its precepts are universal and eternal.

The concentrated criticism of Holmes began in 1941 when the Reverend Francis E. Lucey, S.J., a writer who theretofore had been, comparatively speaking, unknown, published an article in Social Science called "Jurisprudence and the Future Social Order." Other priests joined in the attack, chiefly in the legal periodicals of the Catholic law schools, but Father Lucey was in the front ranks, continually coming back to do battle, distinguished from his associates by his intemperate language, the increasing length of each article, and his admirable collection of Holmes's aphorisms, largely drawn from the letters, to prove his points. Father John C. Ford, S.J., in the same year addressed the annual convention of the Jesuit Philosophical Association on "The Fundamentals of Holmes' Juristic Philosophy." A month later the Reverend William J. Kenealy, S.J., Dean of the Boston College Law School, at the celebration of the Red Mass in that city, using for the title of his pronouncements "The Majesty of the Law," indicated his conviction that the alien philosophies of Kant, Hume, Herbert Spencer, John Stuart Mill, Hobbes, Marx, and now Holmes were "cutting away at the foundations of American jurisprudence," and might "topple the superstructure which we are proud and happy to call our American Way of Life." It is not inaccurate to suggest that Father Kenealy's exhortations were more rhetorical than lucid.

There were other, similar attacks, and a debate in the American Bar Association Journal, which stirred up a lively controversy among lawyers for a brief moment of time. Fred Rodell of the Yale Law School, and Mark Howe of Harvard, wrote law-review articles contrasting Holmes's views with those of the Jesuits, which drew blood from Father Lucey, for he rushed back to the attack—he did not think much of these two professors, though Rodell was "not quite as smooth and snide as Howe."

The charges against Holmes are about the same in all the articles and addresses: he was a skeptic and cynic who believed in no God and had no principles; he considered that law was nothing but the use of force, and that might makes right; he discarded all absolutes, including natural law, and defined truth as the vote of the majority; and he described morals as nothing but a curb on the normal human inclination to get your feet in the trough.

As I suggested, Holmes's skepticism was by no means complete, but was balanced and humanized by a sturdy belief in the things he cared about. He shared with other men of his time acceptance of the ordinary decencies—courage, abstinence, truth, a sane mind in a healthy body, honesty, and loyalty. These did not differ in any marked degree from those which these priests acknowledged. But Holmes would not call them eternal because he was a philosophic as well as a religious skeptic. His detractors could not concede that anyone who rejected God could be a good man.

Nor did Holmes hold that the essence of law was physical force, as Father Ford asserted, trying hard to understand this terrifying unbeliever whom he could not help admiring; and Father Ford had no grounds for surmising that from this it followed that Holmes believed that might makes right. What Holmes did say—and repeated in various ways—was that law was a statement of the circumstances in which the public force will be brought to bear upon men through the courts. On reflection Father Ford might have accepted such a statement as a commonplace. When Holmes talked of law he always meant the same thing—the law that lawyers practice and judges declare, and from which human beings suffer; the law that permits a policeman to shoot an escaping felon, or a sheriff to manacle a kidnaper, or a judge to send a man to jail for refusing to testify. And in that sense law—what we call positive law—is based on force, and can hardly be said to exist unless it can be enforced. To Holmes law, like sovereignty, was a fact. The only external limit that he could see to the power of the lawmaker was the limit of power as a question of fact. This had nothing to do with the difficulty of finding out who the sovereign was, or the tacitly recognized de facto limits of the power of the most absolute sovereign (or state) that ever was. So when he talked of law he talked like a cynic. He didn't "care a damn if twenty professors" told him that a decision was not law if he knew that the courts would enforce it. When he spoke of the lawmaking power he meant concurrence of all the necessary organs of government in putting an enactment into execution.

Holmes was not talking about Father Ford's absolutes, floating somewhere as ideals in men's minds, essences of what law should be (but hardly ever is). So Holmes said—and Father Ford held up his hands—"Just so far as the aid of the public force is given a man, he has a legal right, and this right is the same whether his claim is founded in righteousness or iniquity." Is not this carefully exact? Holmes is not discussing the problem of what makes law, or inspires it, or influences its direction, or what it should be; he is telling us in hard, clear, definite language what it is: "Law being a practical thing, must found itself on actual forces."

Father Ford had been brought up, theologically speaking, on St. Thomas Aquinas and his doctrine that all law is based on natural law implanted by God in man. But he would not, I take it, have denied that force had its place in the enforcement of law, and that it must often be used to make law effective. Yet he would not admit that you could build law on the use of force to the exclusion of everything else, as he supposed Holmes did, an anti-Christian idea that seemed to dismiss morals from law, and narrow it to brute force. But Justice Holmes's observation about force was a description of what he saw happen. It was not an attempt to exhaust the definition of law or to reduce it to a single formula. No one who had read The Common Law with understanding, or studied Holmes's contribution to law over half a century, could possibly have made the foolish mistake of believing that Holmes meant to banish other conceptions of law by this particular criterion. To him law involved many other attributes—it was an expression of life, the formulation of community desires, the act of a legislature or the decree of a sovereign, the intuition or prejudice of a judge written into an opinion; but—and he thought it vitally important to keep repeating the idea in the striking form of an oversimplification—all law rested on the exercise of force for its fulfillment.

Father Ford, trembling a little as he tries to hold his spear in place, takes the next step: if law is based on force no law can be absolute, and what Holmes called rights are not fundamental or eternal, since they rest on the ephemeral and temporary quality of force.

By definition Holmes uses the word right in the narrow legal sense as something that can be enforced, not in the secondary and more ambiguous meaning of a desirable end, such as the pursuit of happiness, an activity to which men may believe they are entitled but which cannot be achieved through a court of law.

The children at Little Rock did not enjoy their right to go to a public school until United States troops saw to it that the right was enforced. When by statute the Nazi regime destroyed the right of the German-Jewish population to live where they pleased, to own their own property, to come and go freely, to marry Gentiles—in a word to enjoy the common decencies of tolerance and equality of living won for human beings over the long centuries—Jews no longer enjoyed rights in the Holmesian sense. That they existed undiminished in Father Ford's head (or heart), or in that distant Heaven where Jews take their place with Christians and Mohammedans, since natural law is universal; or in the mind of God, since natural law came from Him—assuming all these subjective absolutes of religion, which may be peculiarly important to those who have been deprived of the enforcement of their legal rights on earth, can it be doubted that Father Ford would have admitted that there is such a thing as an enforceable legal right? And the Justice would have answered that that was all he meant; and that those were the only kind of rights he was talking about. His own views were "simple and brutal" when he considered legal rights.

But Holmes knew that even though a sovereign does create legal rights, and makes you obey them, he is often hopelessly wrong morally. Holmes did not dismiss human aspirations, and remembered that they embodied principles that men had died for, and that it was well not to forget, the "right"—particularly for him—to think and talk freely. He believed in the articulation of these rights, but was not prepared to say that they were eternal. He lamented the tendency "toward underrating or forgetting the safeguards in bills of rights that had to be fought for in their day and that still are worth fighting for." What he understood by human rights was what a given crowd would fight for successfully. Old Louis Agassiz, he remembered, once said that in some part of Germany if you added a farthing to the price of a glass of beer there would be a revolution. If that was true, to have beer at the current price was one of the rights of man in that place.

Father Ford can have his absolute law, Holmes would say, if he keeps within his jurisdiction, the imagination of the faithful, and does not trespass on Caesar's sterner magistracy, where courts apply the rules that govern men. And that is what Holmes said in a dozen different ways, some of which Father Ford finds pretty hard to understand, as indeed they are.

Holmes's tight condensations—there is hardly ever an extra word to ease the understanding—do not tend to clarify his basic meaning. He liked to say that he wrote for the one man who did understand—but sometimes Holmes missed him.

Father Ford bravely tackles the Justice's famous statement in his article on Natural Law, which has proved the target for so many shafts: "But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space." Even Sir Frederick balked a bit at this—the word "hypostasis" was known to him only as a theological term—in what sense did Holmes use it? To start his definition of law, Holmes replied, he employed the word in the sense in which it is used by the modern lawyer, as a statement of the circumstances in which the public force would be brought to bear upon men through the courts: that is the prophecy in general terms. "So we prophesy that the earth and sun will act towards each other in a certain way. Then we pretend to account for that mode of action by the hypothetical cause, the force of gravitation, which is merely the hypostasis of the prophesied fact and an empty phrase. So we get up the empty substratum, a right, to pretend to account for the fact that the courts will act in a certain way." And this applied even to a right which Father Ford regards as absolute and God-given. Holmes added, almost as if he were trying to be doubly offensive: "I think our morally tinted words have caused a great deal of confused thinking." But Father Ford makes no comment, after quoting this passage, but merely adds that Pollock agreed with Holmes about right, an ambiguous word meaning an expectation that the court would assist you, in case of interference with certain of your lawful liberties, or that you could call on the court for redress of some form. Apparently Sir Frederick was highly respectable company!

What did morally tinted mean? Father Ford, pondering, and putting all these assertions together, concluded that Holmes divorced the ethical from the legal order. That is an accurate reflection; but the priest went on to add that Holmes denied any relation between law and morals. Apparently Father Ford had either not read Holmes or not understood what he was talking about. The Justice invariably assumed the relationship of morals and law, insisting, as I have noted, that the prevalent moral and political theories have had their part in determining the rules whereby men are governed. He did not wish his hearers to misinterpret what he had to say about force as the language of cynicism: "The law is the witness and the external deposit of our moral life. Its history is the history of the moral development of the race."

As a lawyer, Holmes used the word "theories"; Father Ford, a priest, spoke of "principles." Holmes, unlike Father Ford, never experienced an absolute. He called his preferences "prejudices" because as an historian he realized how the "prejudices which judges share with their fellow-men" had shaped the rules of law, and he had watched those of some of the other justices on the Court on which he sat prevent them from upholding laws which interfered with the dogma of laissez faire which they held sacred. Father Ford should have known what Holmes meant by morally tinted, for he quotes at length from Holmes's wonderful address, "The Path of the Law," at the dedication of a new hall of the Boston University School of Law in 1897.

If you want to know the law, and nothing else, Holmes had said, you must look only for its material consequences, which you can predict, like a "bad man," who cares only for results, not like a good one, who finds his reasons for conduct "in the vaguer sanctions of his conscience." The law is full of phraseology drawn from morals, and talks about rights and duties, malice, intent, and negligence—and nothing is easier in legal reasoning than to take these words in their moral sense. So we speak of the rights of a man meaning to mark the limits of interference with individual freedom prescribed by conscience, or by our ideal. Yet many laws have been passed and enforced which go beyond the limit of interference, and are condemned by the most enlightened public opinion. Therefore nothing but confusion can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.

If the training of lawyers, Holmes believed, led them habitually to consider more definitely and explicitly the social advantages on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions. And judges—"There is a tendency to think of judges," Holmes wrote Laski in 1926, "as if they were independent mouthpieces of the infinite, and not simply directors of a force that comes from the source that gives them their authority. I think our court has fallen into the error at times and it is that that I have aimed at when I have said that the Common Law is not a brooding omnipresence in the sky and that the U.S. is not subject to some mystic overlaw that it is bound to obey." To Holmes there was no such thing as the common law in abstracto.

And that is precisely how he thought of natural law—a mystic overlaw, not law in any true sense, theology or morals if you like, but not law. The demand for the superlative that we find in all men was at the bottom of the philosopher's effort to prove that truth was absolute, and of the jurist's search for criteria of universal validity which he collects under the head of natural law. That is why the jurists who believed in natural law seemed to him to be "in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere." To a Jesuit priest, reared on natural law, Holmes's view that it was but a product of wishful thinking must have sounded blasphemous.

The underlying difference between the views of Justice Holmes and the Jesuits boils down to whether or not you believe in absolutes; or, more accurately put, whether you think they have an existence of their own, outside the mind of man. Apparently natural law, for instance, in addition to existing in the mind of the Creator, and in the mind of man when he exercised his reason in order to find it, was conceived as something with a separate being of its own, irrespective of divine or human recognition. Holmes had never experienced it, and, not believing in revelations which he had not shared, denied its external validity. The unwillingness to accept less than being on the ground floor with God did not impress him much except as a fact of psychology. The assumption of a knowledge of ultimate truth implied a kind of arrogance that he distrusted. Why should we not be humble? Why not admit that the first primordial wiggle came before our time?

By no means a humble man himself, Holmes experienced humility when he thought of the universe, of which he was so minute a part. His comments were most caustic when he was dealing with those who were sure that they had universal truth by the ears. "I think the proper attitude," he wrote to Pollock, "is that we know nothing of cosmic values and bow our heads—seeing reason enough for doing all we can and not demanding the plan of campaign of the General. . . . It's enough for me that this universe can produce intelligence and ideals." He could not go along, he said in another letter, with "some mystical works of men seeking to lift themselves by the slack of their own breeches, and demanding that the final compulsions under which we reason, love, etc., should be admitted as of cosmic validity. I stop short of that. All I mean by truth is the road I can't help travelling. What the worth of that can't help may be I have no means of knowing. Perhaps the universe, if there is one, has no truth outside the finiteness of man." This position is not an extreme one. It does not exclude another's experience of faith, but implies it is not his—Holmes knows his own, but would not force it on anyone else.

He thought clericism childish, and at times was a little disturbed at exhibitions of ecclesiastic power. But he had such a conviction that it was doomed that he did not care to hurry its fate; and, ad interim, it helped to keep order. He also questioned the postulate of science that everything can be explained. He had a sense of the mystery of the universe, and thought it unlikely that we know anything about it or have faculties that fit us to do more than adjust ourselves to it and to live. He had faith in the prevalence of reason, but was aware how long reason may be kept under by what man wants to believe.

Such a point of view, it may be conceded, would not be popular among believers in the reality of eternal truth.

But all this is in the realm of speculation. The issue raised by the detractors of Holmes is sharper and more immediate than any found in the play of moral theorizing. Holmes never went out of his way to discuss natural law, except for the casual reference that I have described; or indeed, any other religion—systems, whether religious or philosophic, bored him. He had no particular objection to indulgence in their intricacies if they did not impinge on his own field of law. He did not agree with what Edmund Burke, whom he liked to quote, had said about law—that it sharpened the mind only to narrow it. To Holmes law was the reflection of man's life on earth; and, more particularly, the story of the experience of his own people, and was therefore worthy of the devotion of a lifetime. He had discovered that law was not the same as morals, which differed from creed to creed, and that it was highly dangerous to try to preserve it in the form of a moral absolute—for life kept changing and absolutes did not. He had seen men clothe their predilections in the generalities of ideals that had become standardized, and close their minds to an appropriate solution of the practical problem of decision that was before them.

That natural law is taught in Roman Catholic law schools as part of the education of a lawyer deflects him from the modern approach to law as a science, dragging theology back into law from which, as in the teaching of medicine and other professions, it had long since been banished, except in the Catholic schools. Only Catholic law schools teach that natural law has a higher and more august sanction man human law; that laws in contravention of natural law are invalid; and that any statute or decision conflicting with natural law is inherently vitiated. In other schools "law" is not taught as being eternal, and could not be, for the modern lawyer, pragmatic and scientific as far as possible in his approach, has learned to keep his law and religion apart. It is to this separation that the Catholic teachers object.

The Catholic doctrine—fundamentally inconsistent with separation of Church and State—goes much further than the concept that, in determining whether he should resist a particular law thought to be evil a man should bide by the dictates of his conscience, since it insists that he must obey the dictates of his Church, irrespective of the expressed will of his sovereign. To the Catholic, natural law is what the Church says it is.

This potential conflict is, however, more startling in theory than in practice, for a theorem of the Church holds that although the basic tenets of natural law never change, their application varies. Thus right to a fair trial is said to be basic, unchangeable, a law of God and of nature; but a particular application of this general right, such as the right to trial by a jury, is not a natural law right, and therefore not absolute, and may be given or withdrawn by the State. One is eternal, the other temporary. Since questions of law arise on specific issues, and not over the discussion of principles, there is in practice little conflict between natural law and the law of the sovereign.

But the effect of such a doctrine on the development of law is important. Even if now for practical purposes there is little conflict—although for hundreds of years the struggle for temporal power between Church and State was savage and continuous—the suggestion that there is a higher lawgiving power than the State postulates the theological approach. This way of looking at law is against everything that Holmes stood for.

Father Lucey, coming back to the attack, in an article which he called "Holmes—Liberal—Humanitarian—Believer in Democracy?" admitted that once upon a time he had been charmed by the Justice's style and the "end results of his opinions involving personal liberties," but later had an uneasy feeling that there was something wrong with his idol. For the next few years he read and reread everything that Holmes had written. And what did he find? "A philosophical skeleton of life and law, of man and morals that was horribly deformed."

This language, like Father Kenealy's, partakes of the rhetorical; but in spite of its ineptness we do get a sense that Father Lucey was upset. He insisted that skepticism, pragmatism, and evolution were the influences which inevitably led to Holmes's position. Holmes would not have liked to be called a pragmatist, for the word indicated a philosophy which he thought ridiculous, so that when Laski spoke of "the implicit pragmatism" of Holmes's attitude, the Justice answered that the judging of law by its efforts and results did not have to wait for William James or Roscoe Pound for its existence.

But skepticism and pragmatism were characteristic of the age in which the father had been reared, and against which his Church, knowing the disastrous fashion in which indulgence in such heresies endangered her own authority, had continually thundered. Therefore to find these influences displayed by still another great man could hardly account for the father's choler. I suspect that what really shocked the priest was Holmes's language rather than his views. As the old song goes, It wasn't so much as what he said as the orful way he said it! Father Lucey may have remembered, although he did not quote it, what Holmes said about the martyr—that he was a pigheaded adherent of an inadequate idea.

Holmes opened himself widely to criticism. In spite of the fact that he distrusted sweeping statements, and all his life resisted their pressure, he could, for the sake of a telling bon mot or neat aphorism, let out the most absurd generalities, worded as if they were self-evident truths, as when he said to Laski that "all law means I will kill you if necessary to make you conform to my requirements." Sometimes he goes on to explain what he means—law, he adds here, is what the sovereign orders: "If in fact Catholics or atheists are proscribed and the screws put on, it seems to me idle to say that it is not law because by a theory that you and I hold . . . it ought not to be." He keeps coming back to the idea that men either agreed or fought: "When men differ in taste as to the kind of world they want the only thing to do is to go to work killing."

It was all right if you did not take Holmes literally, did not go along with the inclusive sweep of his oversimplifications. His theory that law was nothing more than the prophecy of what the judge would hold, was useful for the counseling lawyer—for the solicitor—but not for the trial lawyer bent on persuading the court, the barrister: law is of course something more than prophecy.

In his article on natural law Holmes remarked that he used to say, when he was young, that truth was the majority vote of that nation that could lick all others. Father Lucey comments eloquently: "This of course was Hitler's test. . . the theme song of the Storm Troops as they made their pragmatic functional approach to Poland, Czechoslovakia, Norway, Holland, Belgium, and France." But the father did not mention that Holmes went on to explain the sense in which he had made the remark: "Certainly we may expect that the received opinion about the present war [the First World War] will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct in so far as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view." This was not unlike Mr. Dooley's line about the Supreme Court's following the elections—neither was the whole truth and nothing but the truth, but each had a core of meaning.

Holmes had written Pollock that when one thinks coldly he could see no reason for attributing to man a significance different in kind (he did not say in degree) from that which belongs to a baboon or to a grain of sand. Father Lucey seized on the phrase but lost its point: "Stripped of a soul and innate dignity," he lamented, "man is only as significant as a baboon or grain of sand." What Holmes meant was that since the universe was without guidance, there was no one to assert differences or draw comparisons. Holmes would not have admitted that there was no difference between himself and Father Lucey, or between Father Lucey and a baboon. He meant only that, cosmically speaking, the universe did not make the distinction. Father Lucey, one would have thought, would have hesitated to speak about what went on inside the complex and subtle mind which he called Holmes's world, and to say that for Holmes there were no values inside the law or outside it. Holmes's values were as precious to him as Father Lucey's; but no man as dogmatic as Father Lucey could ever admit that a freethinker could have a creed that was noble.

Twenty years later Holmes wrote along similar lines to Pollock that a platitude had come home to him with quasi-religious force. He had been repining at the thought of his slow progress—how few ideas he had or had picked up—when it occurred to him to think of the total of life, and how the greater part was wholly absorbed in living and continuing life—victuals, procreation, rest, and eternal terror. Why not accept the common lot? An adequate vitality would say: "God—what a good sleep I've had." "My eye, that was a dinner." "Now for a rattling walk." Functioning is all there is—only, our keenest pleasure is what we call the higher sort. "I wonder," he finished, "if cosmically an idea is any more important than the bowels." The bowels! No wonder Father Lucey called Holmes "an animal man"—a designation which would have mightily pleased our Judge—and added that Holmes's concept of democracy embodied "a strong jungle odor."

One accusation Father Lucey made that might have angered Holmes—a patently unfair charge—was that if "the law on the books clashed with Holmes's evolutionary theory Holmes could stretch the law and try to work off his theory." Holmes spent his life keeping his own preferences and theories out of his opinions. It was a small and mean observation, and Father Lucey made no attempt to support it by citing any decision. Now and then the father becomes personal, sneering that Holmes spent his spare time with youngesters "whom he felt were the smart minds of their generation and the elite of the future." The priest must have had some individuals in mind, although he does not name them—Owen Wister, Justice Frankfurter, Walter Lippmann, Lord Eustace Percy?—they came to be numbered among the elite. Finally Father Lucey whips himself into a mild canonical frenzy, pelting "the Yankee from Olympus" (to use the father's words) with soft absolutes—skepticism, evolutionism, positivism, and pragmatism—that reduce men to "a pestilence-driven multitude, the prey of a blind evolutionary climate!"

This is no inconsequential battle, he cries, not only for Americans, but for the entire world. If universal agnosticism prevail it will mean the end of Democracy, because there can be no Democracy without protection of absolute natural rights. . . . Holmesian philosophy was infiltrating the public schools. Had not J. Edgar Hoover testified before the Kefauver Committee that we are in a moral depression, and added, as one of the reasons, that the name of God could not be mentioned in many of our schools? The Holmesian philosophy had reached the very summit—we find "the Chief Justice of the United States [Fred M. Vinson] proclaiming in an official document [Father Lucey means an opinion]: Nothing is more certain in modern society than the principle that there are no absolutes . . . all concepts are relative." But the father does not believe that the Chief Justice really realized the implications to which he was committing himself.

At times Father Lucey seems to be angry with what eludes him. But the difference between the two men is not principally a question of misunderstanding. It comes down to a determination of the sources of general principles. The Catholics say that they come from God, and have a validity entirely independent of their human acceptance. For Justice Holmes they are derived from the consensus of the community embodied in the long tradition of the law, of the dominant beliefs of the culture of which he felt himself a part, and of the Constitutional provisions expressing that culture.

Put simply, and without the paradoxes and teasing oversimplifications, Holmes's beliefs are neither radical—for our day and age—nor disturbing: the belief that men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite; that since morality is human in its origin and its end, men should be permitted to discover what is for them desirable and how it should be achieved, and allowed to indulge in their own legislative experiments to better their lot—they are not fools for doing what they want to do; that the justification of any rule of law is that it helps to bring about a desired social end; that law must change to follow the needs of man; that all doctrine must be adjusted to these needs; that the law when ascertained should be obeyed, but will not be ascertained by reference to vague generalities, or by fumbling over the familiar; and finally that we cannot think beyond the reach in time of our own society, so that the claim of a special code to respect is not that it represents first principles but simply that it exists and is the one to which we have become accustomed.

There can never be reconciliation between the dogmatic mind and the free mind. In spite of efforts to bridge the gap between those who cherish some Being outside their own world because they cannot bear the terror of standing alone, and men like Holmes who find their strength and faith within themselves, the chasm remains, and it is idle to deny its depth. The fanatic believer, who cannot view those who do not agree with him except as evil men, must never be tolerant, for tolerance might open the gates of understanding.

Edmund Wilson (essay date 1962)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 18012

SOURCE: "Justice Oliver Wendell Holmes," in Patriotic Gore: Studies in the Literature of the American Civil War, 1962. Reprint by Northeastern University Press, 1984, pp. 743-96.

[In the following essay, Wilson provides a biographical sketch of Holmes.]

With the Oliver Wendell Holmeses, father and son, the theology of Calvinism has faded, but its habits of mind persist. The father of Dr. Holmes was Abiel Holmes, a Connecticut preacher, who came to occupy in Cambridge, Massachusetts, the pulpit of the First Congregational Church. He had been educated at the Yale Divinity School, which at that time stood somewhat to the left of the fundamentalist Princeton Theological Seminary but still kept closer to Calvinist orthodoxy than the Harvard Divinity School, already infected in the twenties with the fashionable Unitarianism. Abiel Holmes was himself not severe in the matter of doctrine: he appears in the novels of his son in the characters of the Congregational ministers who are surreptitiously humanizing their creed. But he found himself, in his Cambridge church, between a new liberalizing party and the still powerful old orthodox Calvinists. Under pressure of an orthodox newspaper and especially, among the clergy, of Lyman Beecher, the father of Harriet Beecher Stowe, he abandoned the now common practice of exchanging Sunday pulpits with other Congregationalist ministers, regardless of their theological views. But his parish was attainted with liberalism and did not care to have Dr. Beecher, with whom Holmes had been led to exchange, assailing them from the pulpit with the menace that if they should yield to the Unitarian heresy, a "moral desolation" would "sweep over the land." Dr. Holmes in his novels made his kindly old ministers escape from the pressures of orthodoxy, but the contrary had been true in the case of his father, who barred liberal preachers from his pulpit and was forced to resign by his congregation and to set up a Second Congregational Church.

The effect of this on Abiel's son, at that time a student at Harvard, was to stir in him a strong opposition to the traditional Puritan theology, which he came to feel was wholly monstrous and a hindrance to human progress. He said that his whole conception of the place of man in the universe had been upset at some point in his childhood by seeing the planet Venus through a telescope. Through the study and practice of medicine, he tried to substitute the discipline of science for the discipline of the old morality. I have spoken of his One-Hoss Shay as a parable of the break-up of Calvinism; and his novels are intended to show that destructive or peculiar tendencies on the part of an individual are due not to Original Sin but to "prenatal influence" (at that time taken seriously even by the medical profession), special heredity or early trauma. The first of these novels, Elsie Venner, published in 1861, so outraged the Protestant clergy that one religious paper as far away as Chicago made a point of denouncing each instalment as the story came out in the Atlantic Monthly. Yet Holmes himself, as he tells us, was never to succeed completely in freeing himself from the Calvinist inculcations: he could never, to the end of his life, allow himself to read novels till sundown on the Sabbath, and there always went on in his mind a dialogue between the inherited doctrine and the new scientific point of view.

The young Wendell, who could start from the point to which his father had succeeded in advancing, was not troubled by these hauntings from the past and put the old New England God behind him—though, as we shall see, in his temperament and his type of mind, he was much closer to the Puritan breed than his father. He had read Herbert Spencer at Harvard and had incurred a rebuke from the President for answering back a professor who was teaching a course on the Evidences of Religion. But during his service in the Civil War, he was subjected to a desperate ordeal, which, instead of having the effect, as such ordeals sometimes do, of impelling him to turn to God, caused him definitely to dismiss this Deity. He had enlisted when he was only just twenty, in April, 1861, and he had been badly wounded in the chest at the Battle of Ball's Bluff in October. "I thought I was a gone coon," he wrote to Frederick Pollock long afterwards, and he was actually not expected to live. "I happened to have a bottle of laudanum in my pocket and resolved if the anguish became unbearable to do the needful. A doctor (I suppose) removed the bottle and in the morning I resolved to live." But in the meantime the crisis had occurred. Here is his own account of it, written down almost immediately afterwards, an effort at self-observation—very remarkable on the part of so young a man—which shows his courage and the strength of his intellect:

Much more vivid [than his recollection of what was actually happening] is my memory of my thoughts and state of mind for though I may have been light-headed my reason was working—even if through a cloud. Of course when I thought I was dying the reflection that the majority vote of the civilized world declared that with my opinions I was en route for Hell came up with painful distinctness—Perhaps the first impulse was tremulous—but then I said—by Jove, I die like a soldier anyhow—I was shot in the breast doing my duty up to the hub—afraid? No, I am proud—then I thought I couldn't be guilty of a deathbed recantation—father and I had talked of that and were agreed that it generally meant nothing but a cowardly giving way to fear—Besides, thought I, can I recant if I want to, has the approach of death changed my beliefs much? & to this I answered—No—Then came in my Philosophy—I am to take a leap in the dark—but now as ever I believe that whatever shall happen is best—for it is in accordance with a general law—and good & universal (or general law) are synonymous terms in the universe—(I can now add that our phrase good only means certain general truths seen through the heart & will instead of being merely contemplated intellectually—I doubt if the intellect accepts or recognizes that classification of good and bad). Would the complex forces which made a still more complex unit in Me resolve themselves back into simpler forms or would my angel be still winging his way onward when eternities had passed? I could not tell—But all was doubtless well—and so with a 'God forgive me if I'm wrong' I slept—But while I was debating with myself Harry Sturgis bulged upon the scene—I don't remember what I said—I know what I wanted—it was the cool opinion of an outsider—a lookeron—as a point d'appui for resistance or a πον στω from which to spring aloft, as the case might be; at any rate a foreign substance round which my thoughts could crystallize—Sturge I hear says I was very profane, to this effect—"Well Harry I'm dying but I'll be G. d'd if I know where I'm going"—But I doubt it although a little later I swore frightfully—to the great horror of John O'S. who tried to stop me thinking I was booking myself for Hell rapidly. Sturge thereat with about his usual tact, begun "Why—Homey—you believe in Christ, don't you" etc. with a brief exposition of doctrine argumentatively set forth—I gave him my love for Pen whom I'd not yet seen, & the same message home which I subsequently gave the Fire Zouave Surgeon and Sturge departed.

He had denied God and still survived, and that was the end of God in the cosmogony of Oliver Wendell Holmes, who was never again tempted to believe and who lived to be over ninety.

The young Holmes's experience of the Civil War, besides settling for him the problem of faith, also cured him, and cured him for life, of apocalyptic social illusions. Perhaps no one had enlisted at the beginning of the war with a more devoted ardor than Holmes. "It is almost impossible here," says Higginson in his Cheerful Yesterdays, "to reproduce the emotions of that period of early war enlistments. . . . To call it a sense of novelty was nothing; it was as if one had learned to swim in air, and were striking out for some new planet. All the methods, standards, habits, and aims of ordinary life were reversed, and the intrinsic and traditional charm of the soldier's life was mingled in my own case with the firm faith that the death-knell of slavery itself was being sounded." The memory of that early exaltation was to remain with Holmes all his life. He had been almost as much carried away by the novels of Walter Scott as any of his Southern contemporaries, and, as late as 1911 we find him writing to the Baroness Moncheur, wife of the Belgian ambassador: "Just now I am having one of my periodic wallows in Scott. He also is dear to most people, I suppose—but the old order in which the sword and the gentleman were beliefs, is near enough to me to make this their last voice enchanting in spite of the common sense of commerce. The same belief was what gave interest to the South, but they paid for it by their ignorance of all the ideas that make life worth living to us. But when you see it in costume, with people who could not have heard of evolution, belated but in its last and therefore articulate moment, Oh what a delight it is." This spirit of romantic chivalry he brought to the Abolitionist cause, by which he afterwards said he was "moved . . . so deeply that a Negro minstrel show shocked me and the morality of Pickwick seemed to me painfully blunt," and he had acted as a bodyguard to Wendell Phillips when there was a threat of his being mobbed at an anti-slavery meeting. He had left college in his senior year and forfeited graduation in order at once to enlist.

He thus accepted the war as a crusade, and, even in the April of 1864, when he had been through some of the worst of the fighting, he forced himself to continue to do so. "I have long wanted to know more of Joinville's Chronicle than I did," he writes to Charles Eliot Norton apropos of an article of his, "but the story seems to come up most opportunely now when we need all the examples of chivalry to help us bind our rebellious desires to steadfastness in the Christian Crusade of the 19th century. If one didn't believe that this was such a crusade, in the cause of the whole civilized world, it would be hard indeed to keep the hand to the sword; and one who is rather compelled unwillingly to the work by abstract conviction than borne along on the flood of some passionate enthusiasm, must feel his ardor rekindled by stories like this."

For this cause and in this crusade, the young Oliver Wendell Holmes, as we have already seen, had faced death at the very beginning: "It is curious," he wrote in the account of his wounding from which I have already quoted, "how rapidly the mind adjusts itself under some circumstances to entirely new relations—I thought for a while that I was dying, and it seemed the most natural thing in the world—the moment the hope of life returned it seemed as abhorrent to nature as ever that I should die." He went home on leave to recover, but returned to his regiment the following March (in the second year of the war). He was wounded again at Antietam in September: the bullet went through his neck and just missed his windpipe and jugular vein. He was shipped home again for six weeks; then, in the middle of November, was ordered back. He had a moment of extreme discouragement. From Virginia, three days later, he writes: " . . . with the crack brained Dreher & obstinate ignoramus Shepherd as act'g Col & Lt. Col. the Regt is going to H------L as fast as ever it can or at least no thanks to them if it isn't—I wouldn't trust it under them for a brass tuppence in a fight—They'd send it to the devil quicker even than Gen. Sumner and I've pretty much made up my mind that the South have achieved their independence & I am almost ready to hope spring will see an end—I prefer intervention to save our credit but believe me, we never shall lick 'em.—The Army is tired with its hard [work?], and its terrible experience & still more with its mismanagement & I think before long the majority will say that we are vainly working to effect what never happens—the subjugation (for that is it) of a great civilized nation. We shan't do it—at least the Army can't—" In December he writes to his father: " . . . —I never I believe have shown, as you seemed to hint, any wavering in my belief in the right of our cause—it is my disbelief in our success by arms in wh. I differ from you . . . —I think in that matter I have better chances of judging than you—and I believe I represent the conviction of the army—& not the least of the most intelligent part of it—The successes of wh. you spoke were to be anticipated as necessary if we entered into the struggle—But I see no farther progress—I don't think either of you realize the unity or the determination of the South. I think you are hopeful because (excuse me) you are ignorant. But if it is true that we represent civilization wh. is in its nature, as well as slavery, diffusive & aggressive, and if civ. & progress are the better things why they will conquer in the long run, we may be sure, and will stand a better chance in their proper province—peace—than in war, the brother of slavery—brother—it is slavery's parent, child and sustainer at once—At any rate dear Father don't because I say these things imply or think that I am the meaner for saying them—I am, to be sure, heartily tired and half worn out body and mind by this life, but I believe I am as ready as ever to do my duty—" He had dysentery that winter and was wounded in the heel at Fredericksburg on May 1 of the following year.

The young soldier now spent ten months at home; but he returned to the army again in January, 1864. He had become a lieutenant-colonel and was made aide-de-camp to Major General Horatio Wright, who was stationed above the Rapidan. In Wright's corps there were only the remnants of Holmes's Massachusetts Twentieth Regiment. The friends with whom he had graduated from Harvard, the officers he had fought beside, were mostly dead. Some thought that he himself was not fit to serve; but he went through the terrible battles of the Wilderness: Spottsylvania, North Anna, Cold Harbor. In May, he performed an exploit of which he was rather proud. He describes it as follows in a letter to his parents:

The afternoon of the 29th I had my narrowest escape—Dispatch to carry—important—don't spare y'r horse—gallop—1 mile—small boy (one well known as Col. Upton's scout) retreating at a run—reports fired at 2 reb. cavy—looked round for forces—one straggler (infty) one (unarmed) man on mule, one sick officer—& boy—I spy 4 of our cavy foraging dismiss former forces & order them with me—trot—when boy was shot at gallop—bend in road—woods cease—bang—bang—whiz—whiz—about 20 rebs in line—"Halt. Surrender" I pulled up & sung out "friends" deceived by number and darkness of their clothes—They keep on shooting then I saw & put in licks for straight ahead—Anon a fellow comes riding down the road—I think I'll gobble him—he to me "Halt Surrender" I see others on R. of road—he is unslinging his carbine as I get to him, I put my pistol to his breast & pull—enclosed cap snaps—then I run the gauntlet—bang—whiz—Halt—Surrender lying along the neck of my horse—Got my dispatch through & return in triumph to find myself given over for lost—

But in spite of a certain exuberance here, we have come a long way from the boyish exhibitionism of the days just before Ball's Bluff. His diaries and letters, both, become more and more confused and disjointed. The action is moving so fast that we hardly know where we are: yells and firing, shells bursting, brains spattering. The dead are piled in trenches at the edge of the wood, and the trees have been shot to splinters.

Before you get this, he writes to his parents on May 16, 1864, you will know how immense the butchers bill has been—And the labor has been incessant—I have not been & am not likely to be in the mood for writing details. I have kept brief notes in my diary wh. I hope you may see some day—Enough, that these nearly two weeks have contained all of fatigue & horror that war can furnish—The advantage has been on our side but nothing decisive has occurred & the enemy is in front of us strongly intrenched—I doubt if the decisive battle is to be fought between here and Richmond—nearly every Regimental off—I knew or cared for is dead or wounded—

I have made up my mind to stay on the staff if possible till the end of the campaign & then if I am alive, I shall resign—I have felt for sometime that I didn't any longer believe in this being a duty & so I mean to leave at the end of the campaign as I said if I'm not killed before.

He was later annoyed with his father—the natural annoyance of the man in the field with the immoderate belligerence of the people at home—for misunderstanding this letter. He had long ago, however, grown used to the slaughter. "It's odd," he had written fifteen months before, "how indifferent one gets to the sight of death—perhaps, because one gets aristocratic and don't value much a common life. Then they are apt to be so dirty it seems natural—'Dust to Dust'—I would do anything that lay in my power but it doesn't much affect my feelings." But he has just been through much of the worst of the war. He has constantly expected to be killed, and we gather that he wrote notes to his parents before he went into battle, and no doubt, as many soldiers at Cold Harbor did, pinned them onto his clothes. He seems to have destroyed them later when he was going over these papers. But in the meantime, he writes as follows: "recd y'r letters of 21d 22d the latter fr. dad, stupid—I wish you'd take the trouble to read my letters before answering—I am sure I cannot have conveyed the idea, rightfully, that I intended resigning before the campaign was over (i.e. next winter just near the end of my term of service)—then I probably shall for reasons satisfactory to myself—I must say I dislike such a misunderstanding, so discreditable to my feeling of soldierly honor, when I don't believe there was a necessity for it—I shall stay on the staff and wish you'd notify the Governor to commission new field officers to the 20th I waive promotion—I am convinced from my late experience that if I can stand the wear and tear (body & mind) of regimental duty that it is a greater strain on both than I am called on to endure—If I am satisfied I don't really see that anyone else has a call to be otherwise—I talked with Hayward the mentor of the Regt & told him my views on the matter—I am not the same man (may not have quite the same ideas) & certainly am not so elastic as I was and I will not acknowledge the same claims upon me under those circumstances that existed formerly—a day & a half have passed since I wrote last word—it is quarter to 12 between May 31 & June 1 I have just been riding through black woods after some HdQrs—and we are going to have another of those killing night marches as soon as we can start out of a country worse than the wilderness if possible—I have hardly known what a good night's sleep was since the campaign opened—constantly having, as tonight, to be up all night—" "I started in this thing a boy," he later—in June—wrote his parents. "I am now a man and I have been coming to the conclusion for the last six months that my duty has changed." In July he was mustered out: his three years' enlistment was over.

The conclusions to which Holmes had been brought under pressure of his service in the Civil War were to effect in fundamental ways the whole of his subsequent thinking. But his relation to the war was peculiar. He did not like to refight its battles; he did not care to read about it. Over and over to his correspondents, he reiterates this reluctance to revert to the years of the war, making exceptions only for Lord Charnwood's Lincoln and for John S. Mosby's memoirs, which had been sent him by "old Mosby," as he calls him, "the famous guerilla man on the Southern side." He even extends this disinclination to Thucydides, of which, when he gets around to it at the age of eighty-three, he writes to Sir Frederick Pollock: "It isn't the kind of thing I like to read—just as I hate to read of our Civil War." Nor is he concerned with the consequences of the war. By that summer of 1864, he had had quite enough of the army and was eager to embark on a learned career. He started in at Harvard Law School that autumn and graduated in 1866. By this time Lincoln was dead, and there had died with him any possibility of a clear and decent policy toward the South. The struggle had commenced in Congress which was to culminate in the attempt on the part of the Radical Republicans to drive President Andrew Johnson from office. During the years when Holmes was first practising law in Boston and editing the American Law Review, the exposures of the squalid scandals of the Grant administrations were being one after another exposed in the papers. But Holmes, who was later deliberately to make a practice of not reading the newspapers, seems already to have adopted the policy of dissociating himself from current events. An account of the impeachment of Andrew Johnson confines itself, says his biographer, Mr. Mark De Wolfe Howe, to the purely legal aspects of the trial without giving any intimation of approval or disapproval. Holmes was solely intent on his own success, a success for which he was quite prepared to pay any cost in effort it demanded.

The young Holmes had brought out of the war a tough character, purposive, disciplined and not a little hard, a clearly defined personality, of which his humor and affable manners, his air of being a man of the world and the ready susceptibility to feminine attraction which he sometimes a little paraded, ["Oh, to be eighty again!" he is said to have exclaimed at ninety when passing a pretty woman on the street.] could never quite embellish the bleakness. His concentration on his work, his grim industry, were astonishing to those who knew him at the time when his career was still to make. It was said of him by one friend that he knew more law than anybody else in Boston and by another that he, the friend, had "never known of anyone in the law who studied anything as hard as Wendell." He had been worried at first by a feeling that this profession was unrewarding and sterile. Like his father, he had always had a strong taste for literature and had even once thought of becoming a poet. A sonnet that he wrote in the army has a throb of the emotional power of which I have spoken above as redeeming in that period the verse of the amateur in contrast to the rhymed editorial. He was to speak of his early forebodings in regard to the career he had chosen in an address to a college audience in 1897: "There were few," he says, "of the charts and lights for which one longed when I began. One found oneself plunged in a thick fog of details—in a black and frozen night, in which were no flowers, no spring, no easy joys. Voices of authority warned that in the crush of that ice any craft might sink. One heard Burke saying that law sharpens the mind by narrowing it. One heard in Thackeray of a lawyer bending all the powers of a great mind to a mean profession. One saw that artists and poets shrank from it as from an alien world. One doubted oneself how it could be worthy of the interest of an intelligent mind. And yet one said to oneself, law is human—it is a part of man, and of one world with all the rest." And working hard and working uphill, stubborn tension of the will and the intellect, were natural, even necessary, for Holmes; they were a part of his Puritan heritage. He produced his great book The Common Law—in 1880, when he was thirty-nine—by dint of dogged application in the evenings. "I can assure you," he wrote his friend Pollock, "it takes courage and perseverance to keep at a task which has to be performed at night and after making one's living by day." He told a friend that he hoped by this book to supersede Blackstone and Kent and that he aimed to become, first, Chief Justice of the Supreme Court of Massachusetts, then Justice of the Supreme Court of the United States.

This ambition and his relentless pursuit of it were dismaying to some of his friends. A man who knew him well, James Bradley Thayer, a partner in the law firm for which Holmes first worked, said of him that, in spite of his "attractive qualities and solid merits," he was "wanting sadly in the noblest region of human character,—selfish, vain, thoughtless of others;" and one of his exsecretaries, not himself a New Englander, once said to me that Holmes had a streak of "the mean Yankee."

His relations with William and Henry James are, in this connection, particularly significant. Holmes and William, as young men, were extremely close. Holmes's mind was fundamentally philosophical, rather than either legal or literary, and they had discussed the great problems together; but Holmes, in his later years, when, in spite of his professions of skepticism, his negative convictions had become quite rigid, felt that James had gone rather soft, that he was giving in to religion and leaving a loop-hole for the supernatural. Their sympathies became more and more imperfect, and William James, in his letters to Henry, makes his own feelings almost ferociously clear: "The more I live in the world," he wrote in 1869, "the more the cold-blooded, conscious egotism and conceit of people afflict me. . . . All the noble qualities of Wendell Holmes, for instance, are poisoned by them, and friendly as I want to be towards him, as yet the good he has done me is more in presenting me something to kick away from or react against than to follow and embrace." And years later (1876), when he has been to visit the Holmeses at Mattapoisett, he writes Henry that Wendell "is a powerful battery, formed like a planing machine to gouge a deep self-beneficial groove through life; and his virtues and his faults," James adds, "were thrown into singular relief by the lone-someness of the shore, which as it makes every object, rock or shrub, stand out so vividly, seemed also to put him and his wife under a sort of lens for you. . . ."

In the case of Henry James, I have been told on good authority that when Holmes went to see him on his visits to England, he was in the habit rather brutally of baiting him on account of his expatriation, as if he were shrinking from the dust and heat of life in his native country; and it is evident from James's correspondence with Holmes that when the former revisited the United States in 1910-11, the latter was not quite sure that the former would want to see him. The intimation of this in a letter brought out all that was most feminine in Henry James, and one is reminded of James's story Poor Richard, published forty-four years before, and evidently inspired by the holiday that he and Holmes and another ex-soldier had spent in North Conway, New Hampshire, with James's cousin Minnie Temple. "I ask myself frankly today, dear Wendell,—or rather, still more frankly, ask you—why you should 'feel a doubt' as to whether I should care to see you again and what ground I ever for a moment gave you for the supposition that the 'difference in the sphere of our dominant interests' might have made 'a gulf that we cannot cross.' As I look back at any moment of our contact—which began so long ago—I find myself crossing and crossing with a devotedness that took no smallest account of gulfs, or, more truly, hovering and circling and sitting on your side of the chasm altogether (if chasm there were!)—with a complete suspension, as far as you were concerned, of the question of any other side. Such was my pleasure and my affection and my homage—and when and where in the world did you ever see any symptom of anything else?" But Henry James, too, had his reservations. When Holmes had sent him a Memorial Day address delivered at Harvard in 1895, he wrote William: "It must have been rarely beautiful as delivered. It is ever so fine to read, but with the always strange something unreal or meager his things have for me—unreal in connection with his own remainder, as it were, and not wholly artful in expression. But they are 'very unique'—and I shall write to him in a high key about this one."

This address—The Soldier's Faith—illustrates in a striking way the paradox of Holmes's attitude toward the Civil War. Though he did not want to hear about it, though he seems to have felt little interest in it as an episode in American history, he had it with him, nevertheless, all his life. That he has managed to survive his regiment has become for him a source of pride, and in writing to correspondents, even to those whom he does not know well and even as late as 1927, he rarely fails to signalize the dates of the Battles of Ball's Bluff and Antietam, at both of which he had been wounded, by some such note as "31 years and one day after Antietam," "Antietam was 65 years ago yesterday," "We are celebrating Antietam, where if a bullet had gone one eighth of an inch differently the chances are that I should not be writing to you." It is as if he were preening on paper his formidable military mustaches, for the trimming of which, he mentions to Pollock, he depends upon a favorite Washington barber. (John De Forest wore a similar pair, and Ambrose Bierce's, although not of the handlebar type, had also the military bristle. Neither of these, however, was at all on the scale of Holmes's.) "It may well be," says Mr. Howe, "that of the two wars, the war in fact and the war in retrospect, it was the latter which was dominantly formative of [Holmes's] philosophy." He seems now to have completely lost sight of the angry young man who had once rebelled against the butcheries of Cold Harbor and the Wilderness. He comes finally to insist on the dignity of war as an exercise in personal virtue. "I do not know what is true," he wrote in The Soldier's Faith. "I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use."

He seems now to approve of all wars—at least those in which the English-speaking peoples take part. At the time of our war with Spain, he writes Pollock that the sound of a military band recalls to him "old days": "It gives one a certain ache. It always seems to me that if one's body moved parallel to one's soul, one would mind campaigning less as an elderly man than as a young man"; and he "confesses to pleasure" in hearing, on the part of his friend Brooks Adams, "some rattling jingo talk after the self-righteous and preaching discourse, which has prevailed to some extent at Harvard College and elsewhere." Writing to Pollock when the Boer War is going on, he wishes the British "a speedy success"; and writing to Harold Laski in 1916, he assures him of the ancient Romans that, "It did those chaps a lot of good to live expecting some day to die by the sword." When Pollock, after World War I, visiting France in 1928, writes Holmes of his indignation at the idea of "preaching to the French" that they ought to forget what the Germans have done to them, he replies, "I agree with your condemnation of armchair pacifists on the general ground that until the world has got farther along war not only is not absurd but is inevitable and rational—although of course I would make great sacrifices to avoid one." A saying of Rufus Choate's about John Quincy Adams that the latter "had the instinct for the jugular"—Holmes's own having been barely missed when he was shot through the neck at Antietam—was to become one of his favorite phrases.

These evidences of abiding pugnacity, when piled up as I have done with them above, may give the impression that Holmes was a tiresome old professional veteran, always ready to rattle his saber; but actually he was much too well-bred and much too serious-minded ever to let himself become boring or ridiculous. With his essentially philosophic mind, which was speculative but also very rigorous, he must account for the war and his part in it in terms of a general philosophy, and it is here that his honesty as a thinker is to be seen at its most impressive. There is no cant about the war in Holmes; for a Northerner of his generation, he permits himself a minimum indulgence in conventional special pleading and obscuration of actuality by myth. It is true that although at one point in the war he had come to believe that the Union was aiming at "the subjugation . . . of a great civilized nation," he was to become, when the war was over, distinctly contemptuous of the Southerners and to write to Senator Albert J. Beveridge: "I hope that time will explode the humbug of the Southern Gentleman in your mind—not that there weren't a few—and not that their comparatively primitive intellectual condition didn't sometimes give a sort of religious purity of type, rarer in the more civilized and therefore more sceptical northerner. But the southern gentlemen generally were an arrogant crew who knew nothing of the ideas that make the life of the few thousands that may be called civilized." Elsewhere he goes even further and declares that he has never known a Southerner whom he considered to be a gentleman. But he always accepts realistically and indeed makes the basis of his system—legal as well as historical, since law, in Holmes's conception, is always molded by history—the action of the Union and its consequences.

He has repudiated the gospel of the militant God; he thinks that God has had nothing to do with it. The New England theocracy is gone forever. "I can't help an occasional semi-shudder," he says in a letter to Laski of May 8, 1918, "as I remember that millions of intelligent men think that I am barred from the face of God unless I change. But how can one pretend to believe what seems to him childish and devoid alike of historical and rational foundations? I suppose such thoughts would be as likely to occur to you about Valhalla or the Mahometan hell as about this. Felix [Frankfurter] said so himself the other night—but I was brought up in Boston—and though I didn't get Hell talk from my parents it was in the air. Oh—the ennui of those Sunday morning church bells, and hymn tunes, and the sound of the citizen's feet on the pavement—not heard on other days. I hardly have recovered from it now. I am glad to remember that when I was dying after Ball's Bluff I remembered my father's saying that death-bed repentances generally meant only that the man was scared and reflected that if I wanted to I couldn't, because I still thought the same."

That Holmes had begun to think early about the problem of moral relativity and actually to formulate the conceptions which were to govern his thinking in later life we have seen from his reflections on his escape from death after his wounding at Ball's Bluff. He had decided already at twenty that "good" and "general law" were "synonymous terms in the universe," that "good only means certain general truths seen through the heart and will instead of being merely contemplated intellectually," and that he doubted "if the intellect accepts or recognizes that classification of good and bad."

What is left, without God's direction, is simply a conflict of forces, in which the party that wins rules the roost. Mr. Howe, in his searching biography, has shown how Holmes's point of view owed a good deal to Darwin's theory of the survival of the fittest and to the positivism of Auguste Comte, as well as to the pragmatism of Charles S. Peirce, who had been one of Holmes's circle in Boston. Such thinkers as Peirce had rejected the authority of both divine and "natural" law. Moral values could not be decided in any objective way, and if two sets of values conflicted, the question of which should prevail could only be decisively settled by one side's suppressing the other. "Pleasures are ultimates," Holmes writes to Laski on August 5, 1926, "and in cases of difference between ourself and another there is nothing to do except in unimportant matters to think ill of him and in important ones to kill him. Until you have remade the world I can class as important only those that have an international sanction in war." It is amusing but very characteristic that this dictum about fundamentals should have been prompted by a difference of opinion between Holmes and his British correspondent as to the merits of Jane Austen's novels, for which Holmes, like Mark Twain, did not care; but it was none the less a serious expression of the Justice's fundamental ideas. The question of the dulness of Jane Austen leads him to argue his pragmatic position, and this pragmatic position implies his attitude toward the Civil War. The Unionists and the Southern secessionists had had, from Holmes's point of view, a serious difference of opinion about matters sufficiently important to warrant their resorting to arms. The Northerners had had to kill the Southerners in order to keep the South in the Union. And thus, at least, Holmes is never misleading. He does not idealize Lincoln; he does not shed tears about slavery. He does not call the planters wicked; he merely says that they are not truly "civilized." In his opinions on cases in the South in which the court has been intimidated by a mob, he will censure its legal procedure, but he never, even off the bench, gives way to moral indignation.

The rights, then, in any society, are determined, after a struggle to the death, by the group that comes out on top. Holmes is always insisting on the right to kill, to establish authority by violent means, to suppress in a crisis, as Lincoln did, subversive or obstructive speech. In peace-time, the sovereign power has the right to impose its policies, and the function of the laws that it passes is to see that these are carried out.

Quotations from Holmes could be multiplied to demonstrate his philosophy of force majeure—as they could be on any other point of his thinking, for in his papers and correspondence he repeated his opinions again and again, often in the same words. One may quote from his letters to Laski and Pollock such passages as the following. To Laski, October 26, 1919: "I fear we have less freedom of speech here than they have in England. Little as I believe in it as a theory, I hope I would die for it and I go as far as anyone whom I regard as competent to form an opinion in favor of it. Of course when I say I don't believe in it as a theory I don't mean that I do believe in the opposite as a theory. But on their premises it seems to me logical in the Catholic Church to kill heretics and [for] the Puritans to whip Quakers—and I see nothing more wrong in it from our ultimate standards than I do in killing Germans when we are at war. When you are thoroughly convinced that you are right—wholeheartedly desire an end—and have no doubt of your power to accomplish it—I see nothing but municipal regulations to interfere with your using your power to accomplish it. The sacredness of human life is a formula that is good only inside a system of law." There is of course on Holmes's part a certain inconsistency here, to which we shall return in a moment. To Laski, January 14, 1920: "I repeat my old aphorism that everything is founded on the death of men—society, which only changes the modes of killing—romance, to which centuries, that is generations, of dead, on the memorial tablets of a great war, are necessary." And on the following February 1, he expressed the same idea to Frederick Pollock: "I loathe war—which I described when at home with a wound in our Civil War as an organized bore—to the scandal of the young women of the day who thought that Captain Holmes was wanting in patriotism. But I do think that man at present is a predatory animal. I think that the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of world I see no remedy except force. I may add what I no doubt have said often enough, that it seems to me that every society rests on the death of men . . ." And to Laski on May 20 of the same year: "Perhaps you respect the self-assertion a little more than I do," he writes apropos of Randolph Bourne, who had opposed our intervention in the first World War, "If I may quote my favorite author (as Thackeray says) with regard to his objections to treating a man as a thing—a means—and not as an end in himself, 'If a man lives in society, he is liable to find himself so treated!' I have no scruples about a draft or the death penalty."

I do not mean at all to depreciate Holmes by pointing out the special emphasis that he put upon killing. This was the heritage of the Civil War. Ambrose Bierce, as we have seen, after a similar experience, was obsessed by the idea of death, and he succumbed to its morbidity as Holmes did not. Holmes's long and hard service as a soldier had, besides, given him something else which was to become excessively rare in the period after the war, when most Northerners wanted to forget or to disguise what had happened. For a young man who has always lived comfortably and accepted the security of convention, it may be an educational advantage for him to see his society with the bottom knocked out, its most honored institutions threatened and its members, irrespective of class, thrown together in conflict to the death or in obligatory coöperation. The law had broken down in America; the Constitution had gone to pieces. It was impossible for an honest man of Holmes's probing intelligence to pretend that the law was a sacred code, which had simply to be read correctly. He always saw it as a complex accretion, a varied assortment of rules that had been drawn up through more than a thousand years and which represented the needs and demands of people existing in particular places at particular periods of history. He was not the first writer to examine the law from an historical point of view, and he must have been influenced by Ancient Law, the pioneering book by Sir Henry Maine, which was published in 1861. But in his treatise on The Common Law he, too, was a pioneer in examining our legal code in the light of its historical origins. The book begins with a statement of the attitude and method of the author which has now become a classical formulation: "The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." He unravels with subtlety and coolness many curious misunderstandings by which antiquated statutes have been carried along and have been made to mean something quite different from what they did in their remote beginnings. He shows, also, how ancient ideas of morality still color the language of modern law and how modern ideas of morality are read back into language where they do not belong. Holmes's interest in the law, as he often says, is anthropological and sociological as well as philosophical. He likes to treat tradition lightly, to insist that a law's long existence is no reason for not repealing it tomorrow; yet, skeptical though he is, he believes in the general validity of any corpus of law as the expression of the dominant will of any considerable social group.

How, then, in view of this philosophy, was it possible for Oliver Wendell Holmes to become, in the nineteen-twenties, a great hero of the American "liberals," who were intent upon social reforms and who leaned sometimes pretty far to the Left?

There was a certain element of comedy in this situation. Besides believing that might made "rights," Holmes could not, in his economic views, have been further from Harold Laski and the editors of the New Republic, and he was as contemptuous of what he called "the upward and onward" as H. L. Mencken was of what he called "the uplift." He was actually, in certain ways, intellectually closer to Mencken than to his favorite young friend Laski, to whom he writes (February 10, 1920): "I took malevolent pleasure in Mencken's Prejudices, which devotes a chapter to speaking ill of [Thorstein Veblen]. Do you know that writer [Mencken]? With various foibles, he has a sense of reality and most of his prejudices I share." The economic views of Holmes did not admit of redistribution of wealth, and they had never, as has been said by Mr. Francis Biddle, changed at all since he was twenty-five. "On the economic side," he writes to Laski on January 8, 1917, "I am mighty skeptical of hours of labor and minimum wages regulation, but it may be that a somewhat monotonous standardized mode of life is coming. Of course it only means shifting the burden to a different point of incidence, if I be right, as I think I be, that every community rests on the death of men. If the people who can't get the minimum are to be supported, you take out of one pocket to put into the other. I think the courageous thing to say to the crowd, though perhaps the Brandeis school don't believe it, is, you now have all there is—and you'd better face it instead of trying to lift yourselves by the slack of your own breeches. But all our present teaching is hate and envy for those who have any luxury, as social wrong-doers." He had a conception of "the stream of products," as he called it, as something with which one should not try to tamper. "For instance, take taxation—," he writes Laski, May 17, 1917, "if you stop with preliminary machinery you think of breaking up great estates and old families by an inheritance tax or of cutting down great profits by an income tax—if you pass by means to ends you see that any form of considerable taxation means withdrawing so much of the stream to feed, clothe, and house those whom the Government elects to feed, clothe, and house—and that the rest of the crowd must have so much less." And he had been permanently influenced by Malthus. "To my mind," he says in a letter of May 24, 1919, "the notion that any rearrangement of property, while any part of the world propagates freely, will prevent civilization from killing its weaker members, is absurd. I think that the crowd now has substantially all there is—and that every mitigation of the lot of any body of men has to be paid for by some other or the same body of men—and I don't think that cutting off the luxuries of the few would make an appreciable difference in the situation."

The only possibility for human improvement that he seems to have been able to envisage is some process of breeding a "selected race." He mentions this in a letter to Pollock of February 1, 1920; and he seems to be referring to a theory which he has already rather remotely invoked without elaborating upon it in a paper of five years before, "Ideals and Doubts" (reprinted in Collected Legal Papers): "I believe that the wholesale social regeneration which so many now seem to expect, if it can be helped by conscious, coördinated human effort, cannot be affected appreciably by tinkering with the institution of property, but only by taking in hand life and trying to build a race." This last reference to building a race is illuminated by passages in unpublished letters. To Lady Leslie Scott he had written in 1912: "As to eugenics I don't exactly know what your government could undertake if they wanted to tackle it. But, as you probably know, I have thought from before the days of Galton that it was the true beginning, theoretically, of all improvement. The folly, to my mind, of socialism is that it begins with property instead of with life. I remember saying to Arthur McLellan in the Army—the day will come when the boss will say we shall be wanting some statesmen (artists, manufacturers or whatnot) in thirty years—John A376 and M2—which I think embodied the principles in sufficiently concrete form." And to another correspondent, in 1917, he professes a profound contempt for any variety of socialism which does not try to remold life rather than rearrange property and to put to death all the people who do not come up to a certain standard. But he does not, so far as I have been able to find, enlarge on this proposed solution. One cannot be sure whether Holmes is thinking of eugenics or education.

There were, however, two important matters as to which the opinions of Holmes seemed to be often on the same side as those of the liberals: labor and free speech. In the course of his twenty years—1882-1902—as a judge of the Massachusetts Supreme Court (and Chief Justice from 1899), he had sometimes dissented in cases where the right to strike or to picket was being denied by his colleagues, and this had horrified conservative Boston and gained him the reputation of being rather a dangerous man, a reputation which provoked some strong protests when in 1902 he was appointed by Theodore Roosevelt to the Supreme Court of the United States. "They don't know much more," he wrote Pollock, "than that I took the labor side in Vegelahn v. Gunther and as that frightened some money interests, and as such interests count for a good deal as soon as one gets out of the cloister, it is easy to suggest that the judge has partial views, is brilliant but not very sound . . ." In the United States Supreme Court itself, he continued to pursue this policy of not hesitating to decide against the money interests." He dissented, for example, with Louis Brandeis, from a majority decision which declared unconstitutional an Act of Congress that prohibited the transportation from one state to another of the products of factories in which children were employed, contending that if Congress had the power to regulate interstate commerce in such matters as fraudulent drugs and the transportation of girls for purposes of prostitution, it had also the power to prohibit the transportation of "the product of ruined lives." In writing this dissenting opinion, he evidently feels some sympathy for the children; but he had no special feeling for labor. He seems instinctively to have turned away from the dingy industrial world with which these opinions dealt. He said once that his only firsthand contact with Massachusetts industrial life had been occasionally taking out, in his youth, the girls from the Lawrence factories. It is true that his long friendship with Louis D. Brandeis, whom he had known when the latter taught at Harvard Law School and with whom he was later associated when Brandeis, in 1916, was appointed to the Supreme Court by Wilson, did something to call his attention to the badness of working conditions and the odds against which labor was struggling. He writes at the same time to Pollock and to Laski, in May 1919, when he is already seventy-eight years old—using in both cases the same murderous metaphor—that "Brandeis the other day [I quote from the letter to Pollock] drove a harpoon into my midriff with reference to my summer occupations. He said you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don't you try something new, study some domain of fact. Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a human notion of how it really is." But, Holmes goes on to say, "I hate facts. I always say the chief end of man is to form general propositions—adding that no general proposition is worth a damn. Of course a general proposition is simply a string of facts and I have little doubt that it would be good for my immortal soul to plunge into them, good also for the performance of my duties, but I shrink from the bore—or rather I hate to give up the chance to read this and that, that a gentleman should have read before he dies. I don't remember that I ever read Machiavelli's Prince—and I think of the day of Judgment." And to Laski, in June of the following year: "In consideration of my age and moral infirmities he [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas." In his attitude toward any dispute at law between working class and "money interests," Holmes felt himself so incomparably superior to the common run of either that it cost him no struggle of conscience to announce what he thought was just, and, in writing certain opinions, he even felt, I think, a certain lofty relish, "le plaisir aristocratique de déplaire. "

In the matter of free speech, he was perhaps somewhat inconsistent, in philosophy, if not in practice. We have seen this in one of the quotations above. He does not like to hear people talk about the "class war" in the United States, and he is reluctant to extend to a dominant group inside an established society the same authority that he willingly assumes for a conquering over a conquered nation: "When I talk of law I talk as a cynic," he writes Laski (December 3, 1917). "I don't care a damn if twenty professors tell me that a decision is not law if I know that the courts will enforce it. . . . And I understand by human rights what a given crowd will fight for (successfully)." He had already expressed similar opinions in a letter of September 15, 1916, but had added: "All my life I have sneered at the natural rights of man—and at times I have thought that the bills of rights in Constitutions were overworked—but these chaps [Faguet and Hazlitt, whom he has just been reading] remind me, if I needed it. . . that they embody principles that men have died for, and that it is well not to forget in our haste to secure our notion of general welfare." (Note that what justifies these principles is that men have allowed themselves to be killed for them.)

It may be that the influence of his new friends the liberals counted for something with Holmes in his opinions after the first World War in cases in which the issue of free speech was involved. In the cases of Schenck and Debs, he had upheld, under the wartime Espionage Act, convictions for obstructing the draft. But he had reacted to the wartime intolerance against any sort of expression of radical opinion, as he invariably did, after the Civil War, to fanaticism of the Left or the Right. He writes Laski in connection with Debs on March 16, 1919: "The federal judges seem to me (again between ourselves) to have got hysterical about the war. I should think that the President when he gets through with his present amusements [Wilson's visit to Europe in the interests of the League of Nations] might do a little pardoning." And to Pollock on April 5: "I am beginning to get stupid letters of protest against a decision that Debs, a noted agitator, was rightly convicted of obstructing the recruiting service so far as the law was concerned. I wondered that the Government should press the case to a hearing before us, as the inevitable result was that fools, knaves, and ignorant persons were bound to say he was convicted because he was a dangerous agitator and that obstructing the draft was a pretence. How it was with the Jury of course I don't know, but of course the talk is silly as to us." In the Abrams case, which followed in the same year, dissenting with Brandeis from the majority opinion, Holmes took a strong line in favor of Civil Rights and tried to square the right to free speech with his philosophy of the rights of power. Russian immigrants had scattered some leaflets in which—though the authors made plain that they were not opposed to the war against Germany—the munition workers were urged to strike against the armed intervention by the United States in opposition to the Russian Revolution. Holmes held that even this exhortation did not constitute "resistance to the United States." "In this case," he goes on, "sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper—I will add, even if what I think the necessary intent were shown—the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court." He now, in his final paragraph, reverts to his theory that repression is the prerogative of established power: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. 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, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law . . . abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States."

The important point here is that, in firm disregard of the panic created by the Russian Revolution, he is giving the foreign radicals the benefit of a doubt. This opinion provoked a fierce outburst on the part of John Henry Wigmore, the Dean of Northwestern Law School, which Holmes characterized as "bosh," but it brought from Harold Laski a paean of praise. It may be that in the climate of appreciation provided by the liberal group the spirit of Puritan protest was coming to life in Holmes after the paralyzing stroke to his idealism administered by the Civil War, in which the Abolitionist protest against slavery had been discredited by his practical experience, and his incipient sympathy with the protest of the South had been killed by the victory of the North and by a realistic recognition of the power of the latter to impose its will. But the liberals of the post-World War period were now slaking Holmes's thirst for intercourse with men of ideas. They stimulated and entertained him as well as gave him the admiration he craved. He had always been rather lonely, since the days of the Harvard philosophers, for the intellectual companionship of equals. His long correspondence with Sir Frederick Pollock, a sort of English opposite number, like Holmes a great legal scholar with wide-ranging historical and literary interests—which began in the middle seventies and continued to the end of Holmes's life—shows how eager he was for this. "I . . . must vent a line of unreasoning—rage I was going to say—dissatisfaction is nearer . . ." he writes to Pollock of the newspaper comments on his appointment to the United States Supreme Court. "They are so favorable that they make my nomination a popular success but they have the flabbiness of American ignorance. I had to get appreciation for my book in England before they dared say anything here except in one or two quarters. . . . It makes one sick when he has broken his heart in trying to make every word living and real to see a lot of duffers, generally I think not even lawyers, talking with the sanctity of print in a way that at once discloses to the knowing eye that literally they don't know anything about it. . . . If I haven't done my share in the way of putting in new and remodeling old thought for the last 20 years then I delude myself. Occasionally some one has a glimpse—but in the main damn the lot of them." Later on, in 1917, he writes enthusiastically about Laski, the brilliant young Jew from Manchester then lecturing on politics and history at Harvard: "He goes with some of the younger men like Frankfurter and the New Republic lot, who make much of your venerable uncle and not only so, but by bringing an atmosphere of intellectual freedom in which one can breathe, make life to him a good deal more pleasant."

But the further these liberals incline toward the Left, the less can Holmes accept their conclusions. "I have begun Karl Marx's book," he had written Pollock in 1893, "but although he strikes me as a great man I can't imagine a combination less to my taste than Hegel and political economy"; and he writes later, in 1912, that Proudhon was "a man of insights, who ends by boring you as all men with issues and panaceas in their head do, especially if you think you know the answer," and that "I liked to have him walk into Karl Marx as a plagiarist and a humbug, after K. M.'s bullying everybody else as a bourgeois intelligence." Of "the accursed Trotsky's" autobiography he writes to Laski (July 10, 1930): "I am interested enough not to throw the book aside but I shall be glad when I am done with it. I don't like him and the book seems to have a dominant purpose to blow his own horn at the expense of Stalin. I feel the tone that I became familiar with in my youth among the abolitionists. He to be sure takes his principles for granted. I should like to see them stated. If he still believes in Marx I thought that Capital showed chasms of unconscious error and sophistries that might be conscious." The certainty of one's moral Tightness, the absolute confidence in one's system always set up in him the old antagonism. "He seems to me," he writes Harold Laski in September, 1918, of the pacifist activities of Bertrand Russell, "in the emotional state not unlike that of the abolitionists in former days, which then I shared and now much dislike—as it catches postulates like the influenza"; and in October, 1930, when he has been reading Maurice Hindus's Humanity Uprooted, "His account of the Communists shows in the most extreme form what I came to loathe in the abolitionists—the conviction that anyone who did not agree with them was a knave or a fool. You see the same in some Catholics and some of the 'Drys' apropos of the 18th amendment. I detest a man who knows that he knows." The agitation over the Sacco-Vanzetti case had the same effect on Holmes. He received an appeal by counsel for the defendants for a writ of habeas corpus on August 10, 1927, in the week when the two Italian anarchists were condemned to be executed for a supposed murder, and ten days later an appeal for an extension of time in order to apply to the Supreme Court for writs of certiorari and for a stay of execution while the application was pending. Both of these Holmes denied on the ground, in the first instance, that he "had no authority to take the prisoners out of the custody of a State Court having jurisdiction over the persons and dealing with the crime under a State law," and in the second, because, as he says, he "thought no shadow of a ground could be shown on which the writ could be granted." These appeals had been made in the hope that the Justice would recognize an analogy between the Sacco-Vanzetti case and a Southern Negro case of a few years before in which he had formulated the majority decision in granting a writ of habeas corpus for five men convicted of murder in a court which, as Holmes says, was dominated by a mob, "ready to lynch the prisoner, jury, counsel and possibly the judges if they did not convict"; but he declined to accept this analogy: the prejudices alleged in the Massachusetts court were not really the same thing; in any trial some prejudice could be alleged. And why so much fuss over Sacco and Vanzetti when "a thousand-fold worse cases of Negroes come up from time to time, but the world does not worry about them." The demonstrations at home and abroad, a shower of denunciatory or pleading letters and the blowing-up of the house of one of the jurors had the effect of getting the old Justice's back up. "My prejudices," he writes Laski, after the executions, "are against the convictions, but they are still stronger against the run of the shriekers. . . . The New Republic had an article that seemed to me hysterical. . . . So far as one who has not read the evidence has a right to an opinion I think the row that has been made idiotical, if considered on its merits, but of course it is not on the merits that the row is made, but because it gives the extremists a chance to yell." In December of the following year: "[Felix Frankfurter] is convinced of their innocence—but I was not convinced that too much talk had not been made on the theme. The New Republic recurs to it from time to time. But the New Republic strikes me as having become partisan in tone of late judging from an occasional glance. It seemed to nag at Coolidge—and I rather think believes a number of things that I don't. I come nearer to reading it than I do reading any other newspaper—but I can't be said to read that."

The extent to which Holmes was a "liberal" has therefore been considerably exaggerated; but it is true that the "American Renascence," which began first to stir under Theodore Roosevelt, which was manifesting itself quite vividly when our armies got back from France and which reached in the course of the twenties at least almost the dignity of an Enlightenment, did make Holmes a conspicuous figure and cause him to be generally recognized in the intellectual world as the truly great man he was. His prestige at the Harvard Law School seems steadily to have increased with the years, and in the same year, 1914, that the New Republic was founded, Felix Frankfurter, a sort of disciple of Holmes, or at least in certain respects a continuator of the Holmes tradition, became a professor there. Holmes had always been fond of young people—he had no children of his own, and he was now much sought after and honored by younger men of congenial tastes. Every year he was supplied with a secretary who had graduated from Harvard Law School—a post for which the qualifications were not only special competence in legal studies but historical and cultural interests which would make him a companion for Holmes. The old Justice begins to appear—as he has never in his life done before—in the light of an established sage, a god of the national pantheon. His books are reprinted and read; his minor papers collected and published. In following his correspondence, one feels that he smiles more and growls less. He knows, and the public knows, that Justice Holmes has become a classic. In the reaction against the gentility, the timidity, the sentimentality of American cultural life, he is seen to have been a humanist, a realist, a bold and independent thinker, who has required of himself from the first to meet the highest intellectual standards and who has even, with little public encouragement, succeeded in training himself to become also a distinguished writer. The Common Law, though lucid in intention, is so compact and so closely reasoned that it is sometimes opaque to the layman, and one is relieved to hear even from lawyers that they sometimes find it difficult reading. But in general Holmes's legal studies are so elegantly and clearly presented, so free from the cumbersome formulas and the obsolete jargon of jurists, that, though only an expert can judge them, they may profitably be read by the layman.

As for the speeches and non-legal essays, they ought to be read by everyone. One guesses that it is only Holmes's atheism, his lack of conventional patriotism and his complete incapacity for the optimism which, in that period of national self-congratulation, had become almost obligatory for public figures—Holmes thought that even William James was too open-minded and exuberant—which have kept them out of school and college textbooks. The younger Holmes was not, like his father, a fluently felicitous writer; but his literary sense was developed in a remarkable, if limited, way. One feels sometimes that this sense is quite subtle, as when, in a letter to Owen Wister, he compares the effects of light on light in Dante's Paradiso with Andrew Marvell's "green thought in a green shade," or when he comments, in a letter to Laski, on Alfred de Musset's stories: "He is like the flowering of an apple tree and hardly lives beyond the moment of copulation, but I can't believe that knowing but essentially second-rate Remy de Gourmont that we now know that A. de M's phrase is empty. Charm is one of the few things that survive." But there is also a certain unwillingness to let himself go with the poets. He firmly maintains that Macbeth, on hearing of the death of his lady, would hardly have been likely to soar into the "Out, out, brief candle" speech; and, having put himself through the Odyssey in Greek, he doubts whether it has been really worth while. He is torn between a moral obligation to make himself acquainted with the classics and a feeling that they are out of date, that it is more profitable to read something modern. But he developed, for his occasional pieces, a literary style of his own which conforms to the same austere ideal as his professional legal papers. He worked very hard over writing, and he gave to these short pieces a crystalline form as hard and bright as Pater's flame. They are perfect, and they are undoubtedly enduring—since their value lies not merely in the style, by means of which he "makes every word tell": it is almost impossible for Holmes even to touch upon any problem of legal interpretation or to compose a brief memorial for some old colleague of the Boston bench or bar without assigning it or him to a place in a larger scheme.

It is Holmes's special distinction—which perhaps makes him unique among judges—that he never dissociates himself from the great world of thought and art, and that all his decisions are written with awareness of both their wider implications and the importance of their literary form. He was not merely a cultivated judge who enjoyed dipping into belles lettres or amusing himself with speculation: he was a real concentrator of thought who had specialized in the law but who was trying to determine man's place, to define his satisfactions and duties, to try to understand what humanity is. It is this that makes Holmes's correspondence, as well as his more formal writings, so absorbing and so fortifying and a very important part of his "œuvre. " In spite of his strong negative predispositions, he will not relinquish a fundamental skepticism as to human convictions and systems, and he is always alert and attentive, always inquiring and searching, to find out some further answers. "The book is pretty thick with suggestions,. . ." he writes Pollock when he is reading Spengler. "I don't value his conclusion, but do his aperçus. Isn't that so of all theorists and system makers. . . . Yet when one suspects that a man knows something about life that one hasn't heard before one is uneasy until one has found out what he has to say." Through his long lifetime—Holmes died at ninety-four—he seems never to falter or to become fatigued in the discharge of his professional duties or in the eager intellectual life which occupied him beyond his profession. Among the sequences of correspondence so far published, Holmes is to be seen at his best in his long exchange of letters with Pollock. With Laski, a much younger man, whom he did not know till 1916, there is never the same intimate relationship; and Laski sometimes falsifies his side, in his effort to keep the old man amused, by resorting to a certain amount of flim-flam. But in the correspondence with Pollock, in which both are as free as was possible for men of their generation from common nineteenth-century prejudices, as they discuss their professional interests and boundlessly range beyond them—Frederick Pollock was a great linguist and traveller—through a friendship that lasted six decades, we see Holmes on his highest level.

Of his generation that fought in the Civil War and among the really gifted men whose characters and subsequent careers were profoundly modified by it, Holmes the younger perhaps stands alone as one who was never corrupted, never discouraged or broken, by the alien conditions that the war had prepared. How was it that he managed to survive, to function as a first-rate intellect, to escape the democratic erosion?

He was indeed a very special case. It is plain that his unshakable self-confidence, his carapace of impenetrable indifference to current pressures and public opinion was due partly to the impregnable security of belonging to the Boston "Brahmin" caste. This term had been invented by Dr. Holmes, and the peculiar position of the caste, its conception of its own special function, is explained in the opening chapters of his novel Elsie Venner. The Boston Brahmins, says Dr. Holmes, are not only distinct from any other group in New England, they differ from any other aristocracy in the world. There are, to be sure, in New England, families who seem to rise by suddenly making money, but they lose it in the third generation, and they cannot become Brahmins. The distinguishing mark of the Brahmin is that, from generation to generation, he maintains a high tradition of scholarship: the Brahmins are all preachers, lawyers, doctors, professors and men of letters. Some rough ambitious young boy may come to college from the New England countryside and prove able to compete with a Brahmin, but this is rather an exceptional event, and if one finds a young man with an unknown name, not "coarse" and "uncouth" like the countryman, but slender, with a face smooth and pallid, features "regular and of a certain delicacy," whose eye is "bright and quick," whose lips "play over the thought he utters as a pianist's fingers dance over their music," whose "whole air, though it may be timid, and even awkward, has nothing clownish," you may be sure that his mother was a Brahmin. There must of course at some point have been money to supplement the aptitude for learning. The author of Elsie Venner does not say this in so many words, but he admits that it is sometimes possible for a Brahmin to become impoverished and that in that case he may marry property. Now, Oliver Wendell Holmes the elder had himself married the daughter of a Jackson, a justice of the Massachusetts Supreme Court, whose family, successful merchants, owned most of the large town of Pittsfield (where Oliver, Jr., spent his boyhood summers), and the son married Fanny Bowditch Dixwell, the granddaughter of the celebrated author of that Bible of the New England sea trade, the Practical Navigator, and the daughter of Epes Sargent Dixwell, who had read law in Judge Jackson's office and later, with a reputation as the best classical scholar in Boston, been headmaster of the Boston Latin School, at which Oliver, Jr., had studied.

It would be easy, by appropriate quotation, to create the impression that Holmes was an egregious social snob of a peculiarly provincial kind. His contempt for the common run of men had come out very strongly at the time of the war, when for the first time he had had to have some contact with it. "While I'm living en aristocrate," he had written his sister on his way back from furlough to rejoin his regiment, "I'm an out-and-outer of a democrat in theory, but for contact, except at the polls, I loathe the thick-fingered clowns we call the people—especially as the beasts are represented at political centres—vulgar, selfish and base." We have seen his opinion of Southerners and their pretentions to be considered gentlemen. Of even the Philadelphians he writes Pollock that, "While not infrequently having the manners of the great world," they have "somehow . . . always . . . struck me as hopelessly injected with the second rate, when I have seen them in their law, on which they pride themselves—but I would not breathe this aloud." He hardly ever mentions the Jameses without referring to the fact that they are Irish, with, in Henry's case, an intimation of underbreeding in comparison to the Anglo-Saxon and, in William's, an implication that, though lively and full of eloquence, he is not quite to be taken seriously. (His attitude toward the Jews is quite different. Through his intelligence and his love of learning, his sharpness of mind and his humor, he has obviously more in common with certain of his Jewish colleagues than with most of his Gentile ones; and there is also no doubt the traditional prestige which the Jews have had in New England, due to the self-identification of the Puritans with the Old Testament Israelites. Holmes is said to have believed that the Wendells were Jewish—they were originally Vondals from Holland; and he seems to have regarded the intellectual Jew as a special variety of Brahmin.)

Holmes's attitude toward the ablest of the Presidents under whom, as a soldier or a judge, he had served was invariably patronizing. He was not at first impressed by Lincoln: "Few men in baggy pants and bad hats," he wrote to one correspondent, "are recognized as great by those who see them." And to Beveridge: "Until I was middle-aged I never doubted that I was witnessing the growth of a myth. Then the revelation of some facts and the greatness of some of his speeches—helped perhaps by the environing conviction of the later world—led me to accept the popular judgement—which I do, without a great deal of ardor or very great interest in the man." Of Theodore Roosevelt, by whom he had been appointed to the Supreme Court, he writes Pollock that he "was very likeable, a big figure, a rather ordinary intellect, with extraordinary gifts, a shrewd and I think pretty unscrupulous politician. He played all his cards—if not more." Roosevelt had apparently expected Holmes, in return for his appointment to the Court, to vote in support of the President's measures, and when Holmes had soon failed to do this in dissenting from a majority decision, in the Northern Securities case, which held that this company had violated the Sherman Anti-Trust Act, the President—by way of third parties—emphatically expressed his displeasure. The response of the Brahmin judge to such an explosion of pique on the part of a successful New York politician was a lofty New England contempt. In the same letter quoted above, he tells Pollock that "a Senator in his [Roosevelt's] day" had said that "What the boys like about Roosevelt is that he doesn't care a damn for the law." Holmes continues, "It broke up our incipient friendship . . . as he looked on my dissent to the Northern Securities Case as a political departure (or, I suspect, more truly, couldn't forgive anyone who stood in his way). We talked freely later but it never was the same after that, and if he had not been restrained by his friends, I am told that he would have made a fool of himself and would have excluded me from the White House—and as in his case about the law, so in mine about that, I never cared a damn whether I went there or not." It is amusing, in view of this, to remember the acute sensitivity—the Coolidges being an old Massachusetts family—of his suspicion that the New Republic is "nagging" at the pygmy Coolidge. It has been thought that his reluctance to intervene in the Sacco-Vanzetti case was due to a stubborn unwillingness to impugn the Massachusetts bench, on which he himself no longer sat—a reluctance which he had not felt, in the Negro and the Leo Frank cases, in regard to the Southern judiciary.

It will, however, be seen that there runs all through this the special ideal of the Brahmin, whose superiority is not merely social. The Philadelphians, though sometimes good-mannered, are decidedly second-rate at law; the Irish, though gifted, lack rigor; Lincoln, though he wore baggy trousers and though he could hardly be interesting to a Brahmin, did in his speeches have moments of greatness. And it is greatness, not a polished complacency—though, to be sure, a better turned-out greatness than that of which Lincoln was capable—at which Holmes himself always aims. When he says—it is a favorite phrase—that someone is "a great swell," he never means that he is socially brilliant but always that he is preëminent intellectually—a top expert in some department or a profound and original thinker. When he speaks of "touching the superlative"—another favorite phrase—he always means excelling in one's work. After the funeral of Mahlon Pitney, one of his Supreme Court colleagues, he writes Pollock, "He could not touch the superlative, and when he first came to the bench riled me by excessive discourse. But he took his work seriously, was untiring in industry, had had some experience of life, and as Brandeis always said and, I came to think, truly had intellectual honesty that sometimes brought him out against his prejudices and first judgment." And elsewhere in a letter to Pollock: "I am looking forward with curiosity to the new Chief Justice [William Howard Taft]. He marked a fundamental difference in our way of thinking by saying that this office always had been his ambition. I don't understand ambition for an office. The only one that I feel is to believe when the end comes, for till then it is always in doubt, that one has touched the superlative. No outsider can give you that, although the judgment of the competent, of course, helps to confidence—or at least to hope. Between ourselves I doubt if Mr. T. can do that."

It was not true, as we have seen, that Holmes had never been ambitious for office; but it was true that, having attained it, he wanted to feel that he stood in the highest rank of a non-official scale of values. How eager he was for assurance of this appears in a letter to Pollock just after his eighty-first birthday: "I have had some letters and one or two notices in the paper that have touched me deeply. They have said what I longed to hear said and would almost willingly have died to hear twenty years ago"—that is, in 1902, when Roosevelt had appointed him to the Supreme Court and when Holmes had complained to Pollock of the lack of recognition of his merits, as he was later sometimes to complain that he was not fully accepted as "a great judge." "The only thing an internal man cares for," he writes Dean Wigmore in 1910, "is to believe he is taking the right track for intellectual mastery. Only a few men in this world . . . can do anything to assure one's ever-doubting soul about that." There is surely something of Calvinism in this: the anxiety, the undermining doubt as to whether one has really been Elected. Holmes is Calvinist in his concentration on making certain of his own élite status, as well as in his almost complete lack of interest in other people as individuals. There is no gossip in Holmes's letters, very little discussion of personalities; when he expresses an opinion of somebody, it is always in terms of his abilities, that is, of his eligibility to be counted among the Elect. He read a good many novels—he seems to have had a special liking for French ones—and in Washington he and his wife went to the theater every Thursday night; but he did not care much for biographies. His reading is dominated by a sense of duty and a Puritanical fear of idleness. He feels that he must grapple with certain works, quite apart from any pleasure they give him, and, once having begun a book, no matter how dull or verbose it is, he must read every word to the end. He is always imagining—this is humorous, of course, but it shows a habit of mind—that God, at the Judgment Day, will ask him to report on the books which he ought to have read but hasn't. Yet in all this he shows a humility which redeems a certain narcissism. He likes to believe of others, whatever their reputations, that they have not really touched the superlative, and his biographer says that he is grudging in acknowledging his debt to his predecessors; but of certain people—Pollock, for example—he seems somewhat to stand in awe, and he is always confessing his deficiencies. One feels that he is not very far from Calvin's conception of "the Communion of Saints." Calvin readily admitted that his clergy on the earth were not free from non-Elect elements; but this alloy did not impair the true church, which consisted of those who were saved, whether living or already in Heaven, and who constituted a kind of club from which everyone not saved was excluded. So Holmes finds his only solidarity with the classical "great swells" of the past and with the few possible "great swells" of the present and future.

Now, despite the fact that Holmes as a judge is dealing constantly with concrete cases of men in relation to men and in spite of his insistence that "the life of the law" has been not logic but historical experience, in spite of the common sense that he brings to the application of his principles—in spite of all this, it would seem that dedication to an ideal of excellence which is not to save others but to justify oneself must cut one off from the rest of society. He had no children to bring to his notice the problems of the contemporary world, and is said not to have wanted any, since he feared they would distract him from his great objective. In Holmes's effort to touch the superlative by practising his juristic profession with all its drudgery and its hard limitations, he evolves the conception of the "jobbist" and even forms a kind of jobbists' club, which, however, except by correspondence, may not involve personal contacts. The jobbist is one who works at his job without trying to improve the world or to make a public impression. He tries to accomplish this professional job as well as it can be accomplished, to give it everything of which he is capable. The jobbist is alone with his job and with the ideal of touching the superlative—which in his grandfather Abiel Holmes's time would have been called being chosen for salvation.

The extent to which the grandson succeeded, after his service in the Civil War, in remaining aloof and detached from the life of the United States was a phenomenon of a very uncommon kind. He is at first, when appointed to the Supreme Court, as he writes Pollock, "more absorbed, interested and impressed than ever I had dreamed I might be. The work of the past seems a finished book—locked up far away, and a new and solemn volume opens. The variety and novelty to me of the questions, the remote spaces from which they come, the amount of work they require, all help the effect. I have written on the constitutionality of part of the Constitution of California, on the powers of the Railroad Commissioners of Arkansas, on the question whether a law of Wisconsin impairs the obligation of the plaintiff's contract. I have to consider a question between a grant of the U.S. in aid of a military road and an Indian reservation on the Pacific coast. I have heard conflicting mining claims in Arizona and whether a granite quarry is 'Minerals' within an exception in a Railway land grant and fifty other things as remote from each other as these." But though the Holmeses had made one trip to the Coast in 1888 and spent two weeks at Niagara Falls, it would never have occurred to the Justice to pay a visit to any of these places or even to read them up. And not only does he resist the suggestion that he look into the conditions of American labor, he even makes it a rule not to see the papers, which he feels are a waste of time. "I don't read the papers," he writes Pollock, in 1905, "or otherwise feel the pulse of the machine." It was mainly through Mrs. Holmes that he acquired any knowledge of current events. Of American business he knew almost nothing, only as much as his cases compelled him to learn. "We are sitting and having cases that I dislike about rates and the Interstate Commission. I listen with respect but without envy to questions by Brandeis and Butler using the words of railroading that I imperfectly understand" (to Laski, 1929). But he tried to give the business man his due, and he cherished a strange idealization of James J. Hill, the Western railroad magnate, against whose monopolistic operations the government had intervened in the Northern Securities suit and whose case had been supported by Holmes in the dissent which had infuriated Roosevelt. "I regard a man like Hill," he tells Pollock in 1910, "as representing one of the greatest forms of human power, an immense mastery of economic details, an equal grasp of general principles, and ability and courage to put his conclusions into practice with brilliant success when all the knowing ones said he would fail. Yet the intense external activity that calls for such powers does not especially delight me." And to Laski in 1923: "I . . . don't sympathize with your artist friends in their loathing for business men. It seems to me merely an illustration of the inability of men to appreciate other forms of energy than that which is natural to them. I am not, and I fear could not be a business man—but the types that I have in mind seem to me among the greatest. This is a disinterested appreciation of what generally is disagreeable to me." He had been in fact almost as little prepared as Lincoln or Grant or Lee to understand the social-economic developments that followed the Civil War, and he seems to have had as little to do personally with the tycoons whom he tries to praise as with the factory workers of Lawrence. If he had known them from personal contact, as had that other Boston Brahmin, the younger Charles Francis Adams, who became an expert on railroads and eventually President of the Union Pacific, Holmes would no doubt have agreed with him when he said, in his testy New England way: "A less interesting crowd I do not care to encounter. Not one that I have ever known would I care to meet again, either in this world or the next; nor is one of them associated in my mind with the idea of humor, thought or refinement." (This reference to the next world would seem to have something to do with the New England assimilation of the Communion of Saints to a kind of superior club.)

The real key to Holmes's attitude to business, as to many other aspects of life, is to be found in the distaste for facts and the preference for "general propositions" which he expresses, in the quotation above, in connection with Brandeis's efforts to interest him in factory conditions. This is one of his recurrent themes. He tells Laski, in a letter of January 16, 1918: "My difficulty in writing about business is that all my interest is in theory and that I care a damn sight more for ideas than for facts." And so he further confesses to the same correspondent (October 9, 1921) that his conception of Jim Hill as his "favorite" man of action has been derived "not from knowledge of Hill but from a theoretic construction of what he might have been." To Pollock he writes in 1904: "I never knew any facts about anything and always am gravelled when your countrymen ask some informal intelligent question about our institutions or the state of politics or anything else. My intellectual furniture consists of an assortment of general propositions which grow fewer and more general as I grow older. I always say that the chief end of man is to frame them and that no general proposition is worth a damn." He repeats this in a letter to Pollock seventeen years later, adding, "We are not sure of many things and those are not so."

Though he is still always inquiring into the destiny of man, he can no longer believe that the human race is necessarily of any importance. He writes to Pollock when he is seventy-eight: "I have just read Marvin, The Century of Hope, an interesting conspectus of the modern period inspired by a rather deeper belief in the spiritual significance of man than I am able to entertain and a consequently greater faith in the upward and onward destiny of the race." This readiness to conceive of the human race as an insignificant detail of the universe seems also to be traceable to Calvin, who believed that mankind was nothing in comparison with the omnipotence and infinity of God. In the letter just quoted and another that follows, Holmes even allows himself the concession of using the word God: "I only don't believe, i.e. have no affirmative belief, that man was necessary to God, in order to find out that he existed (if the cosmos wears a beard, as to which I have no opinion). It seems to me probable that the only cosmic significance of man is that he is part of the cosmos but that seems to me enough. . . . It strikes me that these philosophers [such as Ralph Barton Perry of Harvard] have gone round the globe to get to the spot close to which they stood before they began to philosophise—also that they still show their theological inheritance by assuming the special cosmic importance of man. I see no reason to believe that God needed him otherwise than as he may need all that is." But he usually speaks in terms of a beardless universe, and it is one of his recurring contentions that it is foolish to revolt against this universe—in the manner of the angry romantics—because man is a part of this universe and cannot differentiate himself from it in such a way as to create an issue as between himself and it.

As for transforming human society, the old Justice—having lost in the war the high hopes of the Northern crusade and fallen back on a Calvinist position which will not admit the realization of the Kingdom of God on earth—must simply, as a jurist and a jobbist, submit to the dominant will of the society he has sworn to serve. He sometimes detested the laws that this society made him enforce and would, as we have seen, sometimes seize upon the benefit of a doubt to declare himself in the opposite sense. He did not approve of the Sherman Anti-Trust Act and had no sympathy with the Volstead Act, which deprived him of the bottle of champagne which it had always been his ritual to drink with his wife on the occasion of their wedding anniversary. If the business men made the laws, he would have to accept their authority; if the people should decide to vote for socialism, he would have to accept that, too—and it was always from the point of view of assessing this latter possibility that he did his occasional reading in the literature of socialism.

So Holmes achieved isolation, remaining unperturbed and lucid, through the whole turbid blatant period that followed the Civil War—with its miseries of an industrial life that was reducing white factory workers to the slavery which George Fitzhugh had predicted, with its millionaires as arrogant and brutal as any Carolina planters, with the violent clashes between them as bloody as Nat Turner's rebellion or John Brown's raid upon Kansas, with its wars in Cuba and Europe that were our next uncontrollable moves after the war by which we had wrested California from the Mexicans and the war by which we had compelled the South to submit to the Washington government. These events touched him only at secondhand in the cases that came up before his tribunal and which elicited his crystalline opinions. His Brahminism, his high-minded egoism and his philosophic temper of mind had equipped him with an impenetrable integument.

Eventually the country at large came to join Holmes's colleagues in the law and his later-coming liberal admirers in assigning to him a consecrated authoritative role, though certainly the public in general knew as little about his work and ideas as they had when he was appointed to the Supreme Court. It was partly, no doubt, the prestige of longevity when the ancient has retained his faculties, partly the feeling of awe—of which I have spoken in connection with Lee—inspired by the rare survival of the type of the republican Roman, irrespective of what he now stands for: Justice Holmes was perhaps the last Roman. But there was also, I think, something more which was not inconsistent with these. The popular feeling about Holmes was illustrated in a striking and touching way in the reception by Eastern audiences, sixteen years after Holmes's death (in 1951), of a rubbishy film about him with the title The Magnificent Yankee. It was significant that what most moved these audiences were not the parts that were personal and sentimental but the scenes, all too few and inept, in which the hero's moral courage was shown. They seemed to be responding to these with a special enthusiasm of reassurance because they were made to feel—at a moment of the national life particularly uncertain and uncomfortable: the end of Truman's second administration—the Korean War, the Hiss trial, the rise of McCarthy—that here was a just man, a man of the old America who, having proved himself early in the Civil War, had persisted and continued to function through everything that had happened since, and had triumphed in remaining faithful to some kind of traditional ideal. But what was this ideal they applauded? I have tried to make out what Holmes meant to them. Independence and fair-dealing, no doubt; rectitude and courage as a public official; and a conviction that the United States had a special meaning and mission to devote one's whole life to which was a sufficient dedication for the highest gifts.

Was this Holmes's own understanding of the "job" to which he found himself committed? When he died in 1935 at the age of ninety-four, it appeared that he had left bequests of $25,000 each to Harvard and to the Boston Museum of Fine Arts, but all the rest of his very modest fortune—something over $270,000—to the government of the United States. There was much speculation over this. It was true that his wife was dead, that, childless, he had not even any relatives to whom such a sum might have been useful. But why had he not bequeathed it to Harvard Law School or some other institution to be used for some specific purpose? I have heard two quite different explanations, both suggested by younger men who had seen a good deal of Holmes. One felt that his failure to do this was due simply to a lack of imagination. Having rarely, so far as is known, given a penny to a cause or a charity, indifferent to the improvement of others while preoccupied with the improvement of himself, it never came into Holmes's head to contribute to the usefulness of an institution. The other of Holmes's friends believed that, on the contrary, there was a definite point in Holmes's disposal of his money. He had fought for the Union; he had mastered its laws; he had served in its highest court through a period of three decades. The American Constitution was, as he came to declare, an "experiment"—what was to come of our democratic society it was impossible for a philosopher to tell—but he had taken responsibility for its working, he had subsisted and achieved his fame through his tenure of the place it had given him; and he returned to the treasury of the Union the little that he had to leave.

G. Edward White (essay date 1971)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 10966

SOURCE: "The Rise and Fall of Justice Holmes," in The University of Chicago Law Review, Vol. 39, No. 1, Fall, 1971, pp. 51-77.

[In the following essay, White follows Holmes's image in America, from his extreme popularity to the later disillusionment about his ideals widely adopted after his death.]

Occasionally the American nation sees itself in the life of one of its citizens. Something about the experiences, background, attitudes, or accomplishments of an individual seems particularly evocative of American culture, or at least a vision thereof. Such a life was that of Justice Oliver Wendell Holmes. In addition to being a man of great popular appeal,1 Holmes has held considerable interest for the intellectual community. From the publication of Holmes's The Common Law in 1881 until the present day, legal scholars, philosophers, political scientists, historians, literary critics, and journalists2 have attempted to understand and articulate the qualities that have made Holmes, in their eyes, an especially noteworthy representative of American civilization. This article traces the changing image of one man in the eyes of American intellectuals through the years—the "rise and fall" of Justice Holmes.

I. INTRODUCTION

American intellectuals have focused on Holmes in three capacities: as Brahmin, as ideologue, and as stylist. The shifting image of Holmes in the American scholarly community reflects changes in the attitude of intellectuals toward Holmes in each capacity.

The term Brahmin suggests Holmes's close association with a Boston tradition of social privilege and intellectual enterprise. During the twenty years following Holmes's birth in 1841, Boston and its surrounding countryside produced the first major concentration of intellectual activity in American history. The individuals who made contributions, which ranged from discoveries in natural science to poetry, were from wealthy or socially respectable families. Many had traveled to Europe in their youth, some for educational purposes; many had attended Harvard College, some also reading law for a time; a distinct minority, such as the Adamses, had served in the government.3

Of those names associated with Brahminism—Parkman, Agassiz, James, Lowell, Emerson, Longfellow, Parker, to list some—that of Holmes was among the most celebrated. At his son's birth Dr. Oliver Wendell Holmes, Sr. had already gained notice for an emotional appeal on behalf of the threatened U.S. Constitution.4 During Holmes's youth his father had enhanced his professional status with an influential paper on puerperal fever5 and ultimately emerged as the leading social historian of his time with the publication of The Autocrat of the Breakfast Table.6 The success of the elder Holmes and the equal success of Holmes, Jr. in a different area of endeavor, coupled with an unmistakable tension between father and son,7 has served as a starting point for scholarly explorations into the relationship between Holmes and his heritage. The explorations have revealed a relationship rich in ambiguities.

The Brahmins were "gentlemen" at a time when that style of life was still considered a profession. Gentlemanliness stood not only for educated refinement in intellect, taste, and culture, but also for snobbishness and class consciousness. There is abundant evidence that Holmes was as fastidious, clubbish, and condescending as any of his peers.8 Moreover, he possessed high intellectual standards and was generally critical of even those works he considered worth reading.9 He also held rather elitist political views, confessing late in his life that the only justification he found for a government's undertaking to rectify social ills was "an aristocratic assumption that you know what is good for them better than they (which no doubt you do)."10

Alongside these aristocratic characteristics, however, existed counter-tendencies. After a convivial youth as Harvard undergraduate and clubman, Holmes largely withdrew from social contacts with his peers for approximately ten years. He had virtually no intimate friends during his adult life, but his major correspondence friendships were with non-Brahmins. Although he fervently desired to make an intellectual name for himself before his fortieth birthday,11 he was contemptuous of his father's role as all-purpose man of letters.12 If Holmes favored government by elites, he believed in sharply curtailing the powers of the elitist judicial branch;13 if he "loathe[d] the thick-fingered clowns we call the people . . . —vulgar, selfish, and base,"14 he praised "that instinct that makes the American unable to meet his fellow man otherwise than simply as a man."15

Holmes's ideology was as ambiguous as his identification with his heritage. He emerged from adolescence an agnostic and an opponent both of time-honored moral pieties and of inexorable axioms governing scholarship. Later in his life, his agnosticism merged with a theory of government that stressed the importance of power relationships. Nevertheless, he retained an apparently passionate devotion to the act of believing in ideals—as distinguished from any particular ideals themselves—and a faith in the redeeming powers of social evolution. The combination of these potentially contradictory precepts has confounded those who have studied Holmes as ideologue. The "nutshell" words for Holmes abound: positivist,16 Darwinist,17 skeptic,18 cynic,19 idealist,20 romanticist,21 mystic,22 progressive,23 patriot.24 Each suggests an aspect of his thought, but no one word can accurately describe the whole.

Holmes has been equally interesting to American intellectuals as a judicial stylist. In a profession in which the mode of expression characteristically has been technical, formal, depersonalized, and restrained, Holmes's opinions are remarkable for their absence of technicalities, their informality, their liveliness, and their poetic flights of language. Holmes's style is better described as a deviation from the judicial norm than as an improvement on it. If clarity, precision, and "reasoned elaboration"25 can be said to be ideals of judicial opinion writing, Holmes appears to have eschewed these goals in the pursuit of terseness and ambiguity. His opinions have been called as difficult to understand as they are easy to read.26

In each of the above capacities, then, Holmes is not only interesting but controversial. As Brahmin, he provokes comment at two levels: his position evokes the tension of social privilege and intellectual superiority in an increasingly socially mobile and mass-educated society; his behavior contains the emotional conflict inherent in a man rejecting his social heritage. As ideologue, his stances raise a series of questions, among them whether power should be the controlling basis of social arrangements and whether social evolution is inevitable. As stylist, his method of judicial communication invites inquiries as to the value of a decision-making process that expresses its conclusions by unelaborated formulae.

The ambiguities and controversy surrounding Holmes have emerged as his image has changed in the eyes of the American intellectual community. Commentators have woven his thoughts and attitudes into their own social, political, or intellectual preoccupations. As those preoccupations have shifted, the image of Holmes has changed accordingly.

II. THE CHANGING IMAGE OF JUSTICE HOLMES

Holmes's image may be evaluated in six time segments: (1) 1881 (publication of The Common Law) to 1902 (appointment to the Supreme Court), (2) 1903 to 1931 (retirement from the bench), (3) 1932 to 1940, (4) 1941 to 1949, (5) 1950 to 1959, and (6) 1960 to the present. Broadly speaking, each time segment is marked by a dominant intellectual attitude; these attitudes I have termed scientism, progressivism, hero worship, demythology, a sense of alienation, and libertarianism-egalitarianism. The time segments are, of course, only approximations for the sake of convenience, since changes in intellectual attitudes do not occur with chronological precision. The segments are intended to convey a general sense of the points in time at which one overriding perception of Holmes began to be replaced by another, rather than to demarcate any abrupt changes in intellectual attitude.

The term "image," as used in this article, is a construct representing the perceptions of a variety of articulate individuals about a public figure. Like any construct employed to derive collective meaning from individual attitudes, it is imperfect. This imperfection flows from the diversity of intellectual viewpoints during any historical period. The primary purposes of this investigation of Holmes's reputation are to emphasize the complexity of the process by which the reputation of a judge is established and to demonstrate the way in which the image of a man is shaped by the attitudes of his critics.

A. 1881-1902: Holmes as Scientist

The late nineteenth century intelligensia in America were obsessed with what would now be known as model building. Religious and spiritual principles appeared to them to have been made obsolete by more measurable rules of science. The universe, they had discovered, could be explained in terms of recurrent, predictable phenomena such as evolution and competition. Holmes's The Common Law, his contemporaries felt, was in the mainstream of the scientific movement in that it systematized jurisprudence on the basis of observable social phenomena rather than through intellectual abstractions. The theories advanced by Holmes, such as the external standard of liability in tort law, were said to rest on "a series of scientific observations" and were thought to indicate "the advance which the common law is now making toward a more scientific structure than it has ever before possessed."27 By announcing that the felt necessities of the time governed the formulation of policy in the courts, Holmes was setting forth a tangible set of materials on which to erect a jurisprudential system, hence bringing "the . . . office of the courts . . . into unaccustomed clearness."28 By 1899 a commentator announced that The Common Law was "everywhere regarded as a scientific work."29

Scientism, in the late nineteenth century, was intellectual radicalism, since it attempted to shift the source of scholarly axioms away from the intuitions and abstractions of an educated elite of religious believers. To believe in science was to challenge established faiths. Insofar as it questioned a set of traditional social values, scientism was associated with political radicalism, and there were those who thought that Holmes had tendencies in this direction. In 1899 two law reviews labeled Holmes a radical, pointing particularly to his dissent in Vegelahn v. Guntner,30 in which Holmes had disassociated himself from a majority ruling upholding an injunction prohibiting peaceful picketing by strikers and had announced that "combination [on the part of labor] is a necessary and desirable counterpart [of combination on the part of capital] if the battle is to be carried on in a fair and equal way."31 Reviewers found such "radical" language "strange . . . from a man of [Holmes's] environments."32

Late nineteenth century intellectuals were most interested in Holmes as ideologue. His privileged social position was not regarded as significant to commentators—the only negative remarks made about Holmes's heritage were issued by Wendell Phillips, himself a Brahmin, who complained in 1895 about the unfortunate tendency of Holmes and other of his contemporaries to equate war with heroism.33 As a stylist, Holmes suffered from too facile an identification with his father. Those who attempted to analyze his opinions or writings invariably prefaced their remarks with a reference to the literary contributions of Dr. Holmes. At his sixtieth birthday, after twenty years on the Massachusetts bench, Holmes had not fully emerged as a unique and original figure. What reputation he had made for himself by 1902 flowed mainly from his efforts to make the study of the law more scientific.

B. 1903-1931: Holmes as Progressive

The late nineteenth century intellectual community insisted that formal logical arguments rest on a more scientific foundation than intuitive personal insights, but it was by no means prepared to abandon the use of abstract, deductive reasoning as an academic and pedagogic tool. Syllogistic reasoning from assumed intellectual principles represented the primary mode of thought and expression of the time. After 1900, however, not only the content of particular academic axioms but the formalistic reasoning process itself came increasingly under attack.34Antiformalism in the early twentieth century intellectual community was a manifestation of the broader ideological movement known as progressivism. Progressivism emphasized the constantly changing nature of society and the need for testing social propositions and intellectual theories on the basis of contemporary experience. It resisted abstractions that could not be shown to be responsive to modern social conditions and was consequently hostile to intellectual discourse that appeared to rest on untested or untestable assumptions. In particular, progressivism denied the existence of permanent "laws" that governed intellectual disciplines. It preferred dominant academic or ideological trends to emerge through a process of experimentation whereby those ideas or policies that proved useful in achieving "progress" achieved dominant status until they were replaced by still more "progressive" concepts.35

In its political form, the progressive movement believed in the management of government by experts responsible to but not deferential toward the public. Progressives sought to expand the public sector of government in order to substitute decision making by an educated, efficient group of impartial administrators for decision making by partisan representatives of special interest groups. Progressive public policy envisaged the expansion of the executive branch of government, primarily in the form of administrative regulatory agencies, at the expense of Congress and the courts. Progressives urged federal or state legislation that attempted to create executive regulatory schemes and demanded a large measure of judicial tolerance for such legislation. They were particularly incensed at the attempts by judges to substitute nineteenth century economic axioms for empirical analyses of contemporary economic conditions.36

The reexamination of American social values stimulated by progressivism led ultimately to a reexamination of the movement itself. In its early years, at the opening of the twentieth century, the movement simultaneously embraced empirical relativism and moral absolutism, advocating social change in accordance with time-honored standards of behavior, such as honesty, industry, and temperance. But as its adherents became more impressed with the impermanence of ideas and institutions, they came to question the inviolability of their once-cherished moral principles. The result was a sweeping attack on the dominant social mores of the late nineteenth century, which were dismissed as "Victorian" and "Puritan."

Holmes's career on the Supreme Court coincided with the dominance of progressivism as an intellectual force in American life. His relationship with the movement itself was complex. Insofar as progressivism meant social or political reform, Holmes had little sympathy for the movement. In 1915 he told John Wigmore that "the squashy sentimentalism of a big minority of our people about human life" made him "puke." Among that minority Holmes placed those "who believe in the upward and onward—who talk of uplift, who think that something particular has happened and that the universe is no longer predatory."37 Holmes continued to believe in nineteenth century concepts of classical economics, which the progressives repudiated, and nineteenth century social theories, such as that proposed by Malthus, which assumed an inherent imperfectibility in the bulk of mankind. He failed to share in any degree the progressives' faith in man's innate goodness or their missionary zeal to inculcate others with their moral beliefs. He remained throughout his life supremely indifferent to social welfare schemes of any sort, with the possible exception of eugencies.38

Nevertheless, the progressives found Holmes an especially attractive and sympathetic judicial figure and contributed to the growth of his stature. By an accident of history, Holmes ascended the Supreme Court bench at a time when a series of constitutional issues were before the Court that progressives considered to be of great importance. The issues involved the constitutionality of state and federal legislative schemes, such as workmen's compensation and wages-and-hours regulation, in which governmental bodies asserted control over private economic relationships. This power the progressives regarded as essential to their campaign to reduce the influence of "special interests." In a series of opinions from 1903 to 1923, Holmes announced his willingness to tolerate legislative experiments and his contempt for judges who used constitutional provisions to further their own social or economic prejudices.39 The paradigmatic situation Holmes addressed in these years was that posed by Lochner v. New York,40 in which Justice Peckham, for the majority, had found a New York statute establishing maximum work hours for bakers inconsistent with the due process clause of the fourteenth amendment because it interfered with the right of laborers to work as many hours as they wished. Holmes found Peckham's position to be an artificial application of the so-called liberty-of-contract doctrine41 in the face of conditions in the baking industry that rendered that doctrine meaningless. He stressed the reasonableness of beliefs on the part of New York legislators that the working environment of bakers was deleterious to their health and deferred to these beliefs, without endorsing the soundness of the maximum hours law itself.

Progressives considered Holmes's exposure of the deficiencies of abstract judicial reasoning and his tolerance for the programs of legislative majorities to be manifestations of judicial statesmanship of the highest order. In a series of articles, Felix Frankfurter celebrated Holmes for his ability to separate his personal views from his legal opinions, for his resistance to doctrinaire interpretation, for his understanding of social and economic forces, and for his willingness to allow legislative experimentation.42 Frankfurter's opinions were echoed by oth ers, including James Tufts,43 Roscoe Pound,44 and John Dewey.45 Praising Holmes's grasp of "economic forces," Charles Carpenter declared in 1929 that "no judge who has sat upon the bench has ever been more progressive in his attitude."46 Walter Wheeler Cook and Jerome Frank saw in Holmes's interpretation of his office the advent of a new school of jurisprudence. Cook asked rhetorically in 1921: "How many . . . among law teachers, not to mention judges and practicing lawyers, . . . 'consider the ends which [legal] rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price?'" "[M]uch missionary work remains to be done," Cook maintained, "before the methods of legal thinking exemplified [by Holmes] become characteristic of. . . the leaders of the legal profession."47 Frank, nine years later, hailed Holmes for "abandon[ing], once and for all, the phantasy of a perfect, consistent, legal uniformity. . . ." "As a conse quence," Frank felt, "whatever clear [sense] of legal realities we have attained in this country in the past twenty-five years is in large measure due to him. . . . [Holmes] has developed that remarkable tolerance which is the mark of high maturity. . . . His legal skepticism is clear, sane, vital, progressive. . . ."48

One of the social issues to which progressives turned their attention was the place of social privilege in American society. On one level, progressivism was a movement to expand the classes of beneficiaries of governmental reforms and consequently to achieve a more egalitarian society. On another, it represented a reentry of social and intellectual elites into positions of public influence. In specific reforms such as the conservation movement, progressive rhetoric emphasized the importance of diffusing the power of monopolists and of improving the life style of small farmers, while progressive programs envisaged the management of conservation programs by an educated elite of technocrats.49 In general terms, social privilege was not itself regarded as an evil by progressives, provided that individuals of high status demonstrated a sense of social responsibility and a concern for the less fortunate classes.

With some strain, early twentieth century commentators sought to demonstrate these qualities in Holmes. They attempted this through association of Holmes with two symbols: the socially conscious Puritan and the aristocrat as democrat. The first symbol was an artful redefinition of Puritanism. For early twentieth century American intellectuals, Puritanism symbolized a moral rigidity and parochialism that came increasingly to be considered oldfashioned. But it also suggested an adherence to the dictates of one's conscience. Certain supporters of Holmes tended to stress his social conscience, which they linked to his Puritan heritage. They insisted that Holmes was "a Puritan whom doubt had civilized" so that his "Puritan strength" appeared not as a religious dogma but as a "simple conviction" that the democratic ideals of American civilization should be upheld.50 Life for Holmes was "a rich but a responsible adventure" in which the "natural Puritan aristocracy" functioned as caretakers of democracy.51

Thus Holmes, especially during his last years on the bench, came to be considered "an aristocrat with a genuine interest in the welfare of the common man."52 Those attracted to the symbol of Holmes as an aristocratic democrat emphasized the social implications of his free speech opinions. In these cases the defendants whose rights Holmes championed were conspicuously disadvantaged persons, being impoverished immigrants.53

Holmes's style was not controversial among members of the early twentieth century intellectual community. Their overriding concern was that judicial opinions not exhibit the abstract reasoning characterized by Roscoe Pound as "mechanical jurisprudence";54 on this point Holmes's opinions were eminently satisfying, since they eschewed that process altogether. Holmes's tendency toward formulaic expression was seen by commentators as fresh rather than cryptic. Judge Benjamin Cardozo, himself an aspiring stylist, remarked that "one almost writhes in despair at the futility . . . of imitation or approach" upon confronting Holmes's "pointed phrases."55

In his metamorphosis from scientist to progressive, Holmes stood on the threshold of deification. He stepped from his father's shadow by transcending his privileged background through tolerance and sympathy for thoughts and life styles foreign to his own. To observers of progressive persuasion his sense of the impermanency of ideas and intellectual axioms became "realism" or "sociological jurisprudence"; his willingness to defer to the wishes of those holding positions of political power became a belief in social experimentation; his tendency to believe that social upheavals were infrequent and that words alone rarely threatened the fabric of society became a faith in free speech; his general indifference to social problems and political issues became enlightened judicial self-restraint. He lacked only a historical vindication of his attitudes toward judicial decision making and political arrangements—which, after 1931, he received.

C. 1932-1940: Holmes as Myth

Reviewing in 1941 the ten years that had passed since Holmes's retirement, Walton Hamilton found that Holmes had emerged as a "deity . . . an Olympian who in judgment could do no wrong. His opinions were norms by which to measure the departures of his Court from the true path of the law." "The neat phrase, the quotable line," Hamilton observed, "were ultimates; and beauty of form was commuted into wisdom of utterance. For the Court, but especially in dissent, thus spake Holmes and the subject was closed."56 The years from 1932 to 1940 witnessed the apotheosis of Holmes. His human qualities were enhanced in the eyes of the world: the moving radio address on his ninetieth birthday;57 the gracious retirement, accompanied by a memorable letter to his fellow justices;58 the tranquil declining years when, to one observer, his face fairly glowed with an inner radiance.59His death, three days short of his ninety-fourth birthday, was cause for inspired reflection—here was a life that could be said to have been fully lived, in terms of both longevity and accomplishment.

Other elements contributed to the deification of Holmes. At a time when economic privilege was in disrepute but gracious life styles retained a romantic attraction,60 Holmes's role as transcendant Brahmin maintained its fascination. His brand of jurisprudence was labeled "realistic;" it served as an inspiration for legal scholars who desired to publicize the human and institutional factors operative in judicial decision making and to eradicate once and for all deductive logic from the judging process.61 His tolerance for experiments in legislation and his relativist approach to ideas contrasted sharply with the stubborn absolutism of the Justices who struck down New Deal legislative programs. As the primary responsibility for reform shifted from the states to the federal government, those who believed that a vast expansion of federal power and activity was needed to save the nation imagined that Holmes would have supported their efforts. He thus became a liberal as well as a realist.

The transcendant Brahmin theme was popularized by the appearance in 1932 of the first full-length biography of Holmes, written by the journalist Silas Bent. Holmes, for Bent, expanded the Puritan view of human nature—that man is inherently selfish—to a "noble conception of a realistic and rationalized science of law." He "perceived that jealousy and envy . . . were in fact when sublimated the basis of human justice." As a consequence, he came to advocate a mode of lawmaking that gave each man fair scope to pursue his own self-interest. Bent saw this as evidence that Holmes had "freed himself from the group loyalties and prejudices and passions which are a heritage of those reared in the security of the genteel tradition." "Never," he maintained, "was aristocrat less class-conscious."62 Others pursued this tack. "Of the many achievements of Justice Holmes," Adolf Berle wrote in 1935, "none is more glorious than that of transcending the bounds of his apparent emotional security."63 Augustin Derby, a former clerk to Holmes, found him "the most democratic of men, . . . entirely without pose."64

If Bent polished Holmes's image as aristocratic democrat, Karl Llewellyn served a similar function in the emergence of Holmes as realist. Llewellyn had himself been one of the early and major spokesmen for realism—in 1930 and 1931 he had written law review articles that announced the emergence of a realistic jurisprudence which combined a sense of the sterility and artificiality of legal rules with a belief in the importance of manipulation and rationalization in governmental decision making.65 This point of view was not original, Llewellyn maintained; "Holmes' mind had travelled most of the road two generations back."66

By the date of Holmes's death, realism had become a major intellectual force among American legal scholars. Llewellyn took the occasion to pay tribute to the contribution of Holmes to the movement. Because of Holmes's work, Llewellyn maintained, "it is no longer heresy to argue that judges have 'molecular' law-making power. . . . It is . . . no longer heresy to argue that there is no brooding omnipresence in the skies, but that the true measure of law . . . is: what, in particular, can or will anybody do about it, here and now? It is no longer heresy to see constitutional law as a field in which economic forces, prejudices and personalities play in an intricate, semi-concealed game, law, politics and statesmanship together. . . ."67

The most compelling image of Holmes in the nine years after 1931, however, was that of liberal. The major representation of him in that role was made by Felix Frankfurter in Mr. Justice Holmes and the Supreme Court, published in 1938. Frankfurter had himself made the transition from progressive to New Dealer without strain68—he saw the experiments of the Roosevelt administrations as enlightened recognition of the need to adjust social policies pragmatically in order to meet the demands of an increasingly complex civilization. In Frankfurter's view, Holmes "threw the weight of his authority on the side of social readjustments through legislation." Holmes analyzed "with . . . clarity the governing elements in the modern economic struggle," Frankfurter maintained, "[and] found nothing in the Constitution to prevent legislation which sought to remove some of the more obvious inequalities in the distribution of economic power." He "[did not] believe that there was anything in the Constitution to bar even a conscious use of the taxing power for readjusting the social equilibrium." He "was loath to find a governmental vacuum . . . where there was no intersection of federal and state authority."69 In short, Holmes was an ancestral New Dealer, as he had been for Llewellyn an ancestral realist.

The intellectual community of the 1930s was quick to support Frankfurter's interpretation. Perhaps the most enthusiastic acclaim came from the New York Times, which described Holmes as the "liberal and lovable philosopher" whose "scores of opinions . . . testif[ied] to his liberalism"70 and who was "known through the world for his liberal interpretations of the law in cases involving property rights and personal rights."71 Upon Holmes's death the Times called him the "chief liberal of [the] supreme bench for 29 years."72

The 1930s thus saw Holmes elevated to demigod by the intellectual community.73 If he had been "the idol of the progressives who believed that America must evolve and change,"74 he was even more revered by the reformers of the 1930s, who had added to their criteria for statesmanship a commitment to majoritarian relativism and a "realistic" approach to social planning. Although he symbolized the grandeur of a more distant, and for some a more gentlemanly, era, he also appeared—particularly in light of the Court-packing crisis and the "switch in time"—distinctly a man of the times.

D. 1941-1949: Demythologizing

Holmes's reputation had been too closely linked to an implicit set of social priorities not to be altered with the replacement of that set by another. His unequivocal deference to the whims of majorities was destined to become a subject of controversy as the intellectual community lost faith in the judgment of sheer numbers. As early as 1919 it had been suggested that Holmes believed "that there can be . . . no standard of evaluation except the principle that might makes right."75 In 1940 Lon Fuller had pursued a similar line of analysis in observing that Holmes's influence as a judge "fell far short of being commensurate with his general intellectual stature." Fuller attributed this condition to Holmes's "notion that the law is something severable from one's notions of what it ought to be."76 The absence of any overriding set of moral values in Holmes's jurisprudence caused increasing anxiety in the intellectual community after 1941, when ideals of civilization and justice seemed challenged in a variety of ways by the Axis powers.

The most sensational manifestation of this anxiety was a series of articles by Jesuit theologians and law professors which linked Holmes's ideology with that of totalitarian regimes. Between 1941 and 1943, four critiques of this nature appeared. Two of the articles, written by Francis Lucey, attempted to show that Holmes's philosophy was "akin to Hitler's" and that if adopted "would be the death knell of our democracy."77 For Holmes, Lucey main tained, "there [were] no moral oughts, . . . just plain, unadulterated physical force of the majority imposing itself on all." "If . . . Holmes was correct," Lucey concluded, "Hitler is correct."78 John Ford published a similar piece in 1942 which summarized Holmes's thought as follows: "The essence of law is physical force. Might makes legal right. The law is to be divorced from all morality. There is no such thing as a moral ought—it is a mere fiction. . . . There is no absolute truth. . . . There is too much fuss about the sanctity of human life. To the state man is a means to be sacrificed if necessary in the interest of the state. The ultimate arbiter of all life is physical force." These attitudes scandalized Ford, who saw them as the ultimate rationale for facist and communist dictatorships.79 The fourth such critique of Holmes, written by Paul Gregg, equated Holmes's "pragmatism"—a philosophy which for Gregg assumed that "ideas, logic, reason, morals, and all else, are merely tools by which plans of action are forged and made to work"—with "the latest social experiment in Nazi Germany." "Who can say," Gregg asked, "that the United States, at some future time, will not be dominated by bureaucrats whose social philosophy is kindred to that of Hitler, Goering, Goebbels, and Himmler?" "[T]otalitarianism and dictatorship," Gregg felt, "can live and flourish under pragmatism. . . . If totalitarianism ever becomes the form of American government, its leaders, no doubt, will canonize as one of the patron saints Mr. Justice Holmes. For his popularization of the pragmatic philosophy of law has done much to pave the way."80

The ideas advanced in these four articles were popularized by Ben Palmer in an essay entitled "Hobbes, Holmes, and Hitler," which appeared in the American Bar Association Journal in 1945. In Palmer's view, "the fact that Holmes was a polished gentleman who did not go about like a storm-trooper knocking people down and proclaiming the supremacy of the blonde beast should not blind us to his legal philosophy that might makes right, that law is the command of the dominant social group." Holmes's jurisprudence, for Palmer, sanctioned "the iron fist of absolute power wielded without possibility of external restraint because of any protest of impotent individuals or minorities." "If totalitarianism comes to America," Palmer maintained, ". . . it will come through dominance in the judiciary of men who have accepted a philosophy of law that has . . . its fruition in implications from the philosophy of Holmes."81

The association of Holmes with totalitarianism sparked a debate that was, in its ramifications, to preoccupy legal scholars in America for a further decade. At the core of the debate was the question whether the American legal system embodied any absolute moral principles or whether it merely exemplified contemporary social norms. In the 1940s it seemed especially distressing for American intellectuals, particularly those of a religious persuasion, to deny that lawmaking in the United States flowed from unalterable humanitarian principles. In other parts of the world, denial of such standards seemed to have created patently inhumane governments. America had made a commitment to combat these nations, and philosophies that assumed that "whatever works is right" appeared intolerable to those who supported this struggle.

The Jesuit attack on Holmes, then, was an extreme manifestation of a general tendency of intellectuals in the 1940s to reassess Holmes's philosophy in relation to their own thinking. At a time when "pragmatism" and "realism" had evolved, in some circles, from words suggesting progressive social reform to words heralding the coming of totalitarianism, one group of Holmes's critics maintained that such labels were inadequate to describe the breadth and depth of his character. These critics defended Holmes by emphasizing the complexities and contradictions in his thought. Daniel Boorstin suggested in a 1941 article that "the inadequacy of labels like 'liberal' and 'conservative' quickly appears" in describing Holmes. "In his earnestness to encompass all philosophies and yet to commit himself to none," Boorstin maintained, Holmes made "his personal world of ideas" one "of doubt and conflict." He "clearly felt the tug of opposing forces": his "New England conservative tradition" and his "intensely liberal individuality."82 Max Lerner noted in Holmes "a deep conflict between skepticism and belief, between mind and faith, between a recognition that men act in terms of a cold calculation of interests, and a recognition also that they are moved by symbols." Holmes tried, in Lerner's view, "to construct a philosophy of life for himself which would allow him to take account of both strains."83 Francis Biddle referred to Holmes's "dualism of skeptic and moralist, of doubter and preacher." "He distrusted affirmations," Biddle felt, "yet . . . made them with an oversimplification that was only partially concealed by the form of witty aphorism which they usually took."84

To be sure, the 1940s were marked by some older images of Holmes. Felix Frankfurter persisted in emphasizing Holmes's ability to "transcend his emotional attachments." "New Englander of New Englanders in his feelings all his life," Frankfurter wrote of Holmes in 1944, "[he] disciplined himself against any kind of parochialism in his thinking. . . . He reached the democratic result by . . . his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest."85 Morton White maintained that Holmes was "a serious comrade-in-arms of the liberal, progressive, and professional movement for reform" and felt that his "intellectual outlook was permeated with a good many of the ideas that were stirring the liberals of his time."86 But the tone of the commentators had altered. If the Jesuit critics and their popularizers were regarded as aberrational, they nonetheless symbolized an unconscious decision by American intellectuals to, as Walton Hamilton put it, "elevate Mr. Justice Holmes from deity to mortality."87From that decision emerged a complex image of Holmes as a man whose thought and character contained contradictory forces and whose apparently facile self-assurance masked the considerable strain he must have felt in attempting to reconcile them. If the passions of the warscarred 1940s stimulated some of the most savage evaluations of Holmes, they also generated some of the most mature.

E. 1950-1959: Sense of Alienation

Whatever Holmes had been to American intellectuals from 1880 through the 1940s, he had been relevant. His relationship to his heritage, his approach to constitutional issues, his jurisprudential principles had touched on powerful themes for the intellectual community. But after 1950, critics of Holmes tended increasingly to reveal their sense of the widening gulf between his world and theirs. The man who had been dateless for Hamilton in 1941 suddenly became dated.

The decade commenced with a continuation of the impassioned debate that had begun in the 1940s. Harold McKinnon denounced Holmes's philosophy as "a symbol of our intellectual wretchedness, a conspicuous example of our abandonment of those spiritual, philosophical and moral truths that have been the life of the western tradition."88 Father Lucey also returned to the attack, again comparing Holmes to Hitler.89 Supporters of Holmes continued to defend him. Fred Rodell wrote that "Holmes took pains to make clear . . . that his skepticism had never bred in him the cynicism of defeat and despair, and that, in the realm of ought-to-be, he held strong moral and ethical views concerning decency and justice among mankind."90 Mark DeWolfe Howe stated that Holmes "did not deny that a primary source of law is the realm of moral standards in which society has its being, and . . . considered the first responsibility of the lawyer and judge to be that of bringing the law into conformity with those moral standards." Howe's essay was colored by a sense that his generation was affected by concerns that had not affected Holmes. The adverse criticism of Holmes's skepticism, Howe felt, was "partly the result of the glimpse which Hitler gave us of cynicism triumphant. We have begun to ask ourselves whether, despite Holmes, there are not some standards of decency so fundamental and so permanent that they may properly be described as absolute." Having experienced a sense of the depths of man's inhumanity to man, Howe and his contemporaries of the 1950s were not, in his judgment, "intellectually willing and emotionally able to accept that total skepticism which led Holmes to question whether man has a cosmic significance 'different in kind from that which belongs to a baboon or a grain of sand.'"91 They needed to believe that moral principles buttressed the universe; that civilization imposed limits on man's behavior. "Holmes' words are read now," Henry Hart wrote in 1951, "when the foundations of all things are being reexamined. The moral claims of settled law in a constitutional democracy must not today be overlooked."92 Holmes himself had not experienced the horrors of a wholly amoral world. Charles Wyzanski emphasized Holmes's faith in the ultimate triumph of reason. Wyzanski attributed this faith to the fact that "Holmes wrote before the world had fully appreciated the wickedness of which civilized man is capable. He knew not the Nazi concentration camps . . . nor the Communist disciplined subordination of man's interest in truth to man's interest in material progress."93

Intellectuals of the 1950s thus felt that Holmes's conclusions were founded on assumptions about the nature of man that differed from their own. This view led critics to treat him as a figure from another age, an approach that occasionally led to debunking94 or redefinition95 of his political views. In the main, however, alienation from Holmes took the form of attempts to place him at a distant point in time. This was the major thrust of the three principal books written about Holmes in the 1950s; Henry Steel Commager's The American Mind, Samuel Konefsky's The Legacy of Holmes and Brandeis, and Mark DeWolfe Howe's Mr. Justice Holmes: The Shaping Years. Commager identified Holmes with "the progressive movement['s] . . . inability to fulfill itself without imposing far reaching readjustments upon the legal mechanics of economy."96 Konefsky found Holmes "backward" and "singularly static" in "his conception of the economic universe" and maintained that his thought was "filled with a good many fallacies and superficial preconceptions which he assumed to be basic truths," including his "imperturbable confidence in the capacity of society to defy artificial meddling with its natural evolution."97 Howe saw Holmes's aesthetic judgment as "responsive to older modes of expression and earlier moods of feeling." His biography of Holmes, Howe observed, was largely "an essay in intellectual history."98

The works of the 1950s presented a composite picture of Holmes as a man whose thought failed, despite its breadth, to encompass the problems of mid-twentieth century existence. A series of inevitabilities ruled Holmes's world: iron economic laws, natural selection of ideas and social policies, the continual progress of civilization. These inevitabilities marked the thought of an older age where, in light of a series of consoling faiths, men could afford to be skeptical. Life in the mature twentieth century, in the minds of American intellectuals, encouraged no such faiths.

F. 1960—: Holmes and Libertarianism-Egalitarianism

In the 1960s, attention turned to the problems caused by the inequalities and diversities among Americans. Integration—racial, psychological, cultural—became a dominant concept as the decade opened. Intellectuals emphasized once more the responsibilities of elites to those less privileged and stressed the fundamental values—liberty, democracy, egalitarianism, impartial justice—that bound Americans together. Critics of Holmes asked again whether he had understood the social obligations of leadership or the consensual values embedded in the process of lawmaking in America. Their answer, by and large, was negative on both counts. Critics alleged that as both a man and a judge Holmes had been indifferent to the needs of the underprivileged. They pointed to the distance Holmes felt between himself and less socially and intellectually privileged Americans, and to his apparent lack of concern for civil-liberties interests in certain cases.

"It would be easy . . . to create the impression," Edmund Wilson wrote of Holmes in 1962, "that [he] was an egregious social snob of a peculiarly provincial kind."99 Commentators on Holmes as Brahmin did occasionally attempt to foster that impression,100 but they were far more concerned with what Wilson called the "carapace of impenetrable indifference to current pressures and public opinion" in Holmes, "due partly to the impregnable security of belonging to the Boston 'Brahmin' caste."101 Distance, withdrawal, isolation, and detachment became the chief aspects of Holmes's Brahminism that interested critics. Mark DeWolfe Howe emphasized Holmes's prolonged withdrawal from society and his feeling that his destiny lay in areas, such as scholarship, that were isolated from the world at large.102 Yosal Rogat accentuated Holmes's "preoccupation with the theme of the observer—the spectator." "[His] participation in public, and perhaps even in private, experience had an attentuated quality," Rogat wrote, "and [he] withdrew, perhaps consciously, from important areas of shared human experience."103 Saul Touster provided a charitable explanation for Holmes's Brahmin detachment. "Holmes," Touster maintained, "was . . . a profoundly injured spirit." "The deadening of sympathetic feelings, the Olympian aloofness, the spectator view, . . . the disbelief in causes" were devices "by which he somehow [could] gain distance from the world." Touster found that Holmes's "expressions of sympathy and doubt and feelings for the distress of the Negro were suppressed" in his later life; "suppression of feeling," he maintained, "may be the product not of the absence of feeling, but an excess of it."104

Others in the 1960s viewed aloofness in Holmes less sympathetically. Francis Biddle, in an otherwise laudatory assessment, described Holmes as "an aristocrat and a conservative" who "had little sympathy with the sufferings and failures of mankind, and no urgent desire to change their lot."105 Rogat felt that "to a remarkable degree, Holmes simply did not care. . . . Precisely because he thought that 'the crowd' was unwise, he expected them to destroy the way of life that he preferred. But he would have thought it immature to be deeply concerned about that imminent destruction."106 Robert Faulkner saw Holmes's skepticism and deference to majority views as manifestations of "a certain disdain toward minorities and the weak generally."107

For intellectuals of the 1960s, belief in certain fundamental guarantees of equal treatment for minorities and certain permanent individual rights was an important aspect of enlightened social thought. In the context of their own full-blown libertarianism-egalitarianism, representatives of the American intellectual community found Holmes's response to civil liberties shocking. Rogat, the leading critic, set out to disprove the widely held belief that Holmes was a champion of civil liberties. In cases involving "various claims to civil and political rights that arose out of the Civil War Amendments," for example, Rogat maintained that Holmes was "consistent" in "denying the claimed right" and "weighed the substantive claim to equality lightly." In alien cases Holmes "wrote as if anyone seeking entry was merely a suppliant." "Nowhere" did he "help in framing a remedy to secure a constitutional right. He did not develop further any inchoate right or liberty, or broaden the scope of those which were already established." In short, Rogat found that "the accepted image of Holmes as uniquely libertarian owes more to fantasies unloosed by the attractiveness of his personality than to the realities of his career." Holmes's striking insensitivity to civil rights and liberties stemmed, Rogat maintained, from a "fundamentally impoverished account of legal phenomena." He "did not sufficiently distinguish a crude system of social control, resting on naked power, from a distinctively legal method of control." He seemed "never . . . to have perceived, and certainly never acknowledged, the extent to which general commitments to fairness, generality and neutrality are built into the idea of legality and constitute part of its meaning. . . . Holmes spoke as if a legal sysem were simply a mechanism to enforce by whatever means, the desires of the dominant group," ignoring the extent to which law in America was premised on notions of equitable attention to the needs of minorities and guarantees of equal justice.108

Faulkner also found that an "orientation by moral and political ends [was] absent from Holmes' jurisprudence." Holmes, for Faulkner, "left vacant [the] essence [of judicial decision making]: a reasonable view of what constitutes justice in America." The "besetting and deepest flaw of Holmes' thought" was a tendency to prefer abstractions to "humane ends." Instead of giving attention to the pressing needs of interests at particular points in time, Faulkner argued, Holmes subscribed to a "fundamentally optimistic fatalism" which allowed history to usurp the role of the judge in doing justice. Holmes believed, according to Faulkner, that "man's interests are automatically ever better served. . . ." "[He] presupposed . . . the justice of history."109

Critics of the 1960s expanded the concept of civil liberty in finding Holmes wanting as a civil libertarian. Writers of the 1920s and 1930s who had hailed Holmes as a champion of civil liberties had made assumptions about the nature of rights in civilized society different from those made by their counterparts in the 1960s. They had assumed that liberties—such as that of contract and that of speech—were not absolutes, but were subsumed in the consensual values of contemporary America. Their view was that expressed by Justice Brandeis in two decisions in 1921: "Rights . . . must be remoulded, from time to time, to meet the changing needs of society."110 "All rights derive from the purposes of the society in which they exist; above all rights rises duty to the community."111 They considered Holmes a libertarian because in certain decisions he had protected freedom of speech where it did not immediately threaten national interests. For Holmes, the liberty flowed not from any inherent right of the individual but from the interest of society in a free flow of ideas. By the 1960s, however, the standard of libertarianism had altered; a social definition of civil rights seemed inequitable. Racial equality seemed to demand a philosophical definition that provided for the inherent equality of individuals and the absolute nature of human rights. No longer could society have one standard of rights for one set of persons and a second for another—that constituted a deprivation of inalienable guaranties. In this context Holmes's easy approval of majoritarian discriminations against minorities appeared unconscionably nonlibertarian.

The 1960s marked the nadir of Holmes's image. Critics seemed unwilling to undertake charitable interpretations of any of his characteristics: his Brahminism was considered snobbishness, diffidence, and insensitivity; his ideological presuppositions were thought to exhibit both a shocking indifference to humanitarian values and a complacent insularity about the inevitability of progress. The great repute in which Holmes had been held in earlier years seemed to critics of the 1960s to be a glaring example of the distasteful set of values that had dominated American civilization in their immediate past. The ideal they held of a society whose guardians perceived the democratic and egalitarian principles at its core clashed with qualities and beliefs they found in Holmes.

III. HOLMES AND THE CRITICS: A CONCLUDING ASSESSMENT

Despite its diversity, the critical literature on Holmes almost uniformly fails to assess him on his own historical terms. Holmes was, first and foremost, a late nineteenth century intellectual radical. He was concerned with smashing existing fixed systems of the universe and substituting a fluid one. The Common Law was his most telling work—it was critical of the quasi-religious formalistic logic of his time and supportive of two fluid organizing concepts, history and community values. At the close of the nineteenth century, Holmes attempted through science to make the concept of community values a tangible, measureable one. In this task he foreshadowed the efforts of social planners in the early twentieth century. But as that century dawned, Holmes gave up his effort and came to rest on the belief that the universe was unknowable, that ultimate values were in the end merely personal prejudices, and that change comes through the fluctuating superiority of such prejudices. Ultimately his ideology presumed an open and ever-changing system of intellectual intercourse—an unregulated market of ideas. This was his famous skepticism.

Because Holmes equated prevailing social values and ideals with prejudices, his ideology was profoundly apolitical. Late nineteenth century commentators made the mistake of identifying his intellectual radicalism with political radicalism. The progressives also erred in thinking that since Holmes believed in fluidity and change, he, like they, ascribed a positive value to change. But in giving up any belief in scientific measurement of social desires, Holmes had also given up a faith in the ability of social planners to achieve progress through an enlightened reordering of social priorities. If beliefs could not be measured, he felt, they could not be ranked. He thus rested on "what the crowd wants." The progressives, in contrast, wanted to educate the "crowd" to desire those things that the progressives believed right-thinking twentieth century Americans should desire.

The hero worshippers of the 1930s made a similar error in their evaluations of Holmes. They ascribed to him the positive as well as the negative components of attitudes, whereas Holmes held only the negative. Because Holmes believed that ideas should have free expression—a belief he often justified by saying that the process of airing those ideas would convince people of their absurdity—and because some of his free speech decisions had involved members of minority groups, Holmes became a protector of minorities and a transcendant Brahmin. His approach to free speech, in fact, assumed the ultimate impotence of all forms of unpopular expression. Because Holmes was critical of nineteenth century judicial formalism and had demonstrated a consciousness of the element of bias in judicial decision making, he was said to support the whole of realism. But Holmes did not believe that psychology was the major component of decision making, and he opposed the kind of empirical internal study of institutions that the realists advocated. Because Holmes had taken a passive stance toward state experimentive schemes in the 1910s and 1920s, critics of the 1930s assumed that he would be not only equally passive toward the federal programs of the New Deal, but sympathetic to what the New Deal represented. But Holmes had never been enthusiastic about paternalistic legislation. He took a fatalistic view of man's nature and muttered about who was going to "pay the bill."

The demythologizers of the 1940s, though more sensitive than their earlier predecessors to the complexities in Holmes, still regarded him as "dateless." His apolitical, laissez faire skepticism was read as the equivalent of those bogeys of the 1940s, pragmatism and totalitarianism. Only in the 1950s did intellectuals begin to see a gap between Holmes's universe and their own. This perception appeared largely in the form of strained efforts to make him "moral" in 1950s terms—to show that had he comprehended the horror of totalitarian regimes he would have demonstrated greater concern for political values.

The critics of the 1960s continued to view Holmes through the lens of contemporary events. Their annoyance at his apparent absence of concern for libertarian principles rested on an expanded definition of liberties. Like the progressives, writers of the 1960s matched all previous eras against their own; Holmes, whose thought was shaped in a world that had far different notions of "liberty" and "equality," was destined to fall short of their standards.

But if Holmes asks, on one level, to be judged by the standards of his age, he invites, on another level, judgment by a more timeless standard: the capacity for being human. Here one finds a disturbing dissonance between Holmes's very conspicuous social and professional success—it is hard to imagine a life less marred by physical, social, or economic deprivations or one marked by a greater length and breadth of achievement—and his gloomy musings that "the crowd has substantially all there is,"112 that "we all are very near despair,"113 that men are like "flies,"114 and that man has no more cosmic significance than a baboon or a grain of sand.115 The specter of the eminent Holmes uttering such misanthropy smacks of the "old cardinal" prose of Henry Adams that Holmes himself decried.116

Holmes's skepticism appears to have been less a striving for a positive goal than a facile means of avoiding commitment, whether to beliefs institutions, or mankind itself. One is struck by the comments of Holmes that he had remained childless because he could not bear bringing children into the world and because he preferred the less-involved paternalism he felt for his law clerks.117 These statements suggest a desire to evade the responsibilities and emotional attachments of close involvement with other human beings, or perhaps the adoption of a misanthropic pose to prevent others from probing into areas of his life in which he felt vulnerable.

It is disappointing to find a man who was fortunate enough to be made aware in his lifetime of the full measure of his accomplishment (how many men are able to hear themselves called "the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages"118?), yet who seemed to be so indifferent, at times savagely so, to the lives of his fellow mortals. To be sure, Holmes had his values—civilization, the martial virtues, and, in his own sense, democracy and even liberty. He also had high standards of intellectual performance. But the richness of his mind, the power of his intellect, and even the depth of his feelings tended to degenerate into a cranky negativism that, given his stature, seems peculiarly distasteful. It is Holmes's articulated refusal to take pride in being human that marks him as one of the least "heroic" of America's heroes.

NOTES

1 Holmes has been the only Supreme Court Justice in American history whose life has been the subject of a Broadway play, The Magnificent Yankee, which appeared in 1951.

2 The enumerated groups compose the "American intellectual community" for the purposes of this essay. Journalists include writers for the New York Times, the New York Herald Tribune, the Christian Science Monitor, and certain periodicals of popular scholarship, such as the Nation and the New Republic.

3See generally V. Brooks, The Flowering of New England (1936).

4 O.W. Holmes, Sr., Old Ironsides, Boston Daily Advertiser, Sept. 16, 1830.

5 O.W. Holmes, Sr., The Contagiousness of Puerperal Fever, New England J. Medicine and Surgery, Apr., 1843.

6 O.W. Holmes, Sr., The Autocrat of the Breakfast Table (1858); see M. Howe, Holmes of the Breakfast Table (1939).

7See C. Bowen, Yankee From Olympus (1943); M. Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841-1870 (1957).

8See Hamilton, On Dating Justice Holmes, 9 U. Chi. L. Rev. 1 (1941); Kurland, Portrait of the Jurist as a Young Mind, 25 U. Chi. L. Rev. 206 (1957); Llewellyn, Holmes, 35 Colum. L. Rev. 485 (1935); Sergeant, Oliver Wendell Holmes, 49 New Republic 59 (1926).

9 Hamilton, supra note 8; Llewellyn, supra note 8.

10 Letter from Oliver Wendell Holmes to Harold Laski, July 23, 1925, in 1 Holmes-Laski Letters 762 (M. Howe ed. 1953).

11 M. Howe, Justice Oliver Wendell Holmes: The Proving Years, 1870-1882 (1963).

12 M. Howe, supra note 7, at 19-21.

13E.g., Lochner v. New York, 198 U.S. 45, 74 (1905) (dissenting opinion).

14 Quoted in Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr. 71 (M. Howe ed. 1947).

15 Quoted in The Occasional Speeches of Justice Oliver Wendell Holmes 25 (M. Howe ed. 1962).

16 Howe, The Positivism of Mr. Justice Holmes, 64 Harv. L. Rev. 529 (1951).

17 Rogat, Mr. Justice Holmes: A Dissenting Opinion, 15 Stan. L. Rev. 3, 254 (1963).

18 M. Lerner The Mind and Faith of Justice Holmes (1943).

19 Mencken, The Great Holmes Mystery, 26 American Mercury 123 (1932).

20 M. Howe, supra note 7.

21Id.

22 Boorstin, The Elusiveness of Mr. Justice Holmes, 14 New England Q. 478 (1941).

23 R. Faulkner, The Jurisprudence of John Marshall 227-28 (1968).

24 Villard, Issues and Men: The Great Judge, 140 Nation 323 (1935).

25Cf. H. Hart & A. Sacks, The Legal Process (tentative ed. 1958).

26 Rogat, supra note 17, at 9-10.

27 Book Review, 26 Albany L. J. 484, 486 (1882).

28 Book Review, 15 Am. L. Rev. 331 (1881).

29 Note, 33 Am. L. Rev. 753, 754 (1899).

30 167 Mass. 92, 104 (1896).

31 Id. at 108.

32 Note, Judge Holmes' Opinions, 60 Albany L. J. 118 (1899).

33 Phillips, Sentimental Jingoism, 61 Nation 440 (1895).

34Cf. M. White Social Thought in America (1968).

35Cf. D. Noble, The Paradox of Progressive Thought (1958).

36Cf. White, The Social Values of the Progressives: Some New Perspectives, 70 S. Atlantic Q. 62 (1971).

37 Quoted in M. Howe, supra note 7, at 25.

38Cf. Rogat, supra note 17, at 282-89.

39Eg., Adkins v. Children's Hospital, 261 U.S. 525, 567 (1923) (dissenting opinion); Truax v. Corrigan, 257 U.S. 312, 342 (1921) (dissenting opinion); Hammer v. Dagenhart, 247 U.S. 251, 277 (1918) (dissenting opinion); Adair v. United States, 208 U.S. 161, 190 (1908) (dissenting opinion); Lochner v. New York, 198 U.S. 45, 74 (1905) (dissenting opinion); Otis v. Parker, 187 U.S. 606 (1903).

40 198 U.S. 45 (1905).

41Cf. Pound, Liberty of Contract, 18 Yale L. J. 454 (1909).

42 Frankfurter, The Constitutional Opinions of Mr. Justice Holmes, 29 Harv. L. Rev. 683, 691, 693, 694 (1916); Frankfurter, Twenty Years of Mr. Justice Holmes' Constitutional Opinions, 36 Harv. L. Rev. 909, 927, 929 (1923); Frankfurter, Mr. Justice Holmes and the Constitution, 41 Harv. L. Rev. 121, 132, 134 (1927).

43 "Holmes has . . . firmly set himself against a slack universe of legal conceptions and a rigidly fixed social order" and "has sought to give man room to express his advancing needs in an orderly progressing society." Tufts, The Legal and Social Philosophy of Mr. Justice Holmes, 7 A.B.A.J. 359 (1921).

44 Pound discussed Holmes's "conscious facing of the problem of harmonizing or compromising conflicting or overlapping interests. . . . " Pound, 'Judge Holmes's' Contributions to the Science of Law, 34 Harv. L. Rev. 449, 450 (1921).

45 Dewey stressed Holmes's "impatience with the attempt to settle matters of social policy by dialectic reasoning from fixed concepts" and his "faith that . . . our social system is one of experimentation, subject to the ordeal of experienced consequences." Dewey, Justice Holmes and the Liberal Mind, 53 New Republic 210, 211 (1928).

46 Carpenter, Oliver Wendell Holmes, Jurist, 8 ORE. L. REV. 269, 270 (1929).

47 Cook, Book Review, 30 Yale L. J. 775, 776 (1921).

48 J. Frank, Law and the Modern Mind 253, 257, 259 (1930).

49Cf. G. White, The Eastern Establishment and the Western Experience (1968).

50 Littell, Books and Things, 3 New Republic 100 (1915).

51 Sergeant, Oliver Wendell Holmes, 49 New Republic 59, 60 (1926).

52 Pollard, Justice Holmes, Champion of the Common Man, N.Y. Times, Dec. 1, 1929, Sec. 4, at 4, col. 1.

53E.g., United States v. Schwimmer, 279 U.S. 644, 653 (1929) (dissenting opinion); Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616, 624 (1919) (dissenting opinion). In the correspondence attendant upon the Schwimmer decision, in which WASP militarist Holmes made courteous replies to the tributes of Russian Jewish pacifist Rosika Schwimmer, readers saw another manifestation of the Brahmin's tolerance for ideologies and life styles alien to his own. See Sergeant, supra note 51, at 60.

54 Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 605 (1908).

55 Cardozo, Mr. Justice Holmes, 44 Harv. L. Rev. 682, 689 (1931).

56 Hamilton, supra note 8.

57 Reprinted in Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers 142 (H. Shriver ed. 1936).

58Id. at 143.

59 C. Bowen, Yankee From Olympus 413 (1943).

60Cf. D. Wecter, The Great Depression (1948).

61Cf. W. Rumble, American Legal Realism (1965).

62 S. Bent, Justice Oliver Wendell Holmes (1932).

63 Berle, Justice Holmes: Liberal, 24 Survey Graphic 178 (1935).

64 Derby, Recollections of Mr. Justice Holmes, 12 N.Y.U.L.Q. Rev. 345, 345-46 (1935). Max Lerner called Holmes "the very perfection and flowering of the New England aristocracy." Lerner, Book Review, 46 Yale L. J. 904, 908 (1937). Morris Cohen found him to have "intellectual power and the true liberal attitude that enabled him to rise above his hereditary class prejudices." Cohen, Justice Holmes, 82 New Republic 206, 207 (1935).

65E.g., Llewellyn, A Realistic JurisprudenceThe Next Step, 30 Colum. L. Rev. 431 (1930); Llewellyn, Some Realism About Realism, 44 Harv. L. Rev. 1222 (1931).

66 Llewellyn, supra note 65, at 454.

67 Llewellyn, Holmes, 35 Colum. L. Rev. 485, 487-88 (1935).

68 The transition was not so easy for others; many progressives parted company with the New Deal. See O. Graham, Jr., An Encore for Reform (1967).

69 F. Frankfurter, Mr. Justice Holmes and the Supreme Court 44, 36-37, 43, 86 (1938).

70N.Y. Times, Jan. 13, 1932, 1, at 3, col. 4.

71Id. at col. 6.

72N.Y. Times, Mar. 6, 1935, 1, at 1, cols. 2-3.

73 Amidst the shower of praise for Holmes in the 1930s came an occasionally querulous or critical note, foreshadowing a later shift in tone. H.L. Mencken felt that there was "no evidence in Holmes' decisions that he ever gave any really profound thought to the great battle of ideas that raged in his time." Holmes had "no . . . genuine belief in democracy," Mencken argued, and his decisions demonstrated "a widespread and beautiful inconsistency." Further, the "peculiar salacity" of Holmes's opinions, which made them "interesting as literature," derived in Mencken's opinion from an "easy-going cynicism." Holmes, Mencken felt, "had a considerable talent for epigrams," and when "once his mood had brought him to this or that judgment the announcement of it was sometimes more than a little affected by purely literary impulse. . . . [T]he result was . . . now and then . . . far more literature than law." Mencken, The Great Holmes Mystery, 26 American Mercury 123, 124 (1932). Kenneth Reiblich, in a 1939 analysis of Holmes's conflict-oflaws opinions, found that "certain concepts seemed to be accepted [by Holmes] as apriori truths and applied with little indication of the realism which one might have expected to find." Reiblich found puzzling the "conviction that Mr. Justice Holmes, the liberal and realist, becomes in conflict of laws the conservative and conceptualist." Reiblich, The Conflict of Laws Philosophy of Mr. Justice Holmes, 28 GEO. L.J. 1, 12, 20-21 (1939). Meanwhile, Walter Nelles and Samuel Mermin had concluded that "in his approach to labor questions Holmes was free from all such sentimentality as is expressed in talk of 'human rights' or 'brotherhood of man.' There was no humanitarian softness in his head." Nelles & Mermin, Holmes and Labor Law, 13 N.Y.U.L.Q. Rev. 517 (1936).

74 Villard, Issues and Men: The Great Judge, 140 Nation 323 (1935).

75 Bode, Justice Holmes, Natural Law, and the Moral Ideal, 29 Internati J. Ethics 397 (1919).

76 L. Fuller, The Law in Quest of Itself 62-63 (1940).

77 Lucey, Jurisprudence and the Future Social Order, 16 Social Sci. 211 (1941).

78 Lucey, Natural Law and American Legal Realism 30 Geo. L. J. 493, 512, 531 (1942).

79 Ford, The Fundamentals of Holmes' Juristic Philosophy, 11 Fordham L Rev. 255. 275 (1942).

80 Gregg, The Pragmatism of Mr. Justice Holmes, 31 Geo. L. J. 262, 284, 293, 294 (1943).

81 Palmer, Hobbes, Holmes, and Hitler, 31 A.B.A.J. 569, 571-73 (1945).

82 Boorstin, The Elusiveness of Mr. Justice Holmes, 14 New England Q. 478, 480-81 (1941).

83 M. Lerner, The Mind and Faith of Justice Holmes 373 (1943).

84 F. Biddle, Mr. Justice Holmes 95 (1942).

85 Frankfurter, Oliver Wendell Holmes, 21 Dictionary of American Biography 417, 423 (1944).

86 M. White, supra note 34, at 104, 74.

87 Hamilton, supra note 8, at 1.

88 McKinnon, The Secret of Mr. Justice Holmes, 36 A.B.A.J. 261, 345 (1950).

89 Lucey, HolmesLiberalHumanitarianBeliever in Democracy?, 39 Geo. L. J. 523, 548, 553 (1951).

90 Rodell, Justice Holmes and His Hecklers, 60 Yale L. J. 620, 623 (1951).

91 Howe, The Positivism of Mr. Justice Holmes, 64 Harv. L. Rev. 529, 544-45 (1951).

92 Hart, Holmes' PositivismAn Addendum, 64 Harv. L. Rev. 929, 937 (1951).

93 Wyzanski, The Democracy of Justice Oliver Wendell Holmes, 7 Vand. L. Rev. 311, 319 (1954).

94 Martin Hickman's "reappraisal" of Holmes revealed "a man arrogant beyond the ordinary, a man of narrow and oligarchical sympathies," whose "indulgence of the legislature . . . rested at least as much on contempt as on tolerance." The stereotype of Holmes that he "was a champion of free speech and civil rights, that he was compassionate and solicitous for the defenseless," Hickman argued, was not supported by "an examination of the cases." There "is a hollow ring to the finely turned phrases." Hickman, Mr. Justice Holmes: A Reappraisal, 5 W. Pol. Q. 66, 83, 73 (1952). Merle Pusey, in his biography of Charles Evans Hughes, wrote that the "Holmes whom the judges knew had little in common with the humanitarian crusader of the same name who has so often been extolled in print. Holmes' brethren knew that he didn't care a straw for the 'social' or 'progressive' legislation that he was said to be heroically defending. . . . [They] were well aware of his scorn for any deviation from the result he thought the law required because that result might be 'unjust' to the individuals concerned." I. M. Pusey, Charles Evans Hughes 287, 289 (1951).

95 Irving Bernstein announced that the "cherished American myth . . . that Oliver Wendell Holmes was a liberal" was "as baseless as the tale of Washington and the cherry tree." Holmes, according to Bernstein, was "as profound, as civilized, and articulate a conservative as the United States has produced." He was "a firm believer in capitalism who looked with distrust upon governmental intervention in economic life. Monopolies won his respect, while he regarded unions and strikes suspiciously. . . . Movements seeking the reform or reconstruction of economic society won his distrust. . . . Free speech for Holmes was a Darwinian arena in which ideas would struggle for survival. It was at the same time a prop of a conservative society." Bernstein, The Conservative Justice Holmes, 23 New England Q. 435, 445, 449 (1950).

96 H. S. Commager, The American Mind 874 (1950).

97 S. Konefsky, The Legacy of Holmes and Brandeis 59, 24, 64, 303 (1956).

98 M. Howe, supra note 7, at 10, vi.

99 E. Wilson, Patriotic Gore 784 (1962).

100E.g., Rogat, The Judge as Spectator, 31 U. Chi. L. Rev. 213, 230 (1964).

101 E. Wilson, supra note 99, at 782-83.

102 M. Howe, supra note 11, at 1-8, 256 (1963).

103 Rogat, supra note 100, at 230.

104 Touster, In Search of Holmes From Within, 18 Vand. L. Rev. 437, 470, 450-51 (1965).

105 F. Biddle, Justice Holmes, Natural Law and the Supreme Court 7 (1961).

106 Rogat, supra note 100, at 255.

107 R. Faulkner, The Jurisprudence of John Marshall 253 (1968).

108 Rogat, supra note 17, at 254-55, 24, 305, 308; Rogat, supra note 100, at 225.

109 R. Faulkner, supra note 107, at 264-65, 263, 247-49.

110 Truax v. Corrigan, 257 U.S. 312, 376 (1921).

111 Duplex Co. v. Deering, 254 U.S. 443, 488 (1921).

112 1 Holmes-Laski Lftters 207 (M. Howe ed. 1953).

113 O. W. Holmes, Collected Legal Papers 248 (1920).

114 2 Holmes-Laski Letters 946 (M. Howe ed. 1953).

115Cf. Howe, supra note 91.

116 Rogat, supra note 100, at 230-31.

117 Letter and Memorandum from Learned Hand to Mark De Wolfe Howe, Apr. 29, 1959, in M. Howe, supra note 102, at 8; Derby, supra note 64, at 352.

118 Cardozo, Mr. Justice Holmes, 44 Harv. L. Rev. 682, 684 (1931).

G. Edward White (essay date 1976)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 11523

SOURCE: "The Integrity of Holmes' Jurisprudence," in Intervention and Detachment: Essays in Legal History and Jurisprudence, Oxford University Press, 1994, pp. 75-99.

[In the following essay, White traces the concurrence of the tenures of Justices Holmes and Louis Brandeis with the rise of modern judicial liberalism. ]

A sharp distinction between "nineteenth-century" and "twentieth-century" phases of the American judicial tradition has some artificial features. Older jurisprudential attitudes and theories of judging persisted after 1900; their persistence, in fact, is one of the features of American judicial history in the twentieth century. The striking twentieth-century changes in the intellectual climate in which judicial decisions were made, discussed in this [essay], . . . should not create an inference that the nineteenth century, by contrast, was static in its jurisprudence; the difference is one of degree. Finally, the prominence given in this [essay] to modern liberalism as a force helping to redefine judicial attitudes cannot. . . be read as suggesting that an ideological dimension to judging in America is peculiar to the twentieth century.

Nonetheless, a major reorientation of the American judicial tradition did occur sometime shortly after 1900. The oracular theory of judging ceased to be regarded as a universal principle, eventually became a minority view-point, and subsequently lost academic respectability altogether. Although none of the basic challenges of appellate judging in America disappeared, the intellectual context in which they were faced was altered. That process of alteration was part of a more general re-examination of attitudes and values in America, out of which emerged the ideology of modern liberalism.

The standard referents for political thought during most of the twentieth century have been the terms "conservatism" and "liberalism." So ubiquitous has been their usage that they have ceased to function as sharp characterizations and have become symbolic instruments of rhetoric. The incorporation of the term "liberalism" into our contemporary vocabulary in this fashion has some historical significance, since the term had, at its modern origins, a precise and revolutionary meaning. It had suggested then a radically new ideological perspective, based on a rejection of longstanding assumptions about the way in which society ought to be organized and on the creation of a novel relation between the individual citizen and his government. "Liberalism" has lost its original meaning largely because its premises have become so widely and loosely accepted. Before the 1920s the term, in its modern sense, was barely known; by the 1950s it was academically respectable to argue that liberalism had been the dominant ideology in the history of American civilization.1

The origins of modern liberalism in America coincided with the Supreme Court tenures of Justices Oliver Wendell Holmes and Louis Brandeis. The coincidence was accidental but of great import. The social thought of Holmes and Brandeis was not decisively affected by the emergence of twentieth-century liberalism, nor were their interpretations of their office markedly influenced by any desire to act as models of modern liberal judges. But the advent of liberalism provided critics of the judiciary with a new perspective from which to evaluate judicial performance. This perspective revealed innovative and contemporary elements in the jurisprudence of Holmes and of Brandeis and led to their apotheosis as heroic liberal judges.

I

Modern liberalism began in America with an insight, which dawned around the outbreak of World War I and revived in the 1920s, that the cultural unity of American civilization was disintegrating. There were numerous diverse manifestations of this perception, ranging from nervous reaffirmations of the purity of Anglo-Saxon America to attacks upon traditional symbols of virtue and respectability.2 Linking these myriad forms of protest was a feeling that the core values of American culture had become meaningless slogans, capable of countless selfserving interpretations and hence no longer capable of functioning as a code of honorable behavior. As though for the first time, skeptics of the period saw that every unifying value engendered its own countervalue: morality begat hypocrisy; progress, exploitation; religiosity, bigotry; refinement, snobbishness; democracy, philistinism. As older consensual values became tarnished, former success models became figures of irony and pathos. The captain of industry, the self-made man, and the super-salesman were each regarded as having had a part in creating the stock market crash of 1929 and the ensuing depression.

Another perception followed from the original consciousness of value disintegration. Mature industrialism had created inequities and left a residue of victims. While rewarding a large segment of the nation's citizens, it had ignored or hurt other segments. It had not, for instance, eradicated poverty, or measurably improved the welfare of industrial laborers, or helped the increased percentage of elderly persons, or improved the quality of rural life. For these groups, progress had not necessarily been beneficial; for them industrialization had not brought success.

Over time, the sense of a wholesale loss of consensual American values merged with the perception of the costs of industrial progress to produce an affirmative ideology that supplanted the scattered "reform" movements of the late nineteenth and early twentieth centuries. The chief catalyst in the appearance of modern liberalism as a positive social philosophy in America was the crisis produced by the Depression of the 1930s. That crisis gave an immediacy to reform proposals that had been articulated in the 1920s by persons such as the advocates of a welfare state in Great Britain.3 The principal innovation of modern liberalism was its utilization of the state as an agent to fill the void left by consensual value disintegration. The state, in this role, became a permanent force for social planning, order, and enlightened progress, substituting its administrative procedures for the discredited set of traditional values. It articulated common national goals by fiat and conceived and executed social policies consistent with those goals. The goals were not elaborately linked to consensual values; they were more often the tentative formulations of those who managed the state. The pursuit of social goals represented a form of coerced coherence necessitated by crisis and the dissolution of a previous value consensus.

Liberalism, at the time of its origin, represented a modification of some of the tenets of preceding reform movements in the light of a twentieth-century crisis in values. It retained a belief in an active, positive government; it also supported expansion of the class of government wards and beneficiaries. But it modified many of the substantive assumptions of advocates of one or another form of paternalism, embodying them, if at all, in standards of fair procedure. A comparison of liberalism with populism and the early-twentieth-century reform movement of progressivism illustrates the modifications. The populists and progressives both supported legislation intended to benefit industrial laborers; so did the liberals of the New Deal. The rhetorical emphasis of the first two groups was on removing the conditions—such as excessive size in industrial corporations and exploitation of workers by employers—that prevented workers from achieving freedom and independence in their jobs. The rhetorical emphasis of liberalism was on securing for industrial workers a forum, through unionization and collective bargaining, in which their interests could be fairly and equally represented. For populists or progressives, reform often had a moral content, evidenced in idealized roles for its beneficiaries, such as that of free and independent yeomen for industrial workers. Liberal reformers were not so much concerned with the life-style or moral character of those whose causes they supported as with insuring them a fair opportunity to air their grievances and promote their own self-interests.4Although the idea of professionals in government was first articulated in the twentieth century by progressives, liberals gave it a new interpretation. The progressives, borrowing notions advanced by late-nineteenth-century elite reformers, argued that the presence in government of persons of high social and economic status would stimulate a revival of moral values because such persons would be above corruption and beyond the influence of special interests.5 Liberals, though retaining a belief that government should be managed by elites, equated elite status more with technical and administrative expertise than with wealth or social position. This modification was in keeping with the assumption of modern liberals that professionalism's essential impact was to be felt in efficient and fair governmental procedures.

At its inception liberalism was an ideology based less on a commitment to shared values than on a response to their perceived disintegration. But as it evolved, its constant attention to the plight of casualties of progress became itself a value, often articulated as humanitarianism. As the victims of twentieth-century life came to include not only economic minorities but also ethnic, religious, or racial groups, a paradox developed. Humanitarianism compelled support for those whose minority status was made manifest by usurpations of their civil rights and liberties. Yet policies conceived and implemented by governmental officials inevitably produced such usurpations. What was the proper liberal response to government suppression of dissident speech in wartime, to wartime incarceration of naturalized American citizens who had retained or previously held citizenship in an enemy nation, to the invasion of welfare recipients' privacy by government agencies? Liberalism had as its major premise the validity of positive governmental intervention to further individual rights; what happened when the state acted to suppress them?

The paradoxes in modern liberalism were reflected in its ideals for judicial performance. On one hand, liberalism asked judges to reach results in keeping with the substantive values it cherished, such as those that sustained affirmative governmental action to alleviate economic and social inequalities or to help disadvantaged persons. On the other hand, liberalism asked judges to interpret their office in a professional manner—and by the 1920s judicial professionalism had taken on a new meaning. The model of judging embodied by Field had encountered strong criticism from legal scholars. The model permitted (so critics charged) an unwarranted imposition of the social and economic views of judges on the public at large. The apparent refusal of many members of the judiciary to respond to changed social conditions only exacerbated the situation.6 Indeed some states, thwarted by the courts in their attempts to enact social welfare legislation, had responded by imposing elective checks, such as recall, on the performance of their judges. Two early-twentieth-century jurisprudential theories, Sociological Jurisprudence and a then nameless one that was eventually called Realism, had gained prominence on the strength of arguments that judging was a highly politicized and idiosyncratic process and that effective judicial performance could come only from constant attention to the social context of decisions, a full recognition by judges of the role that bias played in decision-making, and serious efforts on the part of the judiciary to confine the scope of its powers.7

The stunning effect of this criticism, in terms of the history of appellate judging, was its discrediting of the oracular theory of judicial decision-making. Deference by the judiciary to legislative activity was required (the critique maintained) for the reason that law could be shaped in the process of judicial interpretation to harmonize with the predilections of the judge. To claim that judicial theories of social organization or economics were outmoded was to imply that the law could be made synonymous with the social attitudes of judges. The vast majority of nineteenth-century jurists had not ignored the fact that judges had social attitudes, but they had insisted on a separation of those attitudes from the fabric of the law itself. Discovering the law remained a process independent of one's personal convictions, despite the social ramifications of discoveries. Sociological Jurisprudence and Realism found the separation between "law" and the interpretations of its officials to be artificial. Realism eventually took the step of equating law with the idiosyncratic judgments of judges and other lawmakers, but this step was not necessary to discredit the oracular theory of judging. All that was needed was the triumph of the belief that judges were, even in a limited sense, lawmakers rather than simply law finders.

All these factors combined to make what came to be called judicial self-restraint an important professional value. Competent professionalism, as defined by a set of academic critics in the early twentieth century, demanded that judges abandon the use of their office to bar "excessively democratic" legislation. Such a response was grounded simply on bias and was therefore intellectually unjustifiable. The appellate judiciary should not substitute its views on social issues for those of the legislature; the latter branch was far better suited to perceive and respond to social change. Judicial professionalism, if not humanitarianism, thus dictated deference on the part of judges to the affirmative governmental actions supported by liberals.

From the time of Holmes's appointment to the Court in 1902 through Brandeis's appointment in 1916 to Holmes's retirement in 1932, the general tenets of liberalism and its double-edged mandate for the judiciary gained increasing acceptance. At the same time a large number of appellate judges, including a shifting majority of the Justices on the Supreme Court, continued to scrutinize and invalidate social welfare legislation, often using language that suggested a continued belief in the oracular theory of judging. In most instances the scrutinized legislation constituted an intervention in behalf of disadvantaged groups or individuals. From a liberal perspective, judicial self-restraint in such cases facilitated desirable results. For reasons primarily related to their approach to judging, Holmes and Brandeis both protested against judicial involvement in the great majority of such cases and were subsequently hailed as modern liberals.11In a smaller set of cases, the limits of government power to suppress individual rights were tested. Here the Holmes-Brandeis hegemony broke down, and differences between their jurisprudential views were revealed. In this latter group of cases their images as liberals became somewhat clouded, and some of the inherent contradictions in judicial liberalism were first exposed.

II

The conspicious advantages of Holmes's youth—his family being socially prominent, economically confortable, and at the center of Boston's intellectual community—only served to fire his ambition to divorce himself from his heritage and to distinguish himself in his own right. His father was not merely a competent physician and well-known poet but also a leading public figure of his time; he loved publicity, social companionship, and good conversation, and his public reputation was thereby so deeply entrenched that when the younger Holmes was appointed to the Supreme Court in 1902, at age sixtyone, he was chiefly described as Dr. Holmes's son.9 Holmes reacted early and sharply against the stature and impact of his father. He was as solitary and self-preoccupied as his father was garrulous; as serious and introspective as his father was effervescent and glib. Dr. Holmes thought his son given to "looking at life as a solemn show where he is only a spectator";10 William James, less charitable, found in him a "cold-blooded, conscious egotism and conceit."11 For his part, Holmes thought his father "largely distracted into easy talk and occasional verse": had Dr. Holmes been "less popular," said his son, "he might have produced a great work."12

In Holmes's college years he seemed eager to arrive at some organizing ideological or philosophical principle that would isolate his way of thinking from that of his family circle. He rejected his father's religious views and at one point believed that "an all-comprehending science has embraced the universe . . . generalizing and systematizing . . . every vagary of the human mind."13 In the 1850's, as the gap between North and South widened, Holmes became a rabid abolitionist and, when war came, enlisted in a regiment of Massachusetts volunteers in the Union army. Once at war, however, he found that life resisted a neat intellectual ordering and that the Tightness or wrongness of beliefs was largely irrelevant. From these experiences came the celebrated paradoxes on which Holmes built his mature philosophic stance. Searching for general principles was the ultimate in intellectual satisfaction, but no generalization was worth a damn; fighting for ideals was heroic, but ideals were meaningless in themselves.

One can see the presence of these paradoxes in Holmes's scholarship, written largely in the nineteenth century; in his general attitude toward the relation of governmental institutions to social change; and in his interpretation of his judicial office. In his most extensive and impressive piece of scholarship, The Common Law (1880), he adopted an analytical technique that was to become characteristic: exposure of the fallacies of a prevailing system of thought, substitution of a counter-system, denial of the "truth" of that counter-system. In The Common Law the discarded system was nineteenth-century "logic," by which Holmes meant the formalistic, religion-based logic that reasoned downward syllogistically from assumed truths about the universe; the proposed counter-system was "experience," the changing "felt necessities" that reflected current social values and were altered by time and circumstances. Yet experience did not always produce wisdom, and change was not always for the better; so Holmes's system was not a model for lawmaking but merely a fatalistic acceptance that law was not so much the embodiment of reason as a manifestation of dominant beliefs at a given time.

Similar messages were conveyed in his two other major contributions to legal scholarship of the nineteenth century. In an essay, "The Path of the Law," he denied that the law was "a system of reason" or a series of "deduction[s] from principles of ethics";14 it was simply an embodiment of the ends and purposes of a society at a given point in its history. One could study current social purposes and, by referring legal rules to them, better understand the course of legal development. One could not, however, treat some purposes as invariably true or timeless and erect a logical jurisprudence on them. In another essay, "Law in Science and Science in Law," he argued, in fact, that one could even measure, through the techniques of statistics and economics, the intensity of the "competing social desires" that clashed in a lawsuit and, having made that measurement, arrive at a decision that kept law "in accord with the wishes and feelings of the community." But science, though a helpful tool, could not be thought of as an ultimate organizing principle. There would probably never be, Holmes felt, a "commonwealth in which science [was] everywhere supreme." It was only "an ideal—but "without ideals what is life worth?"15

Holmes apparently never read a newspaper (at least in his later life), and kept informed on contemporary events mainly through correspondence and conversation. Although he once said that academic life was half-life, his life-style while a judge, particularly during his tenure on the Supreme Court, was cloistered, focused on intellectual pursuits, and entirely isolated from national government and politics. Yet Holmes had no difficulty forming opinions on current political issues and resolving, as a judge, delicate questions of government. So integrated and flexible was his philosophic stance that it could absorb new issues, ideals, and events without disturbing its essential balance.

Life, Holmes assumed, was in constant flux, ideals gaining and losing primacy; one could not alter this process, however devoted one was to a particular viewpoint. The temporary triumph or defeat of ideas was determined by the unregulated intellectual marketplace. Hence there was no harm in tolerating the expression of ideas but no guarantee that any idea could survive for all time. Since America was a republic, majority opinion determined the acceptability of views, and a majority had the right to impose its beliefs on minorities. The principal vehicle for majoritarian expression was the lawmaking branch of the government; legislative power, grounded on majoritarian sentiment, was therefore limitless. But a majoritarian power to suppress minority viewpoints could be exercised only when the activities or viewpoints of a minority could reasonably be said to subvert social goals espoused by the prevailing majority. Up to that point, dissenting actions or opinions were protected, since they had a right to enter the intellectual marketplace to become "popular" or to be confined to oblivion.

Accordingly, the legislative branch of government could suppress speech, but only if the speech in question were clearly subversive of majoritarian social goals.16 It could sterilize imbeciles if the ultimate eradication of mental defectives from the population were an end receiving majority support and if sterilization could reasonably be said to further that end.17 It could prevent aliens from owning guns if the belief of a majority that aliens were inclined more than citizens to violence could be deemed reasonable.18 A citizen might nonetheless campaign all his life against a war, in behalf of imbeciles, for equal treatment for aliens, or for the broader ideal of freedom to act and speak in a dissenting vein. American society had long recognized the latter ideal, and Holmes believed that he would be as willing as others had been to die for it." But at some point civilized living in America required the recognition that unpopular views were ultimately impotent because the sentiments of the majoritarians determined the path of the law; and short of revolution, the laws of a majority were to be obeyed.

If Holmes's polity worked smoothly, dissenting actions and viewpoints continually beat against the wall of majoritarianism, the majority acted against them, and clashes in "social desires" resulted. The resolution of these clashes was the task of the courts, which held the "sovereign prerogative of choice."20 But their freedom of choice was severely limited. To some extent, courts were bound by the choices of their predecessors; it was not generally the province of judges to "undertake to renovate the law."21 Even on those occasions when precedents gave no guidelines, a series of institutional constraints derived from Holmes's notion of majoritarian sovereignty limited judicial freedom. The judiciary, not being elected representatives of the majority, was [not] to substitute its views for those of legislatures. The judiciary did not necessarily protect even constitutional rights against legislative infringement. All individual rights, for Holmes, were ultimately held at majority sufferance. Vindication of a right that the majority chose to circumscribe required a revolution and the forcible installation of a new majority.

Over and over, in his years on the Supreme Court, Holmes sounded these themes. Paternalistic social-welfare legislation was challenged before the Court; Holmes, who liked to play the cranky Social Darwinist, muttered about the frivolity or foolishness of the legislation but upheld the legislature's power to enact it. This interpretation of the judicial function came to be called tolerant or self-restrained or even statesmanlike by Holmes's admirers. Holmes, professing disdain for the last appellation, privately coveted it.22

In the end Holmes's intellectual vantage point was compatible with the opposing impulses that lurked, unarticulated, within him. He felt pride in the democratic and egalitarian consciousness of Americans, yet he was an intellectual and social snob, contemptuous of the "crowd." His personal relations were marked by barriers and distance. The archetypal Holmes friendship was a correspondence friendship, with the other participant being inaccessible to Holmes except for occasional visits. Even the most persistent of his correspondents, such as Harold Laski, rarely got beyond a certain level of intimacy. When Laski proposed, after many years of letters, that he call Holmes by his first name, he was summarily rebuffed.

Although much of Holmes's communication with others was at the level of intellectual abstraction, he also had an earthy, bawdy side, which punctuated his talk and occasionally his writings and revealed itself in his covert private life. Much of the distinctiveness of Holmes's style came from his juxtaposition of earthy or homely language with abstract ideas; although he held the two impulses apart in his activities, in his thoughts they easily intermeshed. "I wonder," he once said, "if cosmically an idea is any more important than the bowels."23

The internal tensions in Holmes ultimately led him to a fatalistic dependence on paradox and impotence, and this formed the basis of his jurisprudence. Consciously or unconsciously, he perceived the opposing impulses in himself, and gave up attempting to reconcile them. Whether man was inherently evil or perfectible, whether change ever constituted progress, even whether he himself existed—a question he took seriously—were unanswerable riddles. The easy solution was to acknowledge "ultimate facts"—power, force, and change—and let the "goodness or badness of laws" turn on "what the crowd wants," even though the crowd, "if it knew," would not want what it did.24

III

Late in his career Holmes came increasingly to parallel Brandeis, who had joined Holmes on the Court in 1916, in his voting record on certain constitutional issues. Chief Justice William Howard Taft, who was never enthusiastic about Brandeis as a colleague, said that in his later years Holmes was "so completely under the control" of Brandeis that it gave Brandeis two votes instead of one.25 A 1927 press comment claimed that Holmes and Brandeis had "achieved a spiritual kinship that mark[ed] them off as a separate liberal chamber" of the Court.26 The kinship of Holmes and Brandeis was one of the accidents of history. Neither their temperaments nor their philosophies were similar; the congruence of their views was largely a matter of time and circumstance.

As a young man Brandeis coveted the symbols of Holmes's inheritance: social prestige, affluence, and access to the Boston intelligentsia. The son of German immigrants who had settled in Kentucky, he entered Harvard Law School at eighteen in 1875 and rapidly became entranced by the intellectual atmosphere of Cambridge, determining for himself the "rising lights" among his professors27 and "carefully not[ing] the names and addresses of eminent people."28 He felt, as a Southerner, a Jew, and not a college graduate, that gaps existed between himself and his peers; he strove to narrow those gaps by adopting the life-styles of those about him. He was successful enough in this endeavor to lay the groundwork for a prospective law partnership in Boston with Samuel Warren, a wealthy socialite, and to secure for himself and his wife, a Jew from New York, a moderate degree of acceptance on the part of Boston society.29

Once economically and socially comfortable, however, Brandeis did not blend into Holmes's world. He was mindful, as he said to a close friend, that "whatever I have achieved, or may achieve is my own, pure and simple, unassisted by the fortuitous circumstances of family influence or social position,"30 and he retained a distance from the life in the trappings of which he surrounded himself. He joined clubs in order to "captivate" potential clients,31 insisted that his wife adopt conventional upper-class dress standards, and dabbled in gentlemanly politics, such as civil service reform; yet in 1891 he attributed "the little successes I may have had" to "pressure from within" that stemmed from "a deep sense of obligation" rather than from "the allurement of a possible distinction."32 Obligation for Brandeis meant adherence to a code of rigid personal standards, which included the tenets of self-denial, distaste for excess in any form, and moral righteousness. It was as though he were compelled by his conscience to follow these standards, with success following naturally upon them.

The Brandeis code justified, among other things, low heat in his law office to save expense, a short working day (to keep one's mind fresh), disdain for drinking, dancing, and like pursuits, the zealous molding of the lives of the underprivileged so that paupers might achieve "moral growth,"33 distaste for sloppy and inefficient business practices, and eventually, in his maturity, adoption of the public as his client in a series of lawsuits designed to dissolve the monopolistic positions held by gas utilities, life insurance companies, banks, and the New Haven Railroad. It was not important to Brandeis that in those suits he actually represented competitors of the various industries rather than their consumers. What was important was that his clients recognize the value of moderation, efficiency, and social responsibility in their business practices. The proper task of the legal profession was to aid them in that recognition. Lawyers at large should occupy the position Brandeis had carved out for himself: one of "independence between the wealthy and the people, prepared to curb the excesses of either."34

By the time of Brandeis's appointment to the Court, against the protests of an influential segment of the Boston legal and commercial community, who felt that the combination of an economic reformer and a Jew was too much to tolerate, the eligible beneficiaries of his wisdom were numerous. He had scrutinized business trusts and concluded that excessive size produced economic waste. The trust-busting aspects of Woodrow Wilson's New Freedom were largely his creation.35 Scientific management, the efficiency-oriented program created by the engineer Frederick Taylor, had become one of his causes, even though it was opposed by labor unions whose members he wanted to liberate from their industrial slavery. The moral fervor of Zionism and its passion for social planning attracted him, and he began to deplore assimilation on the part of American Jews, calling it "national suicide."36 He lobbied for reform of the banking industry and was one of the draftsmen of the Federal Reserve Act, which initiated national control over the distribution of currency and credit. Even institutions of government became objects of Brandeisian crusades. As counsel for Collier's Weekly, which had exposed mismanagement of Interior Department resources, Brandeis publicized the cause of a middle-level employee of Interior who had been muzzled for uncovering inefficiency and corruption in his superiors.

As with Holmes, a juxtaposition of competing impulses formed the core of Brandeis's philosophy. In his case the impulses were those of freedom and self-restraint. Excess size, inequities, or inefficiencies choked or stifled individual initiative, he believed, but success and accomplishment were ascribed to self-abnegation and a conservation of human resources. Brandeis found industrial laborers his "most congenial company,"37 and regarded the industrious among them as heroes (but was infuriated to see them smoking cigarettes). For him they were to be a counterpoint to the "intense materialism and luxuriousness"38 of economic royalists. Freedom came, as it had in his case, from self-denial. In countless attempts to ingratiate himself with the eminent in Boston, in endless chilly days with overcoats substituted for radiators, in the husbanding of his early savings bonds, the moderation of pleasures, and the renunciation of luxuries were found the bits and pieces of Brandeis's eventual independence. When he joined the Court he was financially secure and beholden to no class or interest group. He was also convinced of his own righteousness, and zealous to impose his life-style on others.

The cosmic reach of Brandeis's philosophy suggested that he might come to the Court with developed views on the proper function of the judiciary. In actuality he had given little thought to the specific task of appellate judging, tending to include judges within his general observations on the legal profession. Two themes were central to his interpretation of law practice: the importance of empirical observation, and the lawyer's duty to be an intermediary between his clients and the public. Confronted with a legal problem, Brandeis sought to gather "the facts," and his great powers of organization and synthesis made fact analysis one of his special arts.

The facts having been collected and sifted, a course of action emerged. Each problem, he felt, formed the evidentiary basis of its own solution, since a sufficient supply of empirical data clarified the costs and benefits of various legal approaches. With the solution at hand, the next task was to persuade a client of its virtue. Here again, a grasp of "facts," including an understanding of the client's temperament, was a lawyer's best weapon. Empirical analysis, then, led to an inductive reasoning process in which costs were weighed against benefits; the process yielded a strategy with independent validity; a lawyer proceeded to persuade his client to adopt that strategy; in so doing, he not only gave good advice but influenced social policy and preserved his independence as well.

Judging, for Brandeis, was simply another exercise in this method. It was not a process of "reasoning from abstract conception," but one of "reasoning from life," taking "notice of facts."39 In his first years on the Court, Brandeis seemed to make almost no distinction between his opinions and the briefs he had written as an advocate. He set forth the factual basis of his inquiry, undertook an extensive empirical investigation (complete with technical references), made a cost-benefit analysis of the effects of various policy choices made by a lower court or a legislature, chose the most efficient solution, and lobbied for it. In a case in his first year on the Court, Adams v. Tanner,40 which considered the constitutionality of a Washington statute prohibiting employment agencies from charging fees, Brandeis asked himself what was "the evil which the people of Washington sought to correct," why had they chosen "the particular remedy embodied in the statute," and what had been "the experience . . . of other states or countries in this connection."41 Fifteen pages of labor statistics provided the answers. Private employment agencies had been corrupt and inefficient. It was reasonable for the people of Washington to want to eradicate corruption and inefficiency, and just for the Court to promote their cause.

For Holmes, this sort of partisan documentation was out of place in a judicial opinion42—and tedious as well. Holmes was not concerned with showing the positive value of paternalistic or regulatory legislation, but merely that its basis was reasonable. Therein lay a vital difference between him and Brandeis. Both men, as judges, believed that a legislative majority could infringe upon individual rights. "Above all rights," Brandeis said in one opinion, "rises duty to the community."43 But whereas Holmes simply accepted the ultimate logic of that view, Brandeis needed to be personally convinced of the Tightness of the majority's action. He was not receptive to, indeed was suspicious of, governmental power in the abstract, but when that power was being used for a moral purpose, he welcomed it. For example, Brandeis believed that economic independence and political democracy were interrelated. Excess size in enterprises was not only wasteful, he felt, but posed a threat to individual selfreliance, since the enterprise, as a unit, came to wield power over its own employees and other American citizens. Hence the use of governmental power to reduce the size of giant corporations amounted to a crusade for individual freedom. There was nothing inherently attractive in governmental power, however; "Big Government" was as much a potential threat to the individual as "Big Business."

Holmes, in contrast, recognized the "fact" of majority sovereignty and suggested to oppressed minorities that they consider revolution. In the historic struggles between the increasingly omnipotent governments of the twentieth century and various sets of individual rights, Holmes's reaction to government intervention—if he thought it anything but arbitrary—was generally passive; Brandeis's selectively enthusiastic or hostile. Consequently Holmes was almost uniformly indifferent to individual rights or liberties, whether economic or civil, whereas Brandeis, despite his view that all rights were ultimately subsumed in a broad obligation to society, occasionally approximated the stance of a civil libertarian.

IV

Of the thousands of opinions written by Holmes and Brandeis during their tenure on the Court, perhaps the most revealing, if not necessarily the most influential, were those in which they considered the effect of governmental regulation on two sets of liberties—first, the Fifth and Fourteenth Amendments' alleged guarantees of "liberty of contract"; second, the First and Fourteenth Amendments' guarantees of free speech.

The doctrine of liberty of contract, originally hinted at by Cooley in Constitutional Limitations, was developed in state courts in the 1880s,44 was slowly and obliquely incorporated in Supreme Court decisions in the late 1880s and 1890s,45 and was explicitly, though irregularly, accepted by a Court majority between 1905 and 1923.46 Its advocates postulated an inalienable right in employers and employees to buy and sell their goods or services on terms they chose, deriving this right, originally, from the Fourteenth Amendment's protection against state interference with liberty and property. Later a similar gloss was made on the Fifth Amendment's protection of liberty and property rights from interference by the federal government, making liberty of contract a philosophical principle as well as a constitutional doctrine. In its most extreme form, liberty of contract declared that any governmental attempt to regulate private contractual relations was presumptively invalid. It was that presumption that jeopardized much of the welfare legislation of the early twentieth century.

Judicial use of the liberty-of-contract doctrine to invalidate paternalistic legislation became an object of controversy in the first decade of the twentieth century. Opponents of the doctrine, among them Roscoe Pound and Theodore Roosevelt, suggested that it was unsound for two reasons: it ignored "new conceptions of the relation of property to human welfare,"47 and it exemplified an artificial process of judicial reasoning in which predetermined beliefs were developed pseudologically "in the teeth of the actual facts."48 If every man held his property subject to the general right of the community to regulate its use, property and contract rights were not inalienable. To exaggerate their importance in judicial formulas such as liberty of contract, which ignored the disadvantaged position of industrial workers in modern America, was to fail to adjust "[legal] principles and doctrines to human conditions."49 This failure invited a characterization of judges as reactionaries or antiquarians.

Holmes identified himself with the opponents of liberty of contract in his first Supreme Court opinion, but his opposition stemmed from a different source. The case, Otis v. Parker,50 tested the constitutionality of a California statute prohibiting sales of stock shares on margin. Holmes dismissed a claim that the statute limited unduly the freedom of adult persons to make contracts, by invoking his view on the proper allocation of institutional power in America. The fact that a statute could be said in a general way to violate the Constitution did not end the inquiry, he maintained, for "general propositions do not carry us far." The appropriate question for the Court in cases involving legislative infringement of "liberties" was not whether judges thought the statute "excessive, unsuited to its ostensible end, or based on [disagreeable] conceptions of morality," but whether it had a rational purpose and could be said to be a reasonable exercise of legislative power.51

At the outset of his career on the Court, then, Holmes indicated that his opposition to the liberty-of-contract doctrine could not be grounded on any enthusiasm for the paternalistic legislation that he sustained against its challenge. He thought that hours-and-wages laws merely "shift[ed] the burden to a different point of incidence";52he professed indifference toward "legislation to make other people better";53 he did not believe that "wholesale regeneration" could be achieved "by tinkering with the institution of property."54 He simply acquiesced in the apparent fact that "the liberty of a citizen to do as he likes" was "interfered with . . . by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not."55 When a legislative majority believed that an "important ground of public policy" called for restraint of individual liberties, Holmes felt that the Constitution permitted that restraint. "[T]he right to make contracts at will that has been derived from the word liberty in the [Fifth and Fourteenth] Amendments," he observed, had "been stretched to its extreme."56

From Lochner v. New York through Adair v. U.S. to Adkins v. Children's Hospital, the last a 1923 case invalidating the constitutionality of a minimum-wage law in the District of Columbia as an undue interference with the liberty to contract, Holmes protested against the use of the doctrine and all such "general propositions of law" to decide "concrete cases." But his protest stemmed from a general proposition of his own: "the scope of state sovereignty" was "a question of fact."57 By this phrase Holmes meant that governmental interference with individual liberties was permissible in circumstances in which that interference could be shown to be grounded on some rational basis or tied to the achievement of some important public purpose. Whether it could be so shown or so tied was a matter of quasi-empirical proof, proof of the seriousness and rationality of the legislature's purpose. The importance and seriousness of a given purpose varied with time, but the test of its rationality was majority sentiment. A majority might behave irrationally, however, and not every interference with liberties was justifiable. The mere fact that legislation infringing individual rights furthered a public purpose did not prevent judicial inquiry into its reasonableness. Such inquiries, however, could only be made on an ad hoc basis.

Nowhere in Holmes's approach was there an attempt to demonstrate the particular worth of a piece of legislation. He would support a paternalistic statute only to the extent of conceding that an economic or social inequality existed and that the disadvantaged group could fairly convince a majority that the inequality ought to be alleviated. Thus, in his dissent in Coppage v. Kansas,58 a 1915 case that struck down a Kansas statute prohibiting employers from preventing their employees from joining labor unions, Holmes stated that "in present conditions a workingman not unnaturally might believe that only by belonging to a union can he secure a contract that shall be fair to him,"59 but stopped well short of endorsing the value of labor unions.

In contrast to this fatalism and indifference was the righteousness and zeal of Brandeis. Liberty of contract arguments stimulated Brandeis to demonstrate the value of the legislation being challenged. His interest was not so much in exposing the sterility of judicial decisions that reasoned downward from preconceived beliefs as in showing that the preconceptions themselves were unsound in light of the "facts" of twentieth-century life in America. The liberty-of-contract doctrine was inadequate, he felt, not so much because it represented the inappropriate judical promulgation of a particular economic theory, but because it assumed an equality of bargaining power between employees and employers when it did not actually exist, or because it failed to recognize that, in modern life, considerations of social welfare could transcend the exercise of individual rights.

For Brandeis there were good theories and bad theories, purposes that were noble and purposes that were illegitimate. A Washington statute forbidding employment agencies from receiving fees for their services had been passed in response to a number of "evils" incumbent upon that practice, including waste, inefficiency, and corruption.60 An Arizona law forbidding the use of injunctions in labor disputes had been partially motivated by the inequitable and heavy-handed use of the practices and by the divided state of public opinion as to its efficacy.61 A Nebraska statute fixing maximum weights for loaves of bread was attempting to eradicate unfair competition among bakers and frauds on the public.62

Brandeis's support for legislative infringements on individual rights, in short, varied with his enthusiasm for the goals envisaged by the legislation. In certain areas of life he believed firmly that persons should be protected against their own self-destructive tendencies, requiring not only moral guidance but a degree of coercion. Consumption of alcoholic beverages was one of these areas. For Brandeis "evil [was] sure to flow from the appetite of men for stimulating liquors."63 He supported prohibition legislation and, as a judge, he granted to the federal government and the states a wide scope of power to implement it. A provision of the War-Time Prohibition Act of 1918 preventing the sale of liquors in bond was not an unconstitutional taking of property.64 Congress and the states had power to enact legislation designed to suppress traffic in intoxicating liquors even if that legislation regulated alleged non-intoxicants such as beer and malt liquor.65 The presence of intoxicating liquor in a car rendered it forfeitable to the government regardless of whether the car's owner knew of the liquor's presence.66 The amount of liquor dispensed by physicians for medicinal purposes could be limited by Congress.67

Brandeis did not apply uniformly his belief that a paternalistic government should protect members of the public against themselves. In the area of free speech he seemed to move, in the course of his career in the Court, toward a stricter standard of judicial scrutiny for regulatory legislation than he advocated in cases involving property and contract rights. Holmes, as well, appeared in free speech cases to be giving greater deference to individual rights than his theory of majoritarian sovereignty would allow.

Free-speech cases in the early twentieth century underscored the anxieties that centered around the place of consensual norms and values in American civilization. Freedom to express dissident and unpopular sentiments had been a traditional American value, part of the nation's revolutionary heritage. But World War I, an increasingly diverse and heterogeneous population, and the international success of alternative ideologies to capitalism and democracy combined to produce a perception that dissident attitudes and values could threaten national security. As the ethnic and cultural heritage of American citizens became more diffuse, pressures for national unity against outside threats increased. The result was a strident reaffirmation of the values and norms that allegedly unified Americans in the face of their disintegration. Dissident speech raised the troublesome problem of defining what beliefs early twentieth-century Americans still held in common.

Holmes came to free-speech cases with an attitude he once expressed by saying "I see no meaning in the rights of man except what the crowd will fight for."68 There were no such things as natural rights for Holmes, only the right of majorities to impose their opinions on minorities and the correlative right of minorities to overthrow the majority. But exchange of ideas, in a democratic society, was an essential part of the continual replacement of majorities by other majorities. Little as Holmes believed in the inalienability of free speech, he said, he hoped he would die for it; although time had "upset many fighting faiths," the "ultimate good desired" was best achieved by "free trade in ideas."69

Holmes thus appears to have accepted, in addition to the "ultimate fact" of force on which governmental power rested, an intermediate basis of legitimacy. In democratic societies, at any rate, one way in which majorities held power was by convincing citizens of the Tightness of their beliefs. They imposed their views on others and suppressed dissenting opinions, but they also attempted to justify their own actions. Quite often in America, Holmes believed, majorities "doubt[ed] [their] power or [their] premises."70 There was something about American civilization that lent an uneasy status to the naked use of power. Holmes did not go on record as applauding this uneasiness. He took pains, in fact, to stress that power was the essential rationale for governmental acts. But he recognized it and built his analysis of free-speech questions upon it.

Holmes began his free-speech decisions by stressing the power in legislatures to suppress speech and, having established that premise, attempted to work out an accommodation between majoritarian sovereignty and the First Amendment. In Patterson v. Colorado,71 a 1907 decision, he allowed the Colorado Supreme Court to hold in contempt a man who had published articles criticizing its motives, announcing in the process that the First Amendment's protection extended primarily to prior restraints on speech, not to speech that had been published. In the 1915 case of Fox v. Washington,72 which sustained the constitutionality of a statute punishing any speech that had a tendency to encourage or incite the commission of a crime, he made no inquiry into the actual consequences of the speaker's words.

But in Schenck v. United States73 and Abrams v. United States, two 1919 cases, he appeared to be moving toward a practical compromise between governmental power and free expression, embodied in the "clear and present danger" test articulated in Schenck. The proper judicial inquiry in speech cases, Holmes maintained, was "whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."74 Under this test, circulars urging persons subject to the draft to resist conscription could be suppressed and their authors punished, but circulars urging munitions workers to support the Russian Revolution of 1917 were constitutionally protected.75 The first endangered the American military effort in World War I, since the authors attempted to prevent the government from amassing a fighting force. The second did not have a similar effect, since the United States was not at war with Russia.

The test for clear and present danger was grounded on a paradox that became increasingly apparent, especially as used by Brandeis in cases in the 1920s. The test began with the assumption that free speech was not an absolute right, despite the First Amendment. It endorsed governmental infringement on individual liberties in principle and tolerated specific infringements. But it also set limits on the power of a legislative majority to suppress speech and permitted the judiciary to determine those limits. A court, under the test, could take a free-speech case away from the jury if it decided that the words sought to be suppressed had not in fact created a clear and present danger to majority security. The test could thus be seen, as Brandeis said in Schaefer v. United States,16 as a "rule of reason":77 a means by which judges scrutinized the rationality of legislative acts. As a rule of reason, it could conceivably be used the way late-nineteenth-century judicial rules of reason had been used—namely, as a means of allowing the judiciary to make substantive judgments on the worth of legislation.

Here Brandeis's confidence in the inherent soundness of his own judgments prevailed over his tendency to interpret the range of judicial powers narrowly. He believed that a careful analysis of the facts of a case could lead one to truth. When the insights generated by an inquiry into facts harmonized with his own predilections, conclusions became irresistible. Once he had drawn conclusions, he was not particularly tolerant of opposing views, nor terribly anxious, as a judge, to allow them much weight. In Schaefer he decided that the publication of newspaper articles expressing skepticism about the professed intent of the United States to send troops to Europe was so far from being an immediate danger to the American war effort that "no jury in calmness" could find it such. Accordingly, the test for clear and present danger dictated withdrawal of the case from jury consideration.78 Similarly, in Pierce v. United States,79 after carefully studying a Socialist Party leaflet that depicted the horrors of war and asserted that the Morgan interests were behind the war effort, Brandeis concluded that it was a mere expression of opinion that had even recognized its own impotence in inducing resistance against the war.

In these cases Brandeis was making a gloss on Holmes's test that Holmes himself was not entirely prepared to accept. Brandeis was concerned not only with the close connection of the suppressed speech to the occurrence of a preventable evil, but also with the seriousness of the evil that might occur. Holmes, in the 1919 cases in which he had formulated the test, had been interested primarily in the chronological relation of the speech to the evil. Brandeis believed that mere chronological proximity was not enough. If the evil that the speech induced was relatively trivial, the speech should be protected. In Gilbert v. Minnesota80 a lobbyist was convicted, under a Minnesota statute prohibiting public speeches against the war effort, for stating that conscription should be subject to popular vote and that "if they conscripted wealth like they have conscripted men, this war would not last over forty-eight hours."81 Holmes voted to sustain the conviction and uphold the statute's constitutionality; Brandeis dissented. The statute created a blanket prohibition of public speech against enlistment or in behalf of pacificism, Brandeis maintained. No effort was made to inquire into the purpose of the speech or to ascertain whether the speaker's remarks could reasonably be expected to induce others to perpetrate truly serious evils.

As free-speech cases moved outside the context of World War I, this difference in focus between Holmes and Brandeis persisted, even though it did not again result in their casting opposing votes. In Gitlow v. New York,82 a 1925 case, a Socialist was convicted under the New York Criminal Anarchy Act of 1902 for advocating mass strikes and hostile action against the bourgeoisie. Holmes, in dissenting from the Court's decision sustaining the conviction against a free-speech challenge, distinguished between the advocacy of ideas in the abstract, and concrete attempts to induce others to carry out those ideas immediately. The "redundant discourse" of Gitlow, he maintained was not "an attempt to induce an uprising against government at once," but "at some indefinite time in the future."83

Brandeis joined this dissent, but his subsequent concurrence two years later in Whitney v. California84 indicated that he was concerned with the seriousness as well as the imminence of the resulting evil. He read the test for clear and present danger, he said, as meaning that whenever the "fundamental rights of free speech and assembly" were allegedly invaded, a defendant could raise three questions: whether "there actually did exist at the time a clear danger"; whether "the danger, if any, was imminent"; and "whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature."85 The first two questions were questions of fact, the third was a question of law. A court could determine that the evil perceived was not sufficiently serious to merit legislative interference with free speech, and so withdraw the case from the jury. The judicial deference to legislative wisdom championed by Brandeis in liberty-of-contract cases did not always apply in speech cases.

Holmes joined Brandeis in his Whitney concurrence, but the facts of the case qualified his support. The defendant in Whitney had been convicted under a California criminal statute for participating in the organization of a state Communist Labor Party. The statute prohibited persons from becoming members of organizations that advocated violence as a means of inducing social or political change, and thus attempted to punish those who merely associated with persons who advocated or practiced violence. A majority of the Court peremptorily sustained the statute. Brandeis, however, thought that the statute might be constitutionally defective as applied to Miss Whitney. Her association with Communists, he argued, did not by itself constitute a sufficiently imminent danger to the security of the State of California. But there was other evidence that might have suggested that Miss Whitney and her associates posed an immediate threat to California's security; and thus Brandeis tolerated her conviction. His focus, ultimately, was thus on the imminence of the danger rather than the seriousness of the perceived evil. This focus was consistent with that of Holmes in Gitlow.

At the very end of his career, Holmes seemed to have accepted the notion of reversing the presumption of constitutional validity in speech cases. In Near v. Minnesota86 a majority of the Court invalidated a statute allowing injunctions against newspapers that had printed allegedly defamatory material. In the process, the majority, through Chief Justice Charles Evans Hughes, asserted the importance of keeping the press immune from censorship of its publications and claimed the power to weigh the serious public evil caused by authority to prevent publication against the evils suppressed by the statute.87 In this, the last speech case decided before Holmes's retirement, he and Brandeis were both members of the majority. Whether Holmes's acquiescence stemmed from his belief that protection from "prior restraints" formed the core of the First Amendment or whether he had actually endorsed Brandeis's gloss on his original clear-and-present-danger test is unclear.

Also in 1931 came one of the last liberty-of-contract cases of the twentieth century, O'Gorman v. Hartford Ins, Co.,88 in which a New Jersey statute regulating the fees paid to local agents by insurance companies was challenged as a violation of the Fourteenth Amendment's due process clause. Brandeis, in a majority opinion sustaining the statute, made the familiar analysis of evils and remedies he had made in earlier liberty-of-contract cases and then invoked the presumption of the constitutionality of legislative acts to dispose of the case. Holmes voted with the majority. The entire five-man majority of O'Gorman, which included Justices Holmes, Brandeis, Hughes, Stone, and Owen Roberts, adopted a rule of presumptions for liberty-of-contract cases differing from that used for speech cases. Conversely, the four dissenters in O'Gorman—Justices Butler, McReynolds, Sutherland, and Van Devanter—proclaimed the inviolability of freedom to contract, but, as dissenters in Near, argued that legislative attempts to curb speech were presumptively valid. By 1931 liberty of speech had apparently come to occupy the exalted place once reserved for liberty of contract, while liberty of contract had been discredited.

Holmes and Brandeis had played an important part in a process that ultimately led to temporary placement of First Amendment liberties in a constitutionally "preferred position" over economic liberties. This development, when it was made manifest by the Court in 1945,89 was hailed as a victory for liberalism and a tribute to the influence of the foremost judicial liberals of the early twentieth century, Holmes and Brandeis.90 But rather than demonstrating the compatibility of liberalism with Holmes's and Brandeis's interpretations of their office, the liberty-of-contract and speech cases had unearthed the paradoxical nature of the modern liberal blueprint for judicial performance.

V

Holmes had taught that ideas and values, whether employed by judges or by others, were not absolutes but products of changing social conditions. Brandeis had taught that the empirical indices of change could be observed and analyzed and that, by this process, public policies could be made responsive to the dictates of contemporary life. Liberalism, as it coalesced into a definable ideology, drew upon both these insights. American society after World War I was marked by a simultaneous collapse of allegedly timeless values and norms and a pervasive need for governmental policies that responded to the newly perceived facts of modern industrial life. To an extent, Holmes helped make palatable a world without consensual norms, while Brandeis sought to show how governmental institutions could intervene to make that world more livable. Each contributed to the belief of modern liberalism that an activist state could provide both security and progress.

But if some strands of the thought of Holmes and Brandeis were harmonious with liberalism, others were not. The dissonance that thus resulted highlighted the uneasy role of the appellate judiciary in the liberal state. Holmes had been a leading late-nineteenth-century intellectual radical. His quarrel with that century's faith in universal axioms had made him an early-twentieth-century juristic reformer, exposing the essential subjectivity of the oracular approach to judging. With his distaste for intuitive judicial decision-making came an exaltation of self-restraint, and in the liberal world of fragmented values judicial self-restraint seemed eminently sensible. Holmes was hence a professional judge for liberals: the "completely adult jurist," to Jerome Frank.91 But he was no humanitarian. He not only tolerated but actually believed in the principle of majoritarian repression of minority rights. He rejected the notion that free speech was an absolute right as surely as he rejected the inalienability of a liberty to contract. He was indifferent to the civil rights of blacks, Orientals, and aliens.92 he was often satisfied with summary forms of procedural due process. His clear-and-present-danger test cut both ways: it carved out an area of constitutionally protected speech but also justified widespread suppression of "dangerous" expression. In short, Holmes abjured close scrutiny of repressive legislation as well as of welfare legislation. Hours and wages laws were sanctioned, but so were statutes requiring the compulsory sterilization of mental defectives.

Brandeis, as well, fell short of the paradigm of a liberal judge. Sometimes, as in the wartime prohibition cases, he assumed the presence of a consensus of values on moral issues that liberalism denied, thereby reaching what were perceived as illiberal results.93 On other occasions his deviance from liberalism exhibited itself in his methods, as in those speech cases where through his gloss on the clear and present danger test he appeared to be endorsing a subjective form of judicial decision-making that the professional canons of liberalism repudiated. Brandeis was a liberal in his result-orientation only to the extent that liberalism endorsed Brandeisian social policies; he was a liberal in methodology only to the extent that judicial self-restraint fostered results that he thought sensible.

The careers of Holmes and Brandeis hence illustrated the tension in judicial liberalism between "right" results and "right" methods. That tension had been implanted in the movement at its origin. The early-twentieth-century critics of "mechanical" jurisprudence objected not only to methods but to results as well. They disliked conservatism in the appellate judiciary as much as they disliked subjective activism. Their critiques assumed that the liberty-of-contract doctrine represented unsound social policy as well as illogical reasoning, and that assumption rested on their own strong perception of the common goals of American civilization. But as the substantive content of consensual American values became increasingly difficult to perceive after World War I, judicial self-restraint took on an expanded meaning. It was not merely a check against wrong-headed subjectivity but also a means by which the judiciary assured that the decisions of the institution best suited to discern and reflect majoritarian sentiment—the legislature—were given their proper weight. Since the state had become a substitute for value consensus, its legislative fiats should be supported as buffers against anarchy.

The concept of an expansive regulatory state rested, however, on the premise that it would be responsive to the needs of disadvantaged minorities. Otherwise the egalitarian and democratic traditions of America would vanish, and liberalism would be synonymous with totalitarianism. The state was permitted to regulate private conduct only to the extent that its regulations were fairly implemented, and also conferred benefits on the disadvantaged that outweighed the costs to everyone else. Not every manifestation of majoritarian sentiment was to be tolerated; some legislative policies were illiberal. The only institution capable of scrutinizing the fairness of legislative activity was the judiciary; hence, judges in the liberal state should use their expertise in interpreting the Constitution to undertake that scrutiny. They should presume legislation to be constitutionally valid, but be prepared to override that presumption.

The harmony of methods and results envisaged by this conception of judicial performance was fated to dissolve in instances where pressure for national solidarity clashed with pressure to vindicate minority rights. The speech cases represented one such instance in which judicial self-restraint did not produce liberal results. Holmes and Brandeis, both of whom, in varying degrees, believed in tolerating legislative judgments and in vindicating free expression, struggled with the dilemma posed by these cases. Their eventual resolution, at least in the Near case, appeared to subordinate a liberal methodology to the achievement of liberal results. As a result of that case and other instances in which they seemed to champion the disadvantaged, they were apotheosized as liberals. That apotheosis, however, ignored the differences between them and minimized the inherent contradictions in modern liberalism's mandate for the judiciary. The considerable skills of Holmes and Brandeis—the keenness of their minds, their capacity for eloquence, the coherence of their thought—did not make any easier for them the task of squaring approved liberal results with approved liberal methods of judging. They, at least, were acute enough to see a potential tension between methods and results. Other early-twentieth-century members of the Supreme Court, who opposed modern liberalism in any form, failed to perceive a distinction between judging and vindicating one's social or political preferences. That failure generated another threat to the independence of the American appellate judiciary.

NOTES

1 See generally L. Hartz, The Liberal Tradition in America (1955).

2 The discussion to follow draws on insights in H. May, The End of American Innocence (1959); R. Wiebe, The Search for Order (1967), and P. Conkin, The New Deal (1967).

3 E.g., H. Laski, Authority in the Modern State (1919).

4 No effort is made here to deny the possibility of a divergence between the publicly expressed and the privately held views of supporters of either populism or progressivism. Both movements attracted persons from a variety of social and economic backgrounds, and various theories have been advanced as to their collective motivations for reform. Compare J. Chamberlain, Farewell to Reform (1932), with R. Hofstadter, The Age of Reform (1955), and G. Kolko, The Triumph of Conservatism (1963). In contrast to that of the New Dealers, the rhetoric of populists and progressives appears laden with moral appeals and visions of an idyllic society. For an expression of the contrasting tone taken by liberals, see T. Arnold, The Symbols of Government (1935). These different angles of vision may have reflected fundamentally different social perspectives. See H. Graham, Encore for Reform: The Old Progressives and the New Deal (1967).

5 For the late-nineteenth-century version of this view, see J. Sproat, The Best Men (1971). See generally White, "The Social Values of the Progressives: Some New Perspectives," 70 South Atlantic Quarterly 62 (1971).

6 See, e.g., Pound, "Mechanical Jurisprudence," 8 Colum. L. Rev. 605 (1908); Dodd, "Social Legislation and the Courts," 28 Pol. Sci. Q. 1 (1913).

7 Examples of the two schools in the period discussed are Pound, "The Theory of Judicial Decision," 36 Harv. L. Rev. 641, 802, 940 (1923); Oliphant, "A Return to Stare Decisis," 14 A.B.A.J. 71, 159 (1928). See generally White, "From Sociological Jurisprudence to Realism," 58 Va. L. Rev. 999 (1972).

8 E.g., R. Jackson, The Struggle for Judicial Supremacy 312 (1941): "Holmes and Brandeis have not only furnished the highest expression but they have been the very source and the intellectual leaders of recent liberalism in the United States."

9 See White, "The Rise and Fall of Justice Holmes," 39 U. Chi. L. Rev. 51, 56 (1971).

10 O. W. Holmes, Sr., 3 The Complete Writings of Oliver Wendell Holmes 59, 142 (13 vols., 1900).

11 William James, Oct. 2, 1869, quoted in R. Perry, 1 The Thought and Character of William James 307 (2 vols., 1935).

12 Holmes to Felix Frankfurter, June 26, 1928, in Holmes Collection, Harvard Law School.

13 Holmes, "Notes on Albert Dürer," 7 Harvard Magazine 41, 43-44 (October 1860).

14 Holmes, "The Path of the Law" (1896), reprinted in Collected Legal Papers 167, 172 (1920).

15 Holmes, "Law in Science and Science in Law" (1899), reprinted in id. at 210, 242.

16 See discussion of free-speech cases infra.

17Buck v. Bell, 274 U.S. 200 (1927).

18Patsone v. Pennsylvania, 232 U.S. 138 (1914).

19 Holmes to Harold Laski, in M. Howe, ed., 1 Holmes-Laski Letters 217 (2 vols., 1953).

20 Holmes, "Law in Science and Science in Law," supra n.15 at 239.

21 Id.

22 See Holmes to Harold Laski, January 13, 1923, in 1 Howe, ed., supra n.19, at 473-74.

23 Holmes to Sir Frederick Pollock, in M. Howe, ed., 2 Holmes-Pollock Letters 22 (2 vols., 1961).

24 Holmes to Pollock, in 1 Howe, ed., supra n.23 at 163.

25 Quoted in H. Pringle, 2 The Life and Times of William Howard Taft 969 (2 vols., 1939).

26 Charles G. Ross, St. Louis Post-Dispatch, quoted in I. Dillard, ed., Mr. Justice Brandeis, Great American14 (1941).

27 Brandeis to Otto Wehle, March 12, 1876, in Public Papers of Louis D. Brandeis, U. Louisville Law School.

28 A. Mason, Brandeis: A Free Man's Life 42 (1946).

29 See id. at 103.

30 Brandeis to Charles Nagel, July 12, 1879, in Public Papers, supra n.27.

31 Brandeis to Amy Brandeis Wehle, Jan. 2, 1881, in id.

32 Brandeis to Alice Goldmark, quoted in Mason, supra n.28 at 75.

33 Testimony before the Committee of the Board of Aldermen in the Case and Management of Public Institutions, 3 Report 3631-32 (1874).

34 L. Brandeis, BusinessA Profession 321 (1914).

35 See generally A. Link, Wilson: The New Freedom (1956).

36 Brandeis, "A Call to the Educated Jew," 1 Menorah Journal 15 (1915).

37 Brandeis to Alfred Brandeis, June 18, 1907 in Public Papers, supra n.27.

38 Brandeis, BusinessA Profession, supra n.32, at liv-lvi.

39 Brandeis, "The Living Law," 10 Ill. L. Rev. 461, 465 (1916).

40 244 U.S. 590 (1917).

41 Id. at 597, 600 (dissent).

42 Holmes wrote Laski that on one occasion he had told Brandeis that the latter was "letting partisanship disturb his judicial attitude." 1 M. Howe, ed., supra n.19 at 128.

43Duplex Co. v. Deering, 254 U.S. 443, 479, 488 (1921) (dissent).

44 E.g., In re Jacobs, 98 N.Y. 98 (1885); Millett v. People, 117 Ill. 294 (1886); Godcharles v. Wigeman, 113 Pa. 431 (1886).

45Powell v. Pennsylvania, 127 U.S. 678, 687 (1888) (Field, J., dissenting); Hooper v. California, 155 U.S. 648, 659 (1895) (Harlan, Brewer, Jackson, JJ., dissenting); Frisbie v. United States, 157 U.S. 160 (1895); Allgeyer v. Louisiana, 165 U.S. 578 (1897); Holden v. Hardy, 169 U.S. 366 (1898).

46 E.g., Lochner v. New York, 198 U.S. 45 (1905); Adair v. United States, 208 U.S. 161 (1968); Adkins v. Children's Hospital, 261 U.S. 525 (1923).

47 Theodore Roosevelt, Autobiography (1919), reprinted as The Autobiography of Theodore Roosevelt 334 (1958).

48 Pound, "Liberty of Contract," 18 Yale L. J. 454, 462 (1909).

49 Id. at 464.

50 187 U.S. 606 (1903).

51 Id. at 608-9.

52 Holmes to Laski, in 1 Howe, ed., supra n.19 at 51.

53 Id. at 42.

54 Holmes, Collected Legal Papers, supra n.14 at 306.

55Lochner v. New York, supra n.46 at 75 (dissent).

56Adair v. United States, supra n.46 at 191 (dissent).

57 Holmes to Laski, in 1 Howe, ed., supra n.19 at 21.

58 236 U.S. 1 (1915).

59 Id. at 26, 27 (dissent).

60Adams v. Tanner, supra n.40.

61Truax v. Corrigan, 257 U.S. 312, 354 (1922) (dissent).

62Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924) (dissent).

63 Brandeis, "The Anti-Bar Law," address before the Joint Committee on Liquor Law of the Massachusetts Legislature, Feb. 27, 1891, in Public Papers, supra n.27.

64Hamilton v. Kentucky Distilleries Co., 251 U.S. 146 (1919).

65Jacob Ruppert v. Caffey, 251 U.S. 264 (1920).

66United States v. One Ford Coupe, 272 U.S. 321 (1926).

67Lambert v. Yellowley, 272 U.S. 581 (1926).

68 Holmes to Laski, in 1 Howe, ed., supra n.19 at 8.

69Abrams v. United States, 250 U.S. 616, 630 (1919) (dissent).

70 Id.

71 205 U.S. 454 (1907).

72 236 U.S. 273 (1915).

73 249 U.S. 47 (1919).

74 Id. at 52.

75Abrams v. U.S., supra n.69 at 624 (dissent).

76 251 U.S. 466 (1920).

77 Id. at 482 (dissent).

78 Id. at 482-83.

79 252 U.S. 239, 253 (1920) (dissent).

80 254 U.S. 325 (1920).

81 Quoted in Z. Chafee, Free Speech in the United States 290 (1941).

82 268 U.S. 652 (1925).

83 Id. at 673 (dissent).

84 274 U.S. 357 (1927).

85 Id. at 372, 379 (concurrence).

86 283 U.S. 697 (1931).

87 Id. at 708.

88 282 U.S. 251 (1931).

89Thomas v. Collins, 323 U.S. 516 (1945).

90 See generally R. Cushman, "Clear and Present Danger in Free Speech Cases," in M. Konvitz and A. Murphy, Essays in Political Theory 311 (1948).

91 J. Frank, Law and the Modern Mind 253 (1930).

92 See generally Rogat, "Mr. Justice Holmes: A Dissenting Opinion," 15 Stan. L. Rev. 3, 254 (1963).

93 E.g., Mason, supra n.28 at 567: Brandeis's "stand in [cases involving] 'moral' issues" was "strangely out of key with his customary liberalism."

Louis Auchincloss (essay date 1979)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 5875

SOURCE: "The Long Life and Broad Mind of Mr. Justice Holmes," in Life, Law and Letters: Essays and Sketches, Houghton Mifflin Company, 1979, pp. 1-19.

[In the following essay, Auchincloss provides an overview of Holmes's life and career.]

Few men have seen as much of our history, and from such advantageous viewpoints, as Oliver Wendell Holmes, Jr. As a boy in Massachusetts he met veterans of the Revolution. He went to school in a Boston shaken by abolition. He fought through the Civil War, and it is said to have been his voice that shouted the rough warning to Lincoln when the President exposed his high hat above the ramparts at Fort Stevens. With peace Holmes became a lawyer and a great scholar. He served as a judge for half a century, first on the high bench of Massachusetts and then on the United States Supreme Court. And at the age of ninety-two, just retired, he received an early official visit from the newly elected Franklin D. Roosevelt. ("Why are you reading Plato, Mr. Justice?" was the President's genial opening.) That such a span of life should have been granted to a man so competent to use it is a rare event in the history of any nation.

Holmes was born in 1841 in Boston, into a world that regarded itself as the intellectual and commercial center of the nation. His father, Dr. Oliver Wendell Holmes, was not only one of America's favorite poets and novelists; he was also a distinguished medical practitioner who published a paper on the contagiousness of puerperal fever which saved the lives of thousands, perhaps millions, of women. On his mother's side the infant was a grandson of Justice Charles Jackson of the Supreme Judicial Court of Massachusetts, on which bench Holmes was later to sit not only as an associate, but as chief justice.

The Holmeses were not rich, but they were comfortably off. Dr. Holmes, a wit and a raconteur, was in high demand at intellectual gatherings. Charles Sumner, Emerson, and Longfellow were close friends and frequent callers at his house. Such a background has been regarded by many as a check to the creative impulse. Henry Adams, born three years before Oliver Wendell Holmes, Jr., under the very shadow of the State House, claimed that he had been less equipped for life in nineteenth-century America than if he had started as a polish Jew, "a furtive Yacoob and Ysaac still reeking of the Ghetto, snarling a weird Yiddish to the officers of the customs." Holmes, however, had little use for such self-dramatization. He selected from his background what tools he needed for the life that he wished to lead, and discarded the rest as best he could. He grew up into a tall, lean, strong young man, strikingly handsome yet of a cool disposition, tolerant, amused, incessantly curious, but with a certain disdain for the mob and an iron determination to lead his life by his own lights no matter what people or forces might stand in his way.

He was one of eighty in the Harvard class of 1861, graduating just as the Civil War began. Although he was repelled by what he saw as the excesses of the abolitionists and although he was always fond of many Southerners, there was no question in his mind but that the Union had to be preserved, and he enlisted at once in the Twentieth Massachusetts Regiment, known as the "Harvard Regiment," in which he was soon commissioned. Many of the intellectuals of his generation, including Henry and William James, did not take up arms in the war. Holmes did not seem particularly critical of such men. He believed that each man should make up his own mind. During his three years' service, he was three times badly wounded: in the chest at Ball's Bluff, in the neck at Antietam, and in the heel at Fredericksburg.

After Antietam the enthusiastic and emotional Dr. Holmes rushed to his son's side, taking care to record the dramatic events of his journey in an article for the Atlantic Monthly, "My Hunt After 'The Captain.'" The son noted this, as he also noted his father's undoubted affection. He was always just, but his father's florid style was not to be his. As he later said, the Harvard Regiment never wrote about itself in a newspaper.

Holmes always regarded his military service as the most intensely lived part of his existence. In later years when commercial greed seemed to engulf America, he was to feel that the long absence of the cruel test of warfare was making people soft. On the whole, although he admired men like the railroad tycoon James J. Hill, whom he regarded as representing "one of the greatest forms of human power," he preferred warriors to stockbrokers. And in a Memorial Day address at Harvard in 1895 he made a statement which today sounds remarkably bellicose: "War, when you are at it, is horrible and dull. It is only when time has passed that you see that its message was divine . . . For high and dangerous action teaches us to believe as right beyond dispute things for which our doubting minds are slow to find words of proof. Out of heroism grows faith in the worth of heroism. The proof comes later, and even may never come. Therefore I rejoice at every dangerous sport which I see pursued. The students at Heidelberg, with their sword-slashed faces, inspire me with sincere respect. I gaze with delight upon our polo players. If once in a while in our rough riding a neck is broken, I regard it, not as a waste, but as a price well paid for the breeding of a race fit for headship and command."

In light of the above, the way that his own military career ended may seem curious. The Twentieth Regiment had been enlisted for three years, and Holmes was entitled to be discharged in the summer of 1864. In July of that year, when the war had still eight of its bloodiest months to run, he resigned his commission and returned to Boston to study law. But Holmes never sought excuses, and he insisted in this as in all his other actions, on his individual prerogative. Here is what he wrote his parents:

I started this thing as a boy. I am now a man and I have been coming to the conclusion for the last six months that my duty has changed. I can do a disagreeable thing or face a great danger coolly enough when I know it is a duty—but a doubt demoralizes me as it does any nervous man—and I honestly think the duty of fighting has ceased for me—ceased because I have laboriously and with much suffering of mind and body earned the right . . . to decide for myself how I can best do my duty to myself, to the country, and, if you choose, to God.

As an old man Holmes came to question the validity of this decision. But it was certainly consistent with his concept of independence. He never shrank before the enemy, nor did he shrink before the prospect of what his family and friends might think of his packing up and going home before Richmond had been taken. Certainly he never regarded this decision as qualifying his right to extol the military virtues to youth.

After Harvard Law School, Holmes was admitted to the Massachusetts bar in 1867. He practiced for a short time with his brother, Edward Jackson Holmes, and then joined the firm that became known as Shattuck, Holmes & Munroe, the Boston partnership with which his name has been predominantly associated. He had a general practice, with considerable litigation, but his great passion was exploring the origins of law to establish a theoretical basis for fundamental legal doctrine. In the course of the decade and a half before his appointment to the bench, Holmes dedicated most of his nights and weekends to this scholarship. Thus, even as a busy lawyer, he was able to edit the twelfth edition of Kent's Commentaries on American Law in 1873, and in 1881, just before his fortieth birthday, he brought out his own enduring classic, The Common Law.

These years of law practice and scholarship constitute a rather arid period in the history of Holmes's personality. The man who in 1897 could write to a friend of the divinity of vitality, the wonderful capability of complex and civilized man to "lark like a boy," is scarcely perceptible in the midnight toiler. Yet this was also the period of his marriage, at thirty-one, to Fanny Dixwell, a few months older than himself, daughter of the headmaster of the school he had attended in preparation for Harvard. Mrs. Holmes, who lived almost as long as her husband, had a character that is difficult to piece out. Her complete devotion to Holmes has always been recognized. But she was a shy woman of few or no intimates. She was an efficient housekeeper, a serious artist in needlepoint, and a woman of strong will, few words, and sharp wit. Her adoration of her husband was probably intensified by the childlessness of their marriage, and she never interfered either with his work or with his pleasures. For example, she rarely accompanied him on his summer trips to England, giving as her excuse her dislike of the Atlantic voyage. But I suspect that she knew how much he loved the intellectual companionship of his English friends and felt that she was a drag on such expeditions.

Holmes and his wife lived at first with his parents, which could not have been easy for Fanny. That he must have considerably neglected her, working so intently, there can be little doubt. In the opinion of William James, at that time one of his best friends, all of Holmes's noble qualities were poisoned by "cold blooded, conscious egotism and conceit," and William's mother, writing to her novelist son Henry in England, said of him: "His whole life, soul and body, is utterly absorbed in his last work [the Kent Commentaries]."

Henry James was more perceptive than his brother. He was always one to appreciate the necessary loneliness of hard work, and he recognized in early youth that Holmes was destined to a great success, although "in a speciality." In later years Holmes visited Henry James on trips to England, and the latter perceived that the former's personality never essentially changed. Henry speculated that this quality of being inalterable might spring from a failure to live. This may seem a strange comment to be made about a warrior and a busy judge by a fussy old literary bachelor who had avoided military service in the Civil War, but its significance will be appreciated by those critics who have found in Holmes's Olympian detachment a suggestion of occasional heartlessness, or at least indifference, to his fellow man. Henry put it more agreeably when he described Holmes as moving through life "like a full glass carried without spilling a drop."

James Bradley Thayer, who collaborated with Holmes in the editing of Kent's Commentaries, felt that Holmes had treated him badly in arrogating to himself most of the credit, and Charles W. Eliot, the president of Harvard, was indignant when Holmes in 1882 resigned a professorship, which he had just accepted at the Law School, to accept the governor's appointment to the Supreme Judicial Court of Massachusetts. But on Holmes's side it must be pointed out that he indeed had done the major work on the Commentaries, and that he had written a letter to President Eliot when he accepted the Harvard appointment, reserving the privilege to resign it if appointed to any judicial post.

It seems, on balance, that Holmes's friends were severe on him in this period. He had to support himself, and he would have had to give up his greatest goal in life had he not used every available minute for hard work. He was not a man of overweening ambition, but when it was a question of those things about which he cared, such as the credit for a book that he had largely written, or the acceptance of a judicial post that might never be offered again, he could act with a speed and determination that may have had an air of ruthlessness. Once Holmes was convinced that what he was doing was the right thing, judged entirely by his own standards, he did not give a damn what anyone else thought.

Holmes, in The Common Law, explored the origins of civil and criminal liability in Anglo-Saxon, German, and Roman law. His famous statement, on the very first page, that the life of the law has not been logic but experience, seems obvious enough today, but we must remember that he was a pioneer. He sought to articulate a theoretical basis for fundamental legal doctrine in a way that differed significantly from the attempt of many of his contemporaries to deduce legal rules from absolute principles. Such theorists had a tendency to idealize law, to see it as a constantly perfected process emanating from judicial inductions and deductions, possibly inspired, if not directed, from a higher sphere. Holmes would have none of this. Law was simply the product of history and legislation. Its substance at any given time pretty nearly corresponded with what was then "understood to be convenient."

Convenience, that was the key—convenience of the majority. Accidents were bound to happen, with damage to some, and the most convenient solution for society was to let the loss lie where it fell. Holmes points out that in early law the damaging thing could be surrendered to the plaintiff as a total compensation: the body of the debtor to his creditor, the biting dog to the bitten person. As civilization advanced, the debtor was allowed to buy back his body, and the owner of the dog his animal. The absolute liability of the thing became the absolute liability of its owner. Thus, initially, a moral responsibility was at the bottom of the defendant's liability to pay. He had owned the offending thing at his peril.

Holmes now embarks on the development of his great thesis: that the development of law is, in the last analysis, the transmutation of this moral standard into an external one. Society may start with moral responsibility, but that is soon found to be practically inadequate. Actual intent cannot be the test; it must be imputed to persons who behave in a certain way:

A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses is burned in consequence. In this case, an act which would not have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not.

This is true, as Holmes proceeds to establish, in civil as well as criminal liability. The law frequently penalizes, or forces to pay, "those who have been guilty of no moral wrong and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned." Under the common law, a man acts at his peril. But it would have been going too far for courts to hold a man responsible for all the consequences of his acts. He was only responsible for the foreseeable consequences, not those that he had actually foreseen but those which a prudent man (as defined by a judge or jury) would have foreseen. Thus, conduct that is criminal or tortious is conduct that the average member of the community would regard as such. Such conduct we must all avoid, or pay the damages or be jailed or even hanged. But "the tests of liability are external, and independent of the degree of evil in the particular person's motives or intentions."

Holmes rode his horse of the external standard a bit hard through other fields of law. He seemed intent on obliterating the entire question of morality. In contracts he argued that there was no duty on the part of a promisor to perform, but simply an election to choose between performance and the payment of damages. And a "right," he claimed, was nothing but a prophecy: a prognostication that society would back one up if one took such and such a stand. In later years he liked to quote his old professor at Harvard, Louis Agassiz, who had said that in parts of Germany there would be a revolution if one added two cents to the cost of a glass of beer. Presumably, the privilege to buy beer at a certain rate had become a right in that place and time.

If one were to assess The Common Law today as a work of legal history, it might receive only indifferent marks. The texts available to Holmes in the 1870s were often corrupt. The Anglo-Saxon material, for example, began to reach definitive form only three decades later. Yet the book still remains important for its expression of legal theory. His conception of the external standard has had its logical consequence in our modern tendency to eliminate guilt from liability, as seen in workmen's compensation laws and in no-fault automobile insurance.

I have dwelt at some length on The Common Law because I believe that it represents the culmination of Holmes's immersion in matters intellectual. For the next fifty years he was too busy a judge to write books, but he never changed his fundamental views from those stated in 1881. Idealists have attacked his materialism. Is there not an implication in his legal philosophy that moral standards have no place even in the realm of the conscience? Has a man no obligation to his neighbor but what the average citizen conceives as such? Can morality be reduced to simple good manners? And is a good deed good even if directed by an evil motive? Or a bad deed bad even if directed by a good one? Did Holmes not reject all religion?

He was, it was true, an agnostic, perhaps an atheist. He never considered that man was central, or even necessarily important, to the cosmos. He did not believe in a life after death. When his wife died, it took the persuasion of his brothers on the court, apprehensive of the scandal of such godlessness in high places, to induce him to have any funeral service at all. But there was never any question of his own moral standards. He may have laughed at himself for being the heir to a puritan background, but he did not kick against its restraints. He had a deep sense of the importance of being a gentleman—in the best sense of that word—even in a cold and indifferent universe. How can rational men be Christians? he asked Sir Frederick Pollock, the eminent British legal authority, and here is how he answered his own question: "It is like the justification of conventions—I respect a tall hat or the cult of monogamy not from the internal self-satisfaction of the accidents of space and time but from the consideration that the inward necessity of man to idealize must express itself in inadequate and transitory symbols of no value in themselves but reverent for the eternal movement of which they are the momentary form."

Holmes's work on the Supreme Judicial Court of Massachusetts represented a highly creative period in the development of law, and he came to be a leading, if not the dominant, figure of that bench. From the beginning, in 1882, he was happy in his new work. He loved being able to apply his knowledge in the philosophy of law to actual cases, and he found the judicial experience an exciting one. There are few positions in the world of practical affairs where a man can be so much of a scholar and a philosopher as that of judge. Holmes's life was with ideas; he had no use for facts except insofar as they gave rise inductively to general propositions. Years later, in 1919, he was to describe to Sir Frederick Pollock the feelings aroused in him by Justice Louis Brandeis's criticism of his slighting of economic statistics:

Brandeis the other day drove a harpoon into my midriff with reference to my summer occupations. He said you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don't you try something new, study some domain of fact. Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a human notion of how it really is. I hate facts. 1 always say the chief end of man is to form general propositions—adding that no general proposition is worth a damn.

Holmes was an ambitious man, but his ambition lay along severely restricted lines. When his friend Henry Cabot Lodge suggested that he should run for governor of Massachusetts as a step toward becoming a senator, he replied simply, "But I don't give a damn about being senator." He said of Napoleon, "I am not interested by men whose view of life does not interest me." But he was intensely interested in judicial work and looked forward to an even larger opening than was offered by the highest bench of Massachusetts.

Washington was watching him. His reputation for liberalism stood him in good stead under the new administration of Theodore Roosevelt. Holmes's dissent in Vegelahn v. Guntner had alarmed the capitalist world, although the simple language with which he presented the conflict of capital and labor seems indisputable today:

One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.

However, when Theodore Roosevelt appointed Holmes an associate justice of the United States Supreme Court in 1902, it was only after careful consultation with Holmes's and Roosevelt's good friend Lodge, who was then a senator. The President was characteristically candid. He wanted to be sure that Holmes was a good party man, in entire sympathy with Roosevelt's views. Lodge was reassuring, and the appointment was made. Everything went well, from the President's point of view, until the case of Northern Securities v. United States, two years later, when Holmes dissented from the opinion of the majority, which held that the merger of the Northern Pacific and Great Northern railroads was in violation of the Sherman Antitrust Act. Holmes refused to be swept along in the wake of Roosevelt's trust busting. He pointed out that the supposed evil countered by the statute was a union between parties to exclude strangers, a combination to keep rivals out of the business and to ruin those already in it. The statute in no way prevented a combination of companies with the object of increasing the total amount of business performed. Size alone was not objectionable. If it were, he observed, either the Great Northern or the Northern Pacific might already be considered too large.

Theodore Roosevelt was irate. He made his opinion known that Holmes had truckled under to the power of big business, and exclaimed in disgust that he could carve a judge with more backbone out of a banana. It was said that he even contemplated excluding Holmes from further invitations to the White House. Holmes cared little. He always professed a liking for Theodore Roosevelt and an admiration for his way of getting things done, but he never had much respect for his intellect.

Holmes remained on the Supreme Court for thirty years, resigning when he was ninety, in 1932. Meanwhile, he and Justice Brandeis became famous for their dissents against majority opinions. It is a truism to point out that many of these dissents have since become the law. What are today regarded the fundamental rights of workers and unions were long denied because of the judicial doctrine of the sacredness of liberty of contract. Holmes had no particular predisposition toward legislative regulation of business or in favor of labor unions, but his old belief that law represented the convenience of the majority induced him to be very strongly of the opinion that legislatures must be given a wide latitude to experiment.

Dissenting from a majority opinion that denied the power to New York State to set a fifty-cent limit for the markup of theater ticket prices, Holmes said:

Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Amendment, notwithstanding the Fourteenth, to enable a State to say that business should end . . . What has happened to lotteries and wine might happen to theaters in some moral storm of the future, not because theaters were devoted to a public use, but because people had come to think that way.

He was inclined to take a more narrow look at state or federal statutes which cut down on freedom of speech. Where this occurred in time of war, he had to be convinced that there was a clear and present danger to the state in the prohibited utterance. Here, in Abrams v. United States, is one of his most eloquent arguments in favor of the "experiment" of the Constitution:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wage our salvation upon some prophecy based upon imperfect knowledge. 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, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

The rather fuzzy, sentimentalized picture of Holmes, developed by the great claque of his admirers in his old age, as a persistently fighting liberal, always on the side of the underdog, can be misleading. Holmes was first and foremost a judge. Because he did not think it proper for a court to weigh the wisdom of a statute and to superimpose upon a legislature the court's own economic or social predilections, he was inclined to sustain rather than throw out new laws. As a good percentage of such laws during his long tenure on the Supreme Court tended toward the restraint and regulation of big industry, he is sometimes thought to have been in favor of a regulated society. Yet in his correspondence he again and again denies any such predisposition.

He scoffed at socialism, claiming that "the crowd" already had pretty much of the national wealth and asserting that the palaces and yachts of the rich amounted only to a drop in the bucket. He repeatedly expressed his admiration for the giants of industry who seemed to strike him as bigger men than do-gooders and uplifters. And more than once, in defending free speech in his correspondence, he said that it was the right "of a fool to drool." Once even, in a moment of impatience, he exclaimed to the lady sitting next to him at dinner that he "loathed" most of the things that he decided in favor of.

There were times, indeed, when Holmes struck some of his contemporaries as the very reverse of liberal. He regretted the prosecution by the government of cases against antiwar propagandists, but he sustained its right to bring them, and after the Debs decision a package addressed to him with a bomb was intercepted in the post office. He defended the right of the state of Washington to prosecute the publishers of a pamphlet celebrating the glories of nudism because it encouraged "a disrespect for the law," and in Baily v. Alabama he dissented from the majority opinion and argued the constitutionality of an Alabama statute (the so-called Negro peonage law) that made a worker's refusal to perform labor as agreed presumptive evidence of an intent to defraud the employer. Holmes here refused to admit the climate of local prejudice:

We all agree that this case is to be considered and decided in the same way as if it arose in Idaho or New York. Neither public document nor evidence discloses a law which, by its administration, is made something different from what it appears on its face, and therefore the fact that in Alabama it mainly concerns the blacks does not matter . . .

But the opinions just cited are intended only to demonstrate the variety of his thinking. If he loathed some of the things he decided for, it must be remembered that he also loved deciding things that he loathed. He knew that the law could only develop healthily in the way that it had always developed—as a combination of history and legislation, and that for such development judicial restraint was essential. Justice Felix Frankfurter, who succeeded Benjamin Cardozo, who succeeded Holmes, was Holmes's closest disciple in this philosophy, and lived to see his principles discredited by liberals.

Holmes was always an omnivorous reader. Books seemed to provide him with a life that was as necessary as his work on the Court. Again and again in his letters we find him yearning for the summer vacation at Beverly Farms, when he would be able to read all day. His list of titles is so long and various that it is hard to make many generalizations about it, but one may note a primary interest in current books by philosophers of law, history, and science. Holmes wanted to know every possible theory of man's role in the cosmos. Yet he was always willing to try any other work that a trusted fellow reader suggested, and his efforts in this respect were nothing if not thorough. We see him, for example, plunging into the famous French critic Sainte-Beuve at the suggestion of British political scientist Harold Laski and not really much enjoying the experiment, yet refusing to give up until he had read fourteen volumes of the Causeries du Lundi and all of that mammoth work, Port-Royal. He read fiction with less enthusiasm but with considerable insights. He admired the young Ernest Hemingway with reservations, and Willa Cather without them. He read Alfred North Whitehead and Morris Cohen and Bertrand Russell and Oswald Spengler—and also Milt Gross and Anita Loos.

His wide reading brings one inevitably to his correspondence, which is closely bound up with it. Five volumes of this have now been published, including the Holmes-Pollock letters and the Holmes-Laski letters. Holmes and Sir Frederick Pollock were contemporaries and lifelong friends, and both were legal scholars, philosophers, and aristocrats. Both were reserved, independent, strongminded men. In the correspondence, which covers nearly sixty years, their minds met on every kind of legal, political, social or literary problem. The letters make fascinating reading even for those not versed in law.

Holmes's letters to Harold Laski are a bit less interesting. Laski was a generation younger and treated his correspondent with marked deference. Holmes was very fond of him, but he was inclined to use him as a literary retriever. He wanted the names of all the books Laski was reading, and he was supplied with a feast. Yet he did not always, as with Pollock, follow up on topics that Laski evidently wished to discuss. At rare moments, however, Holmes would let himself go in a bit of natural description. One can only wish that there were more of such passages as the following: "The event of the week has been the opening of the Freer Gallery in the Smithsonian grounds—a beautiful building—with a square in the middle a patch of green, a little fountain and two peacocks and a peahen. The lady it is said will have nothing to do with one of them and he flocked apart and took the sunlight. The other displayed his fan and shivered with amorous anticipations."

Fanny Holmes died in 1929 at the age of eighty-nine, and Holmes wrote to his friends that she had made life poetry for him. He said that he was glad that she had gone first, for he felt—and one is sure correctly—that she would have been worse off without him than he without her. It was only too evident that he had constituted her entire life, whereas she had hardly expected—or even wanted—to constitute all of his. In the following year Charles Evans Hughes was appointed chief justice, and Holmes wrote to Laski that he had lunched at the White House, and that Mrs. Hoover had told him that the President would have liked to appoint him but had thought that he should not be burdened. Indeed, he did not want the appointment; he no longer cared for anything that anyone could give him. On January 12, 1931, he retired from the Court. Harvard Law School continued to send him one of its brightest graduates each year, to be his law clerk and secretary, until his death in 1935, just before his ninety-fourth birthday.

In the final years Holmes became a national hero and was inundated, almost to the point of asphyxiation, with laudations. His fame extended far beyond the legal field, and he was elevated to a kind of old national darling to thousands who could not have understood a page of The Common Law. Holmes's attitude about this outburst of fame was amiable enough, but he was never one to value highly any praise that was not discriminating. A word of approval from Sir Frederick Pollock was worth a thousand hosannas. His life had been a happy one, because he had had his chance and had used it, the chance to break his heart "in trying to make every word living and real." The only tragedy would have been to have missed it, a thought which had haunted him in the long campaigns of the Civil War. He never forgot the friends of the Twentieth Regiment who had lost their chances at Ball's Bluff, or Antietam, or Fredericksburg.

David H. Burton (essay date 1979)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 3599

SOURCE: "Understanding The Common Law," in Oliver Wendell Holmes, Jr.What Manner of Liberal?, edited by David H. Burton, Robert E. Krieger Publishing Company, 1979, pp. 13-20.

[In the following essay, Burton outlines Holmes's major points in The Common Law.]

In the opening sentence of the great book Holmes spoke his objective: "to present a general view of the Common Law." He proposed a methodology: "We must alternately consult history and existing theories of legislation." And finally he stated his purpose: To understand the law, for while today "there are a great many rules which are quite sufficiently accounted for by their manifest good sense, . . . there are some which can only be understood by reference to the infancy of procedure among the German tribes, or to the social condition of Rome under the Decemvirs." In laying down these general propositions Holmes offered two caveats. "One, is that of supposing because an idea seems very familiar and natural to us, that it has always been so." The other is "the opposite of asking too much of history. We start with the man full grown. It may be assumed that the earliest barbarians whose practices are to be considered, had a good many of the feelings and passions as ourselves." Asking his listeners—and later on his readers—to bear in mind such principles Holmes proceeded to expound the common law with boldness and originality.

He first construed the early forms of liability, holding that "early English appeals for personal violence," for example, "seem to have been confined to intentional wrongs." "Intentional" character implied moral culpability, to be sure. But could an inanimate thing, a falling tree, a runaway wagon, in any way be considered morally responsible for injuries sustained in an accident? For that matter, could the ferocious dog be held responsible for biting his owner's neighbor? Moral culpability must be confined to moral agents. Yet early law took vengeance upon the offending object: the fallen tree whose chips were scattered to the wind. As civilization advanced, vengeance was replaced by compensation and liability was transferred from the agent to the responsible owner. As Holmes pointed out: "The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rules remain. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career." As an example Holmes suggested that in Roman legal procedures the desire for revenge applied initially to torts, a practice which sooner or later was applied to a breach of contract, because "the remedies for the two is not found ready made." Furthermore, Holmes argued for similarities between Roman law and German tribal custom, that is, vengeance developed imperceptibly toward a non-violent satisfaction for the injury committed while moral culpability replaced the animism ascribed to ships, wagons, and mad dogs.

Conclusions drawn from such considerations enabled Holmes to reject the conservative understanding of law as something fixed and final. Looked at logically, "each new decision follows syllogistically from existing precedent. . . . Precedents survive in the law long after the use they once served is at an end and the reason for them forgotten. The result of following them must often be failure and confusion from the merely logical point of view." So much for form. But what about the substance—the law? Law is made by judges on "considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of the instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis." Law, in Holmes's own words, was administered by able and experienced men who know too much to sacrifice good sense to the syllogism. This explication of early forms of liability concluded on two notable observations: One, the law "is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off." In so saying, Holmes was stating a basically pragmatic principle as applied to the law. Two, "while the law does still and always, in a certain sense, measures legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones from which the actual guilt of the party concerned is wholly eliminated." This latter axiom he then set about to demonstrate by an examination of criminal law.

Holmes commenced his treatment of criminal law by contending that presentment was "the child of vengeance," and this desire "imparts an opinion that its object is actually and personally to blame." But the question is whether such a standard is still appropriate in contemporary society. While admitting that any form of punishment satisfied a thirst for vengeance in some way, and that criminal law had improved only gradually, still the modern view of criminal law, Holmes thought, must be punishment meted out to protect society from actions harmful to it and to its members. Punishment is not intended to reform the criminal but to deter crime. If the prisoner pays with his body, society benefits. This social reference is crucial, of course, to Holmes's understanding of all law. In criminal matters as well as in others, "the first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong." Holmes believed that the law should not encourage the passion of revenge, either in individuals or the state.

The social aspect of criminal law was brought out in still another way. Taking direct issue with the Kantian proposition that the individual can never be sacrificed, can never be treated as a means to an end, Holmes asserted: "probably most English-speaking lawyers would accept the preventive theory without much hesitation." No society has ever admitted that it could not sacrifice individual welfare to its own existence, as both military conscription and the right of eminent domain demonstrate." Such a contention led Holmes to utter one of his most famous dicta: "the ultimata ratio, not only regnum, but of private persons, is force, and that at the bottom of all private relations however tempered by sympathy and all the social feelings, is justified self-preference." What Holmes was speaking in favor of was that the general principles of criminal and civil liability were the same. If the criminal were judged morally, not socially, his abnormal instincts, his want of education, his lack of intelligence, and whatever other defects he might exhibit would have to be taken into account. Yet for the most part these matters were subordinate to what was thought best by society for society as specified in laws and judicial opinions. The individual, therefore, was a means, "a tool to increase the general welfare at his own expense." Such a position, Holmes was to admit, was not an all-encompassing rule. For example, the principle of killing in selfdefense is sanctioned by society—and in the interest of society—even though the act of killing is indeed intentional. On the other hand, ignorance of the law can never be allowed to excuse its violation. Society would surely be the loser if it permitted violations of the law because the offender could plead ignorance. The social fabric would disintegrate, and society would be doomed. Without intending to deny the possible importance of "personal unworthiness," the purpose of criminal law was "to induce external conformity to rule." Even so, personal blameworthiness "was judged according to standards set by society." This was exemplified in Holmes's argument that according to current morality, a man is not so much to blame for an act done under the disturbance of great excitement, caused by a wrong done to himself, as when he is calm." The matter of house burning was another set piece employed by Holmes to illustrate his views. A man may intentionally destroy his own property. But if his house is in close proximity to others and these houses are fired in consequence, he is guilty of arson in as much as the effect of his action has had evil social results. Holmes neatly summarized his theory of criminal liability as follows: "All acts are indifferent per se. Acts are rendered criminal because they are done under circumstances in which they will probably cause some harm which the law seeks to prevent. The test of criminality in such cases is the degree of danger shown by such experience to attend that act under those circumstances." In this step by step way, the social character of criminal activity was elucidated and established.

Having delineated the social origins of law in matters relating to civil liability and crime, Holmes proceeded to apply the same yardstick to torts. The business of the law of torts, as he stated it in The Common Law, "is to fix the dividing line between those cases in which a man is liable for harm he has done, and those in which he is not." In such actions if the law requires satisfaction "the reason for doing so must be found in some general view of conduct which every one may fairly expect and demand from every other, whether that other has agreed to it or not." The law of torts admittedly abounds in moral phraseology—malice, fraud, intent, and negligence—all of which imply that a guilty person must have had some moral shortcoming. While certain authorities, like Austin, accepted such a conclusion, others insisted that man always acted at his own peril. Holmes proposed to advance an alternate theory, namely, that man acted at his own peril in so far as society would expect a prudent man to act and to foresee the consequences of his actions. And in as much as the expectations of society change, the law itself may change accordingly. Such modifications in the expectations of society were always "politic," that is according to public policy, or what the public would support. As Holmes wrote: "A man may have as bad a heart as he chooses, if his conduct is within the rules." The standards of the law were external standards. Law was wholly indifferent to the internal phenomenon of conscience. It was in his discussion of torts that Holmes offered one of his most insightful descriptions of the life of the law.

The growth of the law is very apt to take place in this way. Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than of articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little farther to the one side or the other, but which must have been drawn somewhere in the neighborhood of where it falls.

In this way exact distinctions have been worked out upon questions in which the elements to be considered are few. For instance, what is a reasonable time for presenting negotiable paper, or what is a difference in kind and what a difference only in quality, or the rule against perpetuities.

Just as law grew in response to the needs of society so social requirements took precedence over those of the individual. The law "does not attempt to see men as God sees them." It only considers what is blameworthy in the average man, a determination made by society and not by moral theories.

The "actual wickedness of the kind described" in the use of such words as fraud or malice, "is not an element in the civil wrongs to which those words are applied," thought Holmes. The basis of liability in torts was the knowledge of what effect the actions performed would have. One example, fraud, may suffice to illustrate Holmes's viewpoint. Deceit was a necessary element in fraud and as such was a "notion drawn from the moral world, and in its popular sense distinctly imports wickedness." The "elements which make it immoral are the knowledge that the statement is false, and the intention that it shall be acted upon." But the defendant in an action involving fraud is not chargeable because he committed an immoral act but because of proof that the defendant knew the other party intended to act upon deceitful information. "The standard of what is called intention is thus really an external standard" of known circumstances. Looked at critically "we find the moral side shade away." Notwithstanding such bold assertions of the social cast of the law Holmes was prompted to state "the moral starting-point of liability in general should never be forgotten, and the law can not without disregarding it hold a man answerable for statements based on facts which would have convinced a wise and prudent man of their truth." Such a conoession to morality was indeed a qualified one, for Holmes went on to observe that "starting from the moral ground [the common law] works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that." In such a context Holmes was led to make one of his most succinct explanations about the growth of law.

The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by police without references of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community.

But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril.

For Holmes the socially external standard must always be the determining standard.

This critical approach to the law Holmes illustrated in his treatment of bailment. Admitting that the only existing theories on the subject came from Germany and that "the German philosophers who have written upon the law have known no other system than Roman," some rules which he discovered in his research lay clearly against what the German legal theorists had come to regard as first principles. At least Holmes wanted to avoid the hasty assumption that such principles were universal. He had discovered procedures which were kindred to early German folk-laws in fact. While not claiming that the law of bailment was of pure German descent, it possessed enough German elements in Holmes's judgment to challenge the German philosophers who had insisted on Roman sources. Occasionally in The Common Law the author was satisfied to question existing assumptions without offering a new thesis fully limned.

A critical attitude was sustained in Holmes's discussion of "possession." He again came out openly and unequivocally against the "a priori doctrines of Kant and Hegel" as well as those of "the speculative jurists of Germany, from Savigny to Ihering." Disagreement arose from the German claim to universal authority. To Holmes the "possessing of a right as such was intrinsically absurd." Tracing theories from Kant back to Rousseau and the Massachusetts version of the American Bill of Rights, which stressed the freedom and equality of men, he dismissed them one and all in as much as they made man an end unto himself. Thus, if an individual was in possession of a thing, the law protected him in that possession because it was an extension of the self. Absolutism of this sort was anathema to Holmes. He was "one who saw in the history of law the development of society" and who was "apt to think that the proximate ground of law must be empirical." "Law being a practical thing must found itself on actual forces." Possession was to Holmes a matter of instinct which he was prepared to argue forcefully.

It is quite enough, therefore, for the law, that man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again. Philosophy may find a hundred reasons to justify the instinct, but it would be totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves. It if should do otherwise, it would become a matter for pedagogues, wholly devoid of reality.

In short, instinct was "that mightier body of law than the Roman."

Because Holmes was writing about "possession" at a time when property rights had taken on a sacred patina in American society, he was moved to discuss the nature of "rights" at some length in his chapter on Possession. It may be particularly useful to quote him fully, for by inference he was evaluating all rights, not excluding the "inalienable rights" of life, liberty and the pursuit of happiness as expressed in the American tradition.

A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force. Just so far as the aid of the public force is given a man, he has a legal right, and this right is the same whether his claim is founded on righteousness or iniquity. Just so far as possession is protected, it is as much a source of legal rights as ownership is when it secures the same protection.

Every right is a consequence attached by the law to one or more facts which the law defines, and wherever the law gives any one special rights not shared by the body of the people, it does so on the ground that certain special facts, not true of the rest of the world, are true of him. When a group of facts thus singled out by the law exists in the case of a given person, he is said to be entitled to the corresponding rights; meaning thereby, that the law helps him to constrain his neighbors, or some of them, in a way in which it would not if all the facts in question were not true of him.

Such considerations were of course legal. "What may be their relation to moral rights if there are any, and whether moral rights are not in like manner logically the off-spring of moral duties, are questions which do not concern." Such concern was for the speculative philosopher who approached the law from outside, while the jurist came to his subject from within.

What Holmes was doing in his analysis of the law was imparting to it objectivity by reference to the rules of society and public policy. This he carried over to his discussion of contracts, one of the most sensitive and historic of all legal considerations. The common element in all contracts was a promise. One promise may be distinguished from another—for example, I promise you one hundred bales of cotton—by the degree of power possessed by the promisor over the event involved. But according to Holmes, the law does not require the promisor to have any assurance that he either can or will deliver on the promise made. In the moral world it may be an obligation to promise only what one can fulfill, but not so at law. "I take it that a man may bind himself at law that any future event shall happen." By so arguing Holmes escaped the idea that a contract was a "qualified subjection of one will to another, a kind of limited slavery."

Equally practical for contemporary social requirements, damages levied in a breach of contract were not as great as those justified in tort. Furthermore, when contracts were voided the law displayed no concern with the actual state of the party's mind. "In contract, as elsewhere, [the law] must go by externals and judge parties by their conduct." If there are distinctions which might account for voided contracts, these distinctions were "founded in experience, not in logic," an observation which leads back unerringly to the prolegomena of The Common Law.

David H. Burton (essay date 1980)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 9318

SOURCE: "The Shaping of Wendell Holmes," in Oliver Wendell Holmes, Jr., Twayne Publishers, 1980, pp. 13-35.

[In the following essay, Burton recounts major influences on Holmes's thinking and surveys his early writings.]

The law was part of Oliver Wendell Holmes, Jr.'s, natural inheritance. Lawyers had been in the family at least from the time of the sixteenth century—Thomas Holmes of Gray's Inn—and judges, too, a maternal grandfather, Charles Jackson, having been a justice of the Supreme Judicial Court of Massachusetts. For his part, immediately upon completion of Civil War service, Holmes commenced his legal studies at Harvard and for the next seventy years, down to his death in 1935, his career never deviated from his commitment to understanding the meaning and usage of law. As a student, attorney, scholar, judge, Supreme Court justice, and elder legal statesman, Holmes came to value the law not as an abstruse exercise but as a living, vital aspect of American society. But Holmes, who was born in Boston on March 8, 1841, had a wider birthright than the law itself, however much in after years he was drawn to it. A world of thought, a native city of intellectual and moral preoccupation, a family diverse in learning and accomplishment, a father of wisdom widely proclaimed, all this and the total of its implications passed on to Wendell Holmes. By the time he had reached the age of twenty he had come to know who he was and what he was, though he was far less sure of what he wanted to become. If a number of elements associated with both "thinkers" and "doers" met in him, he was the richer for it. But the intersection of so many and varied strains, at the same time, made for a tension between father and son, between reality and the theory of law, between a conception of man and the cosmos—tensions which Holmes never completely exorcised and which in a unique way help to account for his distinctive place in the historical unfolding of law in America.

I INHERITANCE

Holmes's world of thought had roots in the Puritan mind. Just as John Cotton and his generation had sought to reconcile divine revelation with a thriving humanism, producing thereby an imposing if ephemeral Puritan synthesis, Holmes encountered a similar conflict between traditional attitudes and scientific imperatives in his study and uses of the law. No system builder, he nonetheless reflected his Puritan forebears in an earnest search for truth. Unable ultimately to capture that elusive commodity either in constitutional provision or in judicial opinion, Holmes was fated to remain an active philosopher-judge for all his years. He retained throughout an awe bordering on reverence for the "august Puritan figures" from the past. His own especial dedication to the law was the result of his Puritan temperament. For him "life was its own answer. He was a workman who found the stuff and patterns within himself, whose reward was their union."1 Yet Holmes saw clearly that he had out-grown the Puritan faith, while valuing its legacy of earnest endeavor. "Even if our mode of expressing wonder, our awful fear, our abiding trust in the face of life and death, and the unfathomable world has changed, yet at this day, even now, we New Englanders are still leavened with the old Puritan ferment; our doctrines may have changed, but the cold Puritan passion is still here."2 Such words as these, delivered on the occasion of an historic anniversary of the founding of the First Church in Cambridge, where his grandfather Abiel Holmes was once pastor, acknowledged his Puritan debt.

Because the Puritan beliefs had yielded to the frontier as well as to the new learning of the century of Enlightenment when Massachusetts grew from colony to province to state, Holmes came to respect eighteenth-century thought and to imbibe its revolutionary philosophy. American freedom was bred in his bones and one day he would answer a call to arms in defense of the Constitution and the Union, edifices built as much on ideas as on action. By the time Holmes was born, however, rationalism had been generously streaked with romanticism and reform was in the air. If America was to be true to its promise, it had to cleanse itself of slavery and a dozen other evils. Holmes as a young man surely was touched by such moral fervor which aimed at nothing less than a national rededication. He was a convinced abolitionist in the 1850s while at Harvard and viewed his Civil War enlistment in part as a commitment to the destruction of human slavery. But like his father, who refused to become either an abolitionist or a pacifist, he would remain aloof from causes and crusades once the passions unleashed by war had a chance to cool. Holmes was, in fact, a true Yankee, "torn between a passion for righteousness and a desire to get on in the world."3 In the tension discoverable in his outlook, the distance between "is" and "ought" he kept manageable because of the eminently human faith and optimism of men like Ralph Waldo Emerson, whom he knew so well as a boy. Years later Holmes recounted to a friend how one day he met Emerson unexpectedly on the street and on impulse said to him, "If I ever do anything, I shall owe a great deal to you—which is true."4 Whatever authority the new scientific postulates about the nature and the fate of man were to have on the developing mind of Holmes, the hopefulness of the reforming generation left a lasting mark on a nature which remained openly friendly to honor and sacrifice. "You and I," Holmes was to write to his close friend Sir Frederick Pollock years later, "believe that high-mindedness is not impossible to man."5

It requires no flight of imagination to visualize that meeting of Holmes, the boy, and Emerson, the mystic, on the streets of Boston. Boston was a city famous for its great men of philosophy and literature and every kind of learning. To happen on an Adams or a Longfellow or to glimpse Asa Gray or James Russell Lowell was typical of life in that holy place. It was the "hub of the universe," according to Holmes's phrase-making father, Dr. Holmes, "the Autocrat of the Breakfast Table," and the intellectual world revolved around it. Boston filtered the elements derived from the larger realms of thought beyond its boundaries. Not that the city gave its approval to certain beliefs only. The Boston mood could be open and expansive, albeit capable of parochialism and intellectual priggery of a high order if the occasion warranted it. Had not the Autocrat himself pronounced that Bostonians "all carry the Common in our heads as the unit of space, the State House as the standard of architecture, and we measure off men in Edward Everetts as with a yardstick." The Saturday Club, with its storied membership meeting monthly at the Parker House, was the field for Boston's intellectual jousts. Here ideas flowed as copiously as did the wine, and if the results did not strictly add up to in vino Veritas, the pursuit and isolation of falsity in man, mind, and morals was a game superbly played. To be detached and critical was a Boston hallmark with which Holmes readily identified, though in his years as a legal scholar and jurist he did not succumb as Boston did to the complacent belief that his judgments were necessarily correct because he had uttered them.6

In the longer view Holmes would not feel comfortable as Indian summer engulfed New England. His eye was fixed on a farther, wider horizon, where Boston certainties might appear as "a jingle of words with a jangle of contradictory meanings."7 Apart from such considerations of the mind, Boston was home to Wendell Holmes. "I've always lived in Boston," was the terse statement in his college autobiography for the Harvard Alumni Album, a remark offered with the quiet pride of an Athenian of old.8 It was a town to be enjoyed for its houses and gardens, its streets and architecture, its buildings reminders of a rich, persuasive history, and all these things replete with a thousand personal associations as well. It was a place to return to for refreshment after days of battle or months of numbing fatigue on the Supreme Court.

In that same sketch for the Harvard Album there is an apt description of Holmes's family and his sense of it. "All my three names," he wrote, "designate families from which I descended. A long pedigree of Olivers and Wendells may be found in the book called 'Memorials of the Dead—King's Chapel Burying Ground.' . . . Some of my ancestors have fought in the revolution; among the great grandmothers of the family were Dorothy Quincy and Anne Bradstreet ('the tenth muse'); and so on. . . ."9His earliest American forebear was one David Holmes, born in England about 1635, died in Milton, Massachusetts, 1666. Within a brief time the Holmes family became both plentiful and successful. John Holmes, David's son and a surveyor of some skill, built a sawmill and began accumulating land. John's son was "Deacon" Holmes, and after him came another David, who was a Revolutionary War officer, then the Rev. Abiel Holmes, a Yale man and a clergyman who was the father of Dr. Holmes and thus the grandsire of Wendell Holmes. The first Wendells were in America by 1640, coming out of Holland. On the Wendell side of the family Holmes was related to Wendell Phillips, Richard Henry Dana, and William Ellery Channing. Added to this, Wendell's father had married a second cousin, Amelia Jackson, giving the impression that the family was at once numerous, distinguished, and closely knit. Amelia Jackson's father, Judge Jackson, was a landowner who provided his daughter and son-in-law with their family house in Montgomery Place as a wedding gift, a successful businessman and a jurist. If the Holmes side of the family was noted for its learning with a dash of piety, the Jacksons introduced a preference for the practical which was to serve Wendell Holmes in good stead. Unlike his contemporary, young Henry Adams, Holmes grew up in Boston conscious of the place his ancestors had prepared for him in life and happy with the prospects. When in 1872 he married Fanny Bowditch Dixwell, the New England connection was complete. Fanny was the granddaughter of the wellknown writer on navigation Nathaniel Bowditch; her father, E. S. Dixwell, a brilliant student two classes ahead of Dr. Holmes at Harvard, was a proper Boston schoolmaster. The wild streak in the Dixwell blood—it was said that John Dixwell had helped in the execution of Charles I—had been transmuted to a quiet joie de vivre, of which Fanny Bowditch Dixwell, luckily for Wendell Holmes, enjoyed a generous share.10

II FATHER AND SON

Unlike many sons of a famous parent, Wendell Holmes managed to escape from the long shadow cast by his father. Indeed, unlike most children so favored, he came to exceed his parent in age and in historical reputation, if not in wisdom. But growing up under the roof as well as the shadow of the Autocrat was not a condition easily borne, despite the obvious advantages it entailed. The more Wendell learned the more he was likely to argue with his father and dissent in the bargain. If it is remembered further that Holmes brought his bride to his father's house and did not establish his own home until three years had passed, the opportunities for distemper between an egoistic father and his intellectually aggressive offspring must have been numerous. Wendell, anxious to go his own way, saw in his father's household presence, as in his household erudition, too much of what was intimidating and inhibiting. But the clash of two such self-confident personalities—including the possibility at least that in later years the younger Holmes took a special pleasure in the prospect of outstripping his father in the world of men and affairs—cannot disguise the influence which Dr. Holmes exerted on his eldest boy.11 For one thing, freedom of thought in religious matters passed clearly enough from father to son. For another, it appeared to "observers of hereditary talent," that Holmes Jr.'s "subtle and original following out of analogies and the presentation of familiar elements in fresh lights" could be seen as derived on a straight line from Dr. Holmes.12 More basic was the son's scientific attitude of mind: antimetaphysical, skeptical of development of constants and universals beneath the flux of change—all this learned at home far more so than at school. As Dr. Holmes was prone to view free will as illusory, substituting heredity and environment for Calvinistic predestination, Judge Holmes, for example, came to doubt the deterrent value of criminal punishment, holding that most criminal actions were but responses to stimuli. Wendell agreed unequivocally with his father that man's free will was often severely limited by chance circumstances and surroundings. Like his father he was dubious about the prospect of self-direction. Human frailty caused them both to question conventional concepts of moral responsibility. Though young Holmes found it uncongenial to confide in Dr. Holmes as to the origins and direction of his philosophical ideas, his broader frame of reference owed much to his father's scientific convictions. Nor for all of the irritants present in their relationship, real as they were but undoubtedly exaggerated with the retelling, should the natural affection of father and son be ignored. What may have been lacking in sentiment was made up for by admiration and respect.

The birth of Dr. Holmes's first son was for him an occasion of pride and promise. He wrote his sister, Ann, within hours of the event, describing the baby as "a little individual who may hereafter be addressed as—Holmes, Esq. or The Hon—Holmes, M. C. or His Excellency—Holmes, President."13 Such hopes are perhaps no more common to men of distinction than to others, even though the air of confidence in Dr. Holmes's fancy was thoroughly consistent with his Brahmin mentality. By the age of six "o.w.h."—his father used this style of designating the little edition of O.W.H.—was attending a Dame's school and in the autumn of 1848 enrolled at a boys' academy run by a T. Russell Sullivan. The master was a former Unitarian minister who lost no occasion, whether the subject be the delivery of pure water to the city or the prospecting for gold in California, to invoke the name and the wonderful power of the Lord. After four years under Sullivan's tutelage, Holmes entered Dixwell's Private Latin School in Boylston Place, having impressed Master Sullivan with "habits of application," "proficiency in all the English branches," and a "love for study."14

III SCHOOL AND BOOKS

Epes Sargent Dixwell, whose son-in-law Holmes was to become, had some claim to recognition as a classical scholar. Though he had read law and had engaged in a little practice, his true calling was that of schoolmaster. With an eye trained on the Harvard College entrance examination which stressed Latin, Greek, ancient history, and mathematics, Dixwell provided his charges with a solid grounding in these fundamentals. No narrow pedant himself, as his interest in conchology and membership in the Boston Society of Natural History testified, Dixwell saw to it that his students also read French and German and studied English as well as modern history, though these lastnamed subjects were approached with a good deal less intensity. Such formalities aside, Dixwell seems to have discovered in the young Holmes an apt companion for walks and talks after school as the two made their way home; and their friendship remained steadfast in the years to come.

In conjunction with schooling Holmes had an outlet for his budding literary tastes in the novels of Walter Scott—Ivanhoe, Old Morality, and the Fortune of Nigel—as well as the writings of Dickens, Thackeray, Tennyson, and Macaulay. Lesser authors of the caliber of Mayne Reid, G. R. P. James, and Sylvanus Cobb, Jr., also offered Holmes stories of interest. Such boyhood enthusiasms as he displayed in reading Scott, for example, who was his favorite, provided a wholesome balance to the classical-language drills he daily faced at Dixwell's. Beyond school, and especially from his father and his mother, young Wendell learned the code of a humanized Christian ethic. Honor, courage, honesty, diligence, fidelity, while they all might be assumed, were nevertheless inculcated by precept not more than by example. But it was a practical morality Holmes tended to embrace as well as a highly personalized one, which even as a youngster he put to use. One of his recollections from childhood had to do with this practical brand of morality. Was it ever right to lie, he once asked his cousin and closest chum, John T. Morse, Jr., as the two boys were playing one day on Boston Common. When his companion answered "No," Holmes offered him a supposition. Suppose, he said, they were to see a man who, running toward them terrified of pursuers he knew to be close at his heels, bounded into a nearby thicket. Would it be wrong, queried Holmes, to deny to the pursuers any knowledge of the whereabouts of the man? Both boys concluded that it might be indeed the right and necessary thing to do in order to save the hare from the hounds.15In morality, as in the law, circumstances were known to alter cases.

Holmes was to survive three woundings during the Civil War, no little tribute to his good luck and to a certain physical toughness and resilience. As a youth he was not devoted to outdoor sports, and it was not until his army days that he learned to ride. Holmes is best thought of as a typical lad of his time. His greatest fun was sleighing on the hills of Boston. He also liked to row on the Charles, a pastime his father greatly encouraged. In 1849, when Wendell was about eight years old, Dr. Holmes built a summer house for the family near Pittsfield on land which had been in the family for generations. The site was on the Lenox Road and was called Canoe Meadows; it encompassed some 280 acres. Such a place was perfectly suited to children's holidaying, for by this time the Holmes family had expanded to include a sister, Amelia, and a brother, Edward. Here the children were free to fish and swim, pick berries, and explore the woodlands round about. This was the red-skin interlude for Wendell which schools introduce between the fast flowing tears of the child and the man: sitting at Xanthus-side amidst the camp fires or witnessing the battle in the West Country where Arthur fell. Holmes later spoke of these days as "my first recollections of the country—and what we love and revere is largely determined by our earliest memories."16

By his mid-teens Holmes had discovered a fresh and unusual outlet for his energies and his imagination. He had attained a feel for art and procured a set of etching tools and materials. Never minded to devote his life to drawing, this interlude proved great fun for him and at the same time diversified and enlarged his appreciation of the world about him. The knowledge he acquired of the techniques of woodcut, wood-engraving, and lineengraving was remarkable. Such drawings as he made were carefully done, proficient if not inspired; but he was shortly convinced that his efforts lacked "that final wiggle of genius.17 Later, at Harvard, Holmes wrote a piece for the Harvard Magazine, "Notes on Albert Dürer," in which he sought to fuse his instinctive yen for art and his developing philosophical outlook. In fact his appreciation of art and artists remained a consistent part of him, though in later years he might be more prone to utilize his fondness for art to point up a larger moral observation. Addressing the Fiftieth Anniversary Dinner of his Harvard class in 1911, for example, he offered the thought: "Life is painting a picture, not doing a sum," one of those capsulized judgments with which he delighted his circle.18

Meanwhile Holmes also fed his spirit with more serious reading. Lamb's Dramatic Poets and The Prometheus of Aeschylus were books taken from library shelves to be read with evident satisfaction. Vaughan's Hours with the Mystics he pondered while still at Dixwell's, a book which he was later to tell Pollock constituted a "transit from boy to man."19 And he had commenced a serious consideration of Plato which grew out of his course in Greek at school. Emerson—"Uncle Waldo," as Holmes affectionately knew him—had advice when Wendell confided to him that he was reading Plato: "You should read Plato at arm's length. Say to him: 'You have been pleasing the world for two thousand years; see whether you can please me.'"20 Emerson's counsel appealed to him; his own critical awareness had begun to take shape and direction. He had clearly outgrown Dixwell's Private Latin School and was as ready as any of his age for entrance into Harvard College. His father might have said he was more ready than most of his fellow students. As it turned out, Harvard was to be a set of expectations, some fulfilled and some not, for O. W. Holmes, Jr., Class of '61.21

IV HARVARD COLLEGE

The disappointments attending Holmes's years at Harvard (1857-1861) were born of incongruity; yet, paradoxically, this same incongruity enabled Holmes to forge for himself an inquiring and critical mind. He was no more trained to ask big questions or to challenge the traditional assumptions which governed the educational enterprise of Harvard College in the 1850s than were Master Dixwell's other graduates. Nor was he at first minded to do so. He made the transition from school to freshman year in college easily enough because the difference between the two was a matter not of a kind but of degree. By the close of his course of studies, however, he had become disenchanted with the limiting effect of indoctrination, recitation, and institutional discipline which summarized the educational life-style at Cambridge in those years. By formally and semi-officially seeking to deny Holmes (and to his fellow students as well) the spectrum of universal knowledge, by dismissing as insignificant Darwin's scientific findings, for example, the intellectual authority over her students which Harvard wished to exercise produced the reverse effect on Holmes. Like certain of his college friends, William James among them, Holmes wanted to twist the tail of the cosmos, and was not content to be the receptacle into which traditional morality and philosophical orthodoxy might be poured in carefully measured quantities. If Harvard was "an emphatic and unbuilding force in the life of Holmes," she taught her students, in Holmes's own phrase, "in ways not to be discovered, by traditions not to be written down, help[ing] men of lofty nature to make good their faculties."22 As Holmes's mind fleshed out, Harvard College proved less and less able to contain it. After a while he would no longer seek to conform, and for the last three years, with an increasing intensity, he agitated against the educational system.

The intellectual cross-purposes of institution and student notwithtanding, the total of Holmes's life at Harvard was not merely tolerable but pleasant to the point of enjoyable. As a freshman he took rooms at Mr. Danforth's on Linden Street, adjacent to but beyond the College Yard. He remained in residence there for his four years, thus avoiding the worst disciplinary features of dormitory life. All in all these arrangements provided more suitable an environment than living in college, giving Holmes a better chance to study, reflect, and write; he had come to Harvard seriously bent on learning. He was also active in the social clubs: the Institute, the Hasty Pudding, the Porcellian, and the Alpha Delta Phi. For a while at least he was a member of the Christian Union, an organization pointedly opposed to the highly orthodox and religiously rigorous Christian Brethren.23 If little is known of the young collegian's social life beyond Harvard, in the drawing rooms of the best families of Boston and Cambridge, there is no reason to hold that the handsome and articulate son of Dr. Holmes lacked for female admirers. In his "Notes to Account of My First Wound," composed just after his first Civil War encounter at Ball's Bluff, he wrote: "While I was lying on the island, one of the thoughts that made it seem particularly hard to die was the recollection of several fair damsels whom I wasn't quite ready to leave."24 Certainly he made close friends with fellow students. Norwood Penrose Hallowell, a Philadelphia Quaker who was to be the Orator of the Class of '61—as Holmes was Class Poet—was the best among them. Hallowell later served in the Twentieth Massachusetts Volunteer Infantry, Holmes's regiment, was wounded at Antietam, and remained a life-long friend.

It would have been remarkable had young Holmes not strayed beyond the boundaries of College discipline and decorum as rigidly laid down and relentlessly enforced by the faculty, regulations which President Eliot in his 1869 inaugural address slightingly referred to as "petty." Sanctions were placed on an endless list of indulgences large and small: smoking in the Yard, missing chapel, breaking windows (something of an undergraduate obsession), blaspheming. The result was a state of near-constant warfare between faculty and students. By living off campus Holmes avoided conflict with a good many of these rules, not that he was inclined to break them all. Rather his resistance to the ways of Harvard was concerned more with what he was taught, not with how he was to behave. As one of the three senior editors of the Harvard Magazine he drew the ire of President Felton when disrespectful language characterizing a retiring professor found its way into the columns of the magazine. On another occasion the faculty voted a public admonition to Holmes for "repeated and gross indecorum in the recitation of Professor Bowen."25 Bowen's insistence on religious orthodoxy as the one sound foundation for human behavior had simply become too much for Holmes in his senior year. Given the number of temptations a maturing, critical student must have encountered along the way, the infrequency of penalties levied against Holmes may be the more significant factor after all for estimating his self-restraint. Such considerations, further-more, may be best seen as unavoidable obstacles which simply had to be overcome if students were "to make good their faculties." In the case of Holmes he made good the opportunity to pass out of Harvard not merely as one experienced in protesting against the system but as one equipped with a personal and noble philosophy which, having fashioned it himself, became part of him.

Wendell Holmes left a considerable record of his progress along the paths of the learning and the intellectual independence for which he is well remembered. His sophomore essay, "Books," is a useful early reference point. In its passages Holmes insists that students must not be content with creeds which define all the possibilities and then say, "Thus far shall ye think, and no farther." He contends, instead, that "we must, will we or no, have every train of thought brought before us while we are young. . . ."26 This call for an intellect open to the universe was not, at so early a phase of his Harvard career, a hostile reaction to the college's orthodoxies; the sentiments and convictions expressed in "Books" were matters of the Holmesian temperament. He was, as he would remain, concerned with "conclusions, or of such facts as enabled him to arrive at conclusions, on the great issues of right and wrong and on the relation of man to God." By calling for a life of the mind, as opposed to a life taken up merely with events, Holmes argued that books must be the starting point. Not alone the works of Shakespeare, Montaigne, and Goethe, but Plato and Confucius, and "the Buddhist and Zoroastrain sacred books" as well. As he remarks in his essay, "books are but little seeds after all, seeming insignificant before the merest weed of real life; but they lie soaking in our minds and when we least expect it, they will spring up, not weeds but supporters that will be our aid in the sorest struggles of our life."27 Behind the sententious prose of the Harvard sophomore Holmes's mind was beginning to coil. It would draw together tighter and tighter over the course of his schooling before and after the Civil War, set to spring loose upon the law as upon all of life.

The case for books having been amply stated, what books in particular appear to have absorbed Holmes's energies in these years, apart from college texts like Bowen's The Principles of Metaphysical and Ethical Science Applied to the Evidences of Religion and Thomson's Law of Thought which were typical of the standard reading in most courses he took? Plato's Dialogues was a constant companion. He also studied Fichte's Contribution to Mental Philosophy, contemplated Butler's Ancient Philosophy and Cousin's Modern Philosophy, and returned again and again to Vaughan's Hours with the Mystics. The ongoing struggle to fashion his own peculiar intellectual outlook, and the drift of that outlook away from traditional, orthodox moorings was evident in his reading of Lowes's volumes Comte's Philosophy of the Sciences and Biographical History of Philosophy. These latter books no doubt helped to polarize Holmes's thinking on the methods of truth-seeking and the possibilities of truth-finding without, in the end, convincing him of the logical positivist's confident dismissal of all that can not be seen and measured as irrelevant.

Holmes became one of those thinkers who quite frankly and firmly insisted on reading philosophy from the point where he stood in historical time backward to the ancient Greeks. " . . . I regard pretty much everything, and especially the greatest things, in the way of books, as dead in fifty, nowadays in twenty years," he told one friend in 1909. "The seeds of thought germinate and produce later seeds. The old structures are remodeled and have electric lights put in." He then went on to describe himself as one who "thinks that Philosophy and the philosophy of history really have advanced within recent times. . . . "28 In light of these assertations, the formative potentiality of his Harvard years is registered unmistakably in an essay, "Plato," which he published in the October 1860 issue of (he University Quarterly, an intercollegiate journal of undergraduate opinion. Following the advice of Emerson not to accept Plato's philosophy unless, in fact, Plato pleased him, Holmes undertook to apply his growing skepticism to some of Plato's favorite generalizations. "Man is man, again Plato also says, just as far as he partakes of humanity. . . . But here, as it seems to me, there is a serious confusion introduced . . . owing to the admitting equally, without distinction, the simple ideas like those in which mathematical truth is dependent . . . and those like humanity, which is a purely general statement. In other words, as long as we have faith in reason we must believe in the truths of mathematics . . . while we see at least no such necessary existence for the ideas of humanity, etc." Holmes discovers an "unhappy fallacy" in Plato in that he confounded conclusions present in logic with conclusions drawn from new data. Admitting that Plato's philosophy is a "vast step" in introducing more accurate and well defined thought than had previously existed, "it still needed a complete remodeling before it would suffice as a consistent cosmology." "Our chemists do know more really than the best of the alchymists . . . and so with ancient metephysics." For Holmes "we start far beyond the place where Plato rested." Nevertheless, there is in this essay a lingering regard for the "intuitive faculty" in man which makes the position of its author a trifle ambiguous. His quarrel is not so much with Plato as a thinker but with those who continued to quote Plato, oblivious to the rise of science which rendered Plato, not useless, but anachronistic. Plato's value to the philosopher is still real; seeing "a really great and humane spirit fighting the same fight as we ourselves" was inspiring.29 Yet Plato's answers were, in the main, out of date. No less a philosopher than Emerson had read this essay on Plato in draft form. "I have read your piece," he told the young Holmes. "When you strike at a king, you must kill him."30 Yet for Holmes and his intellectual world the time was not yet ripe for dismissing Plato and his answers altogether. He could still talk sincerely of coming to know the "necessary ideas" which are part of the "mind of the Creator," while trusting more in science than in intuition.31

"Notes on Albert Dürer," which Holmes wrote over the summer months of 1860, showed a similar propensity.32Dürer's treatment of religious subjects attracted him because his drawing technique appealed to the draughtsman in him and because contemplation of the artist's work yielded meaning for him. It was the mood which Dürer was able to evoke—the ultimately tragic fate of mankind—and not so much the religious message of the pictures which fascinated him. Indeed, in this essay, Holmes is prepared to say that Dürer, like Plato, had become outdated if one sees only and even primarily the message of salvation. "The growth of civilization increases our faith in the natural man and must accordingly detract from the intense and paramount importance attached in darker times to the form of the story embodying the popular religion." Yet Holmes's attraction to Dürer's drawings, with their unavoidable overtones of religious spirituality, remains unexplained, save by his temperamental need to fathom the fullest meaning of man which itself tends to suggest a residual belief, or faith in God. Unable to accept the faith of an age that was passed, he was not ready to take "the leap into the dark" on the reassurances of science. And so he focused in his "Notes on Albert Dürer" on man himself. His description of Dürer's Meloncolia spoke something of his youthful anguish. "That solitary picture is the true picture of his [man's] soul, in its strength and its weakness; powerful, but half overcome by the many objects of its universal study; crowned with the wreath of the elect and beautiful with an ideal genius, but grave with thought and marked with the care of the world; winged, yet resting sadly on earth."33 That the art and thought of Dürer appealed to Holmes for more than half a century is clear from a 1923 letter in which he wrote of his collection of Dürer engravings and woodcuts, many of them having been in his possession since the Civil War. The consistent tension which is discoverable in the whole range of Holmes's life of the mind is traceable in some part to the impressions made by Dürer's work, which itself seemed to want to suspend judgment between God and man, Heaven and hell.

V CALL TO ARMS

Wendell Holmes's final term at Harvard was an unsettled one. The imposition by orthodox professors of principles of metaphysics and laissez-faire economics was but part of the discontent. The Civil War was bearing down on Harvard men no less than on other Americans, and Holmes was caught up in these great events which led on to strife. Wendell Phillips had once again stirred Boston in favor of the cause of abolition. Lincoln's call for volunteers to put down the Southern rebellion broke the spell of uncertainty and indecision which hung across the land. Holmes was, for the moment at least, an abolitionist. Within two weeks of the presidential proclamation of April 15, 1861, he had enlisted as a private soldier in the Fourth Battalion of the state militia and had commenced training at Fort Independence in Boston Harbor. Harvard College was suddenly remote. Once it was clear that the Fourth Battalion was not slated for immediate action, both Holmes and his father had some sober second thoughts about the college career which was so near successful completion. It was possible for him to remain in military service and yet take the examinations for his degree. The willingness of the faculty to accept him back on these terms, the fact that he had already been elected Class Poet, and the time required for his application for a commission to be processed all conspired to enable Holmes to graduate Harvard with the Class of 1861. Then, on July 23, 1861, within a week of commencement exercises, Oliver Wendell Holmes, Jr., aged twenty, was commissioned a lieutenant and joined A Company, Twentieth Massachusetts Volunteer Infantry. The Civil War awaited him.

VI LESSONS OF WAR

The transition from peace to war was a swift and painful one for Wendell Holmes. Commissioned in July 1861 and ordered South with his regiment in September, he was wounded the next month in the battle of Ball's Bluff. "Hit in the beginning of the fight," he wrote his mother from a military hospital two days later, to which he added hopefully, "we'll lick 'em yet though."34 Such were the ways during the first months of the Civil War: raw recruits led by unseasoned officers with heavy casualties the usual result—as Holmes's own experience testifies. Commission in hand and with little enough training, he was expected to lead troops, green and feckless youth for the most part drawn from New England farms and villages, into battle. As dangerous as such a situation was to the soldiers in the ranks, it was both hazardous and harrowing for the junior officers who had to assume responsibility for leadership while facing the same risk of death as the men under their command. Nothing that Wendell Holmes had known in life had prepared him for this ordeal. But perhaps Harvard had helped to ready his response. At college he had worked hard to refine a "noble philosophy" in which he could truly believe and by which, in consequence, he could guide his behavior. Battle would be the first, and possibly the supreme, test of that philosophy.

Like all citizen-soldiers Holmes was to learn by doing and, perchance, by dying—the lot of "the infantry of the line [which] stood the great slaughter."35 The three separate wounds he received, at Antietam, September 1862, and at Fredericksburg, May 1863, in addition to Ball's Bluff, October 1861, are reminders of how constant was the danger to life itself, how often luck or fate played a part in survival. Nor was Holmes indifferent to such considerations. "My Dear Parents," he wrote just after being hit at Antietam, "Once more I back it as per hint of yesterday's letter—Usual luck—ball entered at the rear passing through the central seam of coat & waistcoat collar coming out to the front of the left side. . . ." Luck today; fate tomorrow: "now as ever I believe that whatever shall happen is best."36 And so the war came to Wendell Holmes.

For every soldier who survives the ravages of battle there must always remain two wars: the war in fact and the war in memory. But more rare is the veteran who displays a peculiar need to recall battles, toast old wounds years afterwards, relive personal tragedies, and commemorate great events and great friends as did Holmes. In consequence he tended to impart a patina of unreality to the horrors he spoke and wrote of, once he was hors de combat. Perhaps it was only an effort to cast out the devils which are war's daily companions and which continue to haunt old soldiers despite the years. The evidence that he reflected on the war and its lessons is overwhelming. In writing to Frederick E. Pollock he noted: "I always think that when a man has once had his chance—has reached the table land over his difficulties—it does not matter much whether he has more or less time allowed him in that stage. The real anguish is never to have your opportunity. I used to think that a good deal during the war."37And he told Harold Laski, one of his confidants, more than half a century after Appomattox, "The army taught me some great lessons—to be prepared for catastrophe—to endure being bored—and to know that however fine a fellow I thought myself in my usual routine, there were other situations alongside and many more in which I was inferior to men that I might have looked down upon had not experience taught me to look up."38

Other equally serious and far-reaching lessons he learned as well. The three distinctive elements which stand out in Holmes's reaction to the Civil War are strikingly alike components discernible in his later intellectual growth. Soldiering did not thwart so much as it nurtured that development in altogether novel ways. Holmes came to treat the duties and the dangers of war pragmatically. He learned by doing and readily saw, at peril to his life, that old habits might have to be discarded and new skills acquired if military success was to be achieved. His ability to adapt was proven regularly in battle. Success was tantamount to survival. What contributed to survival in one situation might have to be avoided in another, as the demands of the engagements shifted. Beyond these everyday considerations, men like Holmes viewed the war as a matter of efficiency versus inefficiency. They thought of winning the war in practical, pragmatic terms, rather than according to the enthusiasms of the home front. Duty for them could depend "less in relation to great causes and more as a matter of doing the necessary tasks in an efficient way."39 Individual survival and military success were linked to the least wasteful and quickest methods of victory.

Whatever the ingredient of luck, soldiers in action feel, as Holmes felt, that survival is bound up with the will to struggle, the will to survive, perhaps bound up even with the momentary illusion of immortality in this life. To the soldier who continues to function as a human being, and Holmes for all his exposure to brutality remained intensely human, war does not appear as it might seem to the generals—that is, an awesome use of lives to gain an objective. It is more intimately involved with an individual's desire to stay alive, however reckless or selfless his behavior under fire. Viewed from without war is an inexorable mechanism for destruction; but from within it is each individual's determination not to be destroyed. There is discoverable in any battle condition, and in the larger context of war, a curious blending of pragmatic and social Darwinist elements which for Holmes worked themselves out under circumstances certain to leave a lasting impression.

The cause which made Holmes's struggle against extinction and his pragmatic response to survival appeal to him as worthwhile comes through as a reminder that, at this stage in his growth, tradition and traditional values could have an almost decisive place. There was no pressing need on his part to enlist in the Union Army; no special social stigma attached to those young men of his generation who did not enlist. While a great many Harvard graduates did join the fight, not a few of his social class—and the young Henry Adams and William Everett come to mind—did not. Those who shunned military duty were not stirred by the same noble impulse which stirred Wendell Holmes. If his service was an expression of a youthful rebellion against parental and institutional authority, his avowed purpose, to help in the destruction of slavery, placed his decision in a context of values. Beyond that we may be sure that Holmes's response to the presidential call for volunteers was patriotic in a direct and ennobling way. Lacking the social compulsion to enter the army, there was a compelling Puritan sense of duty to be performed. The call to arms came not alone from Lincoln but from across the years, across the generations of Puritan forebears. Giving an account of his conduct at Ball's Bluff, Holmes saw himself as acting "very cool and did my duty I am sure."40 On another occasion he described himself as 'heartily tired and half worn out body and mind by this life, but I believe I am as ready as ever to do my duty."41 Evidence from Holmes's record of service bears out the primacy of duty in his set of working values.

The concept of duty figured throughout Holmes's war-time letters and diary and was registered in his postwar reflections. In his Memorial Day Address at Keene, New Hampshire, May 30, 1884, he praised the duty he judged his own to be in celebrating the sacrifice of his intimate friend Henry L. Abbott, killed at Cedar Montain, August 1862. Of Abbott Holmes said, "He was indeed a Puritan in all his virtues without a Puritan austerity; for when duty was at an end he who would have been master and leader became the chosen companion in every pleasure a man might honestly enjoy. In action he was sublime."42Even as Holmes was nearing the end of his enlistment and found himself thoroughly whipped by the war, duty remained paramount. "I honestly think that the duty of fighting has ceased for me," he wrote his mother in June of 1864, "ceased because I have laboriously and with much suffering of mind and body earned the right. . . to decide for myself how I can best do my duty to myself, to the country, and, if you choose, to God."43 In like vein he told Charles Eliot Norton about the same time: "If one did not believe this war was a crusade in the cause of the whole Christian world it would be hard to keep the hand to the sword."44 Such thoughts as these coming at the end of Holmes's long trial as a soldier expose the deep roots of conviction regarding the war. Furthermore, the acknowledgment of absolute values in his scheme of living helps to delineate his traditionalism. Later intellectual adventuring would supply rationales for pragmatic adaptation and struggle for survival which battlefield experience had woven into his subconscious. No such philosophical justification for the absolute demands of duty and loyalty would be forthcoming, however, so that Holmes's reasons for making the sacrifices attendant to the war would remain the same reason which enabled him, some thirty years afterward, to praise as "true and adorable that which leads a soldier to throw away his life in obedience to a blindly accepted duty. . . ."45 Uncertain of the meaning of the universe, the demands of duty remained absolute. If remembrance of battles past was the only consideration causing the mature Holmes to proclaim a belief in absolutes, that in itself is some measure of the impact of the Civil War on the young Boston aristocrat who was so eager to join the fight in 1861.

VII WAR'S LASTING EFFECTS

Years after the event, Holmes advised one friend that since "the Civil War the world never seemed quite right again."46 His insistence upon such a judgment demands a careful assessment of the particular ways in which he had been changed by his wartime experiences, or at least what evolving characteristics of mind and faith found nourishment or possibly confirmation in the agonies of battle. Traits of the mature Holmes are easily related to the war, traits ambivalent in a revealing fashion. Aristocratic, yet democratic; detached, but involved; stoic while passionate; callous, though tender; convinced of life as a quaint adventure of the protoplasm without losing sight of man's innate dignity—these were the contradictions which distinguished the impact of the Civil War on Wendell Holmes.

Holmes had volunteered in 1861 out of an aristocratic sense of responsibility which was part of his New England birthright. Duty to him was inbred rather than deliberated. Yet the Civil War stripped away the artificialities of social rank by throwing individuals back on their own resources, as Holmes came quickly to appreciate. His first sergeant, when he commanded G Company, was Gustave Magnitzky, an immigrant newly arrived from Polish Prussia. Holmes's estimate of Magnitzky was the description of a natural aristocrat: "quiet and steady under fire, quiet and effective in camp, modest, distinguished in bearing and soul. . . ."47 He was prepared to give him rank equal to that of an Abbott or a Hallowell in the company of soldiers and gentlemen. Wendell's democracy was the equal of his aristocratic sense.

It has been argued to good effect that the war promoted in Holmes his Olympian detachment in the face of a war, or a world, calling for answers to unanswerable questions.48 Furthermore, he himself once conceded that "in the Civil War I formulated to myself the value of prejudice and being cocksure for achievement."49 Some of the very passages from his wartime letters which underscore his sangfroid are interlaced, however, with Holmes's frustration at not being able to stop the loss of life which he was witness to. "It is odd how indifferent one gets to the sight of death—perhaps, because one gets aristocratic and don't [sic] value much a common life—Then they are apt to be so dirty it seems natural—'Dust to Dust'—I would do anything that lay in my power but it doesn't much offset my feelings."50 Similar evidence shows how the stoic remained the passionate young man. Having announced his decision to leave the army: "so I mean to leave at the end of the campaign as I said, if I am not killed before," in the same letter he described "the intense yearning" for "home and parents" which he said immediately precedes a campaign.51

The toughness of the mature Holmes is axiomatic. "I believe that force is the ultimate ratio" and "three generations of imbeciles are enough" are vintage Holmes. Such views no doubt found a source in the horrors of the war so often recalled. He could speak with callous measure of heavy battle losses as "the butcher's bill" at a point when the war was "kill-kill all the time." Yet he did not descend to the brutish level. "A thousand loving thoughts this Sunday Morng [sic]." "Day beautiful and quiet," "Love to all" are phrases common in his letters and diary during those days when he was his most disdainful of life. His soul-searching over the decision to be mustered out of the army arose from the inner thoughts of a person who continued to weigh his behavior in a human scale of values.

Holmes's doubts about his meaning in the cosmos subsequent to his first wound—"Would the complex forces which made a still more complex unit in ME resolve themselves back into simpler forms or would my angel be still winging his way onward when eternities had passed?"52—soon gave way to his own peculiar agnosticism. This is not the same as saying that life was futile. The Civil War taught Holmes that life had a worth in itself, that there was an ineffable value to battles fought, and better still, to battles won, a quality which lent dignity and carried within it its own purpose. It will not do to draw from Holmes's oft-quoted remarks in speeches long after the events, including the famous "Soldiers' Faith." Better to listen to the man at arms who took sure if quiet pride in soldiering and especially in his regiment. "I really very much doubt whether there is any Regt, wh. can compare with ours in the Army of the Potomac. Everyone says this who belongs to a good Regt. but still I fancy I am right from the evidence of many things."53 In his regiment Holmes had a mirror for his own sense of devotion to duty and accomplishment. The regiment became his "beloved 20th." It identified him positively with something outside himself, something he believed in and was intensely loyal to. By giving loyalty to an absolute, namely, the unyielding principle of duty, Holmes verified the truth of that principle. In his own later phrase, truth is what I "can't help" believe. Coming at a time when such lessons were indelibly written, Wendell Holmes left the war touched not alone by fire but by the spirit of man's strange and perplexing purpose.

NOTES

1 Learned Hand, "Mr. Justice Holmes," Mr. Justice Holmes, Felix Frankfurter, ed. (New York, 1931), p. 131.

2 Oliver Wendell Holmes, "The Puritans," Speeches (Boston, 1913), p. 21.

3 The phrase of Samuel Eliot Morison in The Maritime History of Massachusetts (Boston and New York, 1921), p. 188.

4 Holmes to Patrick Augustine Sheehan, Oct. 27, 1912, Holmes-Sheehan Correspondence, David H. Burton, ed. (Port Washington, N.Y., 1976), p. 51.

5 Holmes to Sir Frederick E. Pollock, June 20, 1928, Holmes-Pollock Letters, Mark deW. Howe, ed., 2 vols. (Cambridge, Mass., 1941), II, 223.

6 Van Wyck Brooks, New England: Indian Summer 1865-1915 (New York, 1940), looks back from 1865 to "Dr. Holmes's Boston." See pp. 1-22.

7 The phrase is that of Charles S. Peirce as applied to absolutes in philosophy. Collected Papers of Charles S. Peirce, Charles Hartshorne and Paul Weiss, eds., 6 vols. (Cambridge, Mass., 1933-1935), I, 357. Peirce was a close friend of Holmes during the days of the Metaphysical Club, 1868ff.

8 Quoted in Frederick C. Fiechter, Jr., "The Preparation of an American Aristocrat," The New England Quarterly VI: 1 (March, 1933): 3-28.

9 Ibid., p. 4.

10 There are useful genealogical tables dealing with Holmes's descent and his mother's family in Catherine Drinker Bowen, Yankee From Olympus (Boston, 1944), pp. 6, 80. See also Silas Bent, Justice Oliver Wendell Holmes (New York, 1932), p. 26, and Mark deW. Howe, Justice Oliver Wendell Holmes, Jr., The Shaping Years, 1841-1870 (Cambridge, Mass., 1957), pp. 31-32.

11 Bowen, p. 100.

12 Arnold L. Goldsmith, "Oliver Wendell Holmes Father and Son," Journal of Criminal Law, Criminology and Political Science 48:4 (Nov.-Dec. 1957): 394-98 passim.

13 Bowen, p. 81.

14 Quoted in Howe, p. 5.

15 Fiechter, pp. 7-8.

16 Holmes to Sheehan, Aug. 14, 1911, Holmes-Sheehan Correspondence, p. 44.

17 Bent, p. 45.

18 Holmes, "The Class of '61," Speeches, p. 96.

19 Holmes to Pollock, Dec. 7, 1927, Holmes-Pollock Letters, II, 207.

20 Bent, pp. 42-43.

21 Ibid., p. 69.

22 Holmes, "Harvard College at War," Speeches, p. 14.

23 Howe's chapter, "Harvard College," is best relied on for an awareness of this aspect of Holmes's background; see Howe, The Shaping Years, pp. 35-79.

24 Holmes, Touched with Fire, Mark deW. Howe, ed. (Cambridge, Mass., 1947), p. 32.

25 Howe, The Shaping Years, p. 62.

26 Ibid., p. 44.

27 Ibid., p. 45.

28 Holmes to Sheehan, July 17, 1909, Holmes-Sheehan Correspondence, pp. 27-28.

29 Holmes, "Plato," University Quarterly II: 1 (Oct. 1860): 205-17 passim.

30 Quoted in Howe, The Shaping Years, p. 54.

31 Holmes, "Plato," p. 210.

32 Holmes, "Notes on Albert Dürer," reprinted in Wolfgang Stechow, "Justice Holmes' Notes on Albert Dürer," Journal of Aesthetics and Art Criticism VII: 2 (Dec. 1949): 119-24.

33 Ibid., p. 119.

34 Holmes to Amelia Jackson Holmes, Oct. 23, 1861, Touched with Fire, p. 13. This volume includes the war-time letters of Holmes as well as portions of his diary for 1861-1864, and as such is the major source for understanding the effects of the Civil War on Holmes.

35 Holmes to Harold J. Laski, May 4, 1924, Holmes-Laski Letters, Mark deW. Howe, ed. 2 vols. (Cambridge, Mass., 1953), I, 615.

36 Holmes to parents, Sept. 18, 1862, Touched with Fire, p. 64.

37 Holmes to Pollock, Dec. 21, 1886, Holmes-Pollock Letters, I, 29.

38 Holmes to Laski, Dec. 16, 1926, Holmes-Laski Letters, II, 905.

39 George M. Frederickson, The Inner Civil War (New York, 1968), p. 172.

40 Holmes to his mother, Oct. 23, 1861, Touched with Fire, p. 13.

41 Holmes to his father, Dec. 20, 1862, Touched with Fire, p. 80.

42 Holmes, "Memorial Day," Speeches, p. 8.

43 Holmes to his mother, June 7, 1864, Touched with Fire, p. 143 (italics in original).

44 Holmes to Charles Eliot Norton, April 17, 1864, quoted in Touched with Fire, p. 122, n. 1.

45 Holmes, "The Soldiers' Faith," Speeches, p. 58.

46 Holmes to Lewis Einstein, The Holmes-Einstein Letters, James B. Peabody, ed. (New York, 1964), p. xvi.

47 Howe, The Shaping Years, p. 86.

48 See especially Touster, In Search of Holmes from Within, Wand. Law Rev., 438 (1964-1965).

49 Holmes to Lewis Einstein, April 12, 1925, The Holmes-Einstein Letters, p. 235.

50 Holmes to his mother, Dec. 15, 1862, Touched with Fire, p. 78.

51 Holmes to his parents, May 16, 1864, Touched with Fire, pp. 122-23.

52 Holmes Diary, Touched with Fire, pp. 27-28.

53 Holmes to his father, March 29, 1863, Touched with Fire, pp. 90-91.

G. Edward White (essay date 1994)

Download PDF Print Page Citation Share Link

Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 15918

SOURCE: "The Integrity of Holmes' Jurisprudence," in Intervention and Detachment: Essays in Legal History and Jurisprudence, Oxford University Press, 1994, pp. 75-99.

[In the following essay, White addresses apparent contradictions in Holmes's judicial actions and writings.]

Writing about Oliver Wendell Holmes can be likened to playing Hamlet in the theatre: it is a kind of apprenticeship that legal scholars undertake as a way of measuring their fitness to endure the academic travails ahead. Holmes himself engaged in a similar rite of passage when he wrote an essay on Plato as a Harvard undergraduate. Plato's thought, Holmes claimed, "needed a complete remodeling"; Holmes' generation "start[ed] far beyond the place where Plato rested."1 Ralph Waldo Emerson, to whom Holmes showed a draft of his essay, suggested that "[w]hen you strike at a king, you must kill him."2 The urge to strike at Holmes has been recurrent, and the man, as a jurist, is far from dead.

Ten years ago I suggested that Holmes' reputation was on the decline, and complained about his "articulated refusal to take pride in being human."3 In an intellectual culture dominated by liberal humanism, I surmised, Holmes would not be likely to fare well: he was not much of a liberal and certainly not a humanist. Once again Holmes seems to have triumphed over his critics. His thought has had a capacity to contain insights sufficiently diverse and contradictory to appeal to someone regardless of prevailing intellectual fashions. And the gap between Holmes and prevailing opinion has narrowed rather than widened in the 1970s. The "disturbing dissonance" I found between Holmes' "very conspicuous social and professional success" and his "gloomy musings that . . . man has no more cosmic significance than a baboon or a grain of sand"4 presupposed an obligation in those whom life has favored to believe in the optimistic possibilities of living. Optimism is harder to come by these days; what I called a "cranky negativism"5 in Holmes now seems more like sensible resignation. At any rate, interest in Holmes has dramatically revived,6 and I should not like to be thought of as having given up on him too soon.

My concern in this essay is with a feature of Holmes that, for all that has been written on him, scholars are just beginning to address. The feature involves an apparent discontinuity between Holmes' theory of judging in the private law and public law spheres. Holmes' famous book The Common Law7 reads like a credo for activist judging in pursuit of broad general principles of law; judges are to help arrange legal subjects in what Holmes called a philosophically continuous series.8 His constitutional opinions on the Supreme Court, by contrast, extol the virtues of judicial deference. How is Holmes simultaneously the reformer of private law and the passive public law judge? How could the same judge who wanted to take all grade crossing cases away from juries9 feel comfortable allowing legislatures to make all sorts of discriminatory classifications, so long as they were arguably rational?10 Are these tendencies another example of the internal contradictions in Holmes' thought, which have been so regularly pointed out? Or is there a basic, if latent, integrity to Holmes' jurisprudence?

The reason this inquiry may be put as a fresh proposition so late in the history of scholarship on Holmes is that scholars have thus far given only limited attention to his experience as a judge on the Supreme Judicial Court of Massachusetts. Although Holmes was sixty-one when appointed to the Supreme Court of the United States, he remained a Justice for over twenty-nine years and made his public reputation as a Justice. Early scholarship on Holmes paid almost no attention to his years as a Massachusetts judge, and although a major biography, that of Mark De Wolfe Howe,11 was begun in the 1950s, Howe died before he addressed the Massachusetts cases. Howe's last volume on Holmes appeared in 1963;12 there was a gap of nearly fifteen years before any detailed treatment of Holmes' Massachusetts years appeared.13

The explanation for this neglect of Holmes' state court opinions is obvious. Scholarship in American legal history that emphasized private law subjects languished in the 1950s and 1960s; there was little interest in the opinions of any state court judges. Further, there was so much else in Holmes' career of interest—his early scholarship, his Supreme Court opinions, his engaging correspondence—that scholars could justify neglecting what seemed to be a collection of boring, insignificant Massachusetts cases.

Holmes himself, as we will see, found his state cases relatively trivial and dull exercises. His opinions are not particularly path-breaking, rarely detailed, and not even the rich source of aphorisms and epigrams that his Supreme Court opinions are.14 But the experience of being a state court judge, when taken in connection with the other two major roles of Holmes' career—scholar and Supreme Court Justice—was a vital link in the forging of Holmes' jurisprudence. The experience of a Massachusetts judgeship transformed Holmes' thought from its expansive, conceptualistic, reformist early form to its cryptic, skeptical later variety. It was on the Massachusetts bench that Holmes came to adopt his familiar posture of resignation, a posture he had never expected to adopt as a judge.

This essay traces the evolution of Holmes' jurisprudence in the three major phases of his career. The first section discusses Holmes' early scholarship, which culminated in The Common Law in 1881, and the theory of judging that Holmes held at the time of The Common Law's publication. Section II examines the process by which Holmes' ideas about judging private law cases became modified with his experiences as a Massachusetts judge, and contrasts the scholarship he produced between 1882 and 1902 with his earlier efforts. Section III discusses the relationship of Holmes' revised theory of judging, which had been developed in a private law setting, to his approach to public law cases as a Supreme Court justice. The fourth section assesses some of the implications of Holmes' jurisprudence for contemporary judging.

I THE EARLY SCHOLARSHIP: ORDER AND ACTIVISM

Holmes' early life, as a practitioner in a Boston firm, a lecturer and professor at Harvard, and an author and editor for the American Law Review, has been one of the most fully examined phases of his career." We know that by the 1870s Holmes had become attracted to the idea of "analys[ing] what seem to me the fundamental notions and principles of our substantive law [and] putting them in an order."16 Beginning in 1870 he published a series of unsigned articles and book reviews, primarily in the American Law Review, in which he argued that the purpose of legal scholarship should be "classification," by which he meant the organization of a subject "from the most general conception to the most specific proposition or exception in the order of logical subordination."17

We know, as well, that Holmes found the subject of Torts a particularly fruitful one to examine in this fashion. After an original judgment that Torts was "not a proper subject for a law book,"18 Holmes, by 1873, had concluded that "there is no fault to be found with the contents of [Torts] text-books."19 Torts appealed to Holmes because it seemed to be a subject ripe for classification. While earlier Torts treatises had attempted to associate concepts, like trespass, evidence, and defamation, that bore no "cohesion or legal relationship" to one another, Holmes became convinced that some fundamental notions and principles could be derived.20 He claimed that "an enumeration of the [tort] actions which have been successful, and of those which have failed, define[d] the extent of the primary duties imposed by the law."21 This was in keeping with his belief that "form[s] of action" could be made "to correspond to every substantial duty," and thereby "embod[y] in a practical shape a classification of the law."22 Holmes discovered that the tort writs could be divided into three groups, one requiring culpability as a prerequisite for liability, another indifferent to culpability, and a third determining culpability from "motives of policy . . . kept purposely indefinite."23

The last category of wrongs introduced for Holmes the standard of modern negligence, which he seized upon as a clarifying principle for tort law. Eight years after his preliminary survey of tort writs he was prepared to argue, in The Common Law, that the negligence principle had increasingly dominated tort law.24 That shift from analytic classification. to philosophical synthesis was characteristic of his scholarship in the late 1870s. In five articles in the American Law Review25 between 1876 and 1880 Holmes revealed a new style of scholarship. His subjects and his explorations were primarily historical; his purpose, however, was not merely to clarify the historical origins of doctrine, but to claim that doctrine could not be understood apart from its historical origins. A historical exploration of a legal subject, for Holmes, revealed its essentials: its standards of liability, its core elements, its character. History, he later said, was "the first step . . . towards a deliberate reconsideration of the worth of those rules."26 "History sets us free and enables us to make up our minds dispassionately whether the survival which we are enforcing answers any new purpose when it has ceased to answer the old."27

The pattern of scholarship first introduced in Holmes' articles on tort law thus continued through other subjects to culminate in The Common Law. As Mark Howe has shown,28The Common Law was a reformist work in two senses of the word. In his efforts to show that all the common law fields—criminal law, property, torts, and contracts—had arguably been governed by shifting external standards of liability throughout their history, Holmes was attempting to reform jurisprudence by emphasizing the derivation of general principles rather than the pleading of specific writs. Uncertainty would be reduced in the law if common law subjects were arranged according to general principles and lawyers recognized that those principles were simply manifestations of current community preferences. The study of law was thus to proceed from the individual case through history to the derivation of general principles. This would require, among other things, a basic change in the way law was taught and practiced.

Holmes was also advocating another kind of reform in the The Common Law. Since certainty and predictability were desirable goals for the legal profession, those institutions in the legal system that fostered certainty should be rewarded at the expense of those that appeared to hinder its pursuit. In his 1873 essay on torts Holmes expressed what he took to be the view of "many whose opinion is entitled to respect" that "negligence [was] always and in the nature of things a question for the jury."29This echoed a position he had taken two years earlier, when he said that "we suppose it is wholly for the jury to say whether the party has used such care as a reasonable and prudent man would have used under the circumstances of that particular case."30 But by 1880 Holmes had changed his mind about the efficacy of allowing legal standards to be formulated by juries. In The Common Law he complained about "leav[ing] all our rights and duties throughout a great part of the law to the necessarily more or less accidental feelings of a jury," arguing that "the sphere in which [a judge] is able to rule without taking [jury] opinion at all should be continually growing."31 This was in keeping with his belief that "the tendency of the law must always be to narrow the field of uncertainty."32

Holmes' early scholarship, in its final phases, thus envisaged a "creative epoch"33 in late nineteenth-century American private law in which a philosophically oriented class of scholars would join with a class of judges who had acquired "a fund of experience"34 to develop broad, predictable rules. The pursuit of order in American jurisprudence would be fostered by judicial activism. Given Holmes' confidence in the techniques of analysis he had used in The Common Law and in the principles he had derived as a result of their use, it was hard for him to imagine that others could not do likewise. But those others would have to be persons capable of understanding the law and its history, and dedicated to the goals of certainty, predictability, and coherence. Judges were such persons.

One of the curiosities of Holmes' early life is why, after finding his scholarly labors finally coming to fruition as he approached forty, he did not regard a life of future scholarship with more enthusiasm. After severely pressing himself to secure some scholarly achievement by his fortieth birthday—the result of which was some petty competitiveness with other scholars, a neglect of his home life, and a "fearful grip upon his work" that made him "a melancholy sight" to one observer35—Holmes, who had written The Common Law while in active law practice, was then given an opportunity to continue a life of scholarship. By November 1881, he had been offered a position on the Harvard Law School faculty, subject to the contingency of funds being raised to endow a new professorship, and had indicated his readiness to accept. In his letter of acceptance, however, Holmes reserved the right "not . . . to feel bound in honor not to consider" a judgeship should one subsequently be offered him.36

Less than a year later, after finally accepting Harvard's offer of a professorship in jurisprudence, Holmes resigned to go on the Supreme Judicial Court of Massachusetts. The circumstances of his resignation—he consulted no one on the Harvard faculty and accepted the judgeship three hours after it was offered—produced a good deal of bitterness at Harvard. James Bradley Thayer, who had helped raise funds for the professorship that brought Holmes to Harvard, poured out his resentment in a diary. "[W]ith all his attractive qualities and his solid merits," Thayer concluded, Holmes was "wanting sadly in the noblest region of human character,—selfish, vain, thoughtless of others."37 Much later, when Felix Frankfurter was considering joining the Harvard faculty, Holmes wrote him that "academic life is but half life—it is withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister." He also said, in the same letter, "My wife thinks I unconsciously began to grow sober with an inarticulate sense of limitation in the few months of my stay in Cambridge."38

Apparently Holmes was unsure where a scholarly life would take him. He wrote James Bryce shortly after his decision to take the judgeship that he "had already realized at Cambridge that the field for generalization inside the body of the law was small and that the day would soon come when one felt that the only remaining problems were of detail"39 The choice, he later wrote to Harold Laski, seemed to be "between applying one's theories to practice and details or going into another field."40 Judging appeared to provide "an all round experience," and a "share in the practical struggle of life."41 It "hardens the fibre," Holmes later said, and "is more likely to make more of a man of one who turns it to success."42 Had he stayed at Harvard he would have felt that he "had chosen the less manly course."43

The striking feature of Holmes' conception of the academic and judicial worlds at this point in his career is not his sense that academic life was more cloistered or less "manly" than a judgeship. It is rather his feeling that "the field for generalization inside the body of the law was small" and that "as a philosopher" Holmes needed to "extend his range."44 Holmes apparently believed that his labors on The Common Law had resulted in a comprehensive theory of jurisprudence, that he was not likely to modify that theory, and that the remainder of academic life, if he stayed in the law, would be filling in the details.45 This was not as limited a conception of scholarship as it might first appear. Holmes was reluctant to abandon an insight once he had formulated it; nearly forty years after publishing The Common Law he defended its findings against critics.46 Moreover, the seminal work of many scholars is done early in their careers, and there are temptations to rest on one's reputation and "fill in the details." Holmes may have understood that there was not much more he could do, at least in the private law subjects that held his greatest interest, after he had plumbed their depths in The Common Law.

But if Holmes was interested in "generalization" and the pursuit of "tempting [philosophical] themes,"47 why did he choose to become a judge? He never made the reasons for his choice explicit, but he appears to have thought that if he were going to "apply one's theories to practice and details," performing that function in "the practical struggle for life," rather than in a "cloister," would be more satisfying. Academic detail was just nit-picking; judicial detail was "the gradual weaving of one's contribution into the practical system of the law."48 Judging was to provide a means by which the theories of The Common Law were to have an impact on "business in the world."49

One cannot review Holmes' choice to forego academic life for a judgeship without sensing that he was proceeding under the assumption that judging would give him an opportunity to put his theories into practice. He had spent too much time deriving his views on contracts, the criminal law, property, and torts to regard them merely as "smart things"; his jurisprudence was the jurisprudence of reform. Here was an opportunity to put his reforms into action, to rewrite the corpus of Massachusetts jurisprudence. Here was an opportunity to be an activist judge creating an orderly, predictable system of laws.

II THE SUPREME JUDICIAL COURT: DEFLATED EXPECTATIONS

In 1900, after nearly twenty years as a judge, Holmes asked himself "what is there to show for this half lifetime that has passed?"50 He had considered "[a] thousand cases, many of them upon trifling or transitory matters." He "would have liked to study to the bottom and to say his say on every question which the law has ever presented." He would have liked to "invent new problems which should be the test of doctrine, and then to generalize it all and write it in continuous, logical, philosophic exposition, setting forth the whole corpus with its roots in history and its justifications of expedience." Instead he had decided a great many dull cases. That was "life," he felt; "we cannot live our dreams."51

The experience of judging had not conformed to Holmes' expectations. He had contemplated being able to study cases "to the bottom," to "say his say" fully on matters of common law doctrine, to use existing cases as a means of anticipating "new problems," and perhaps even to "generalize it all." For the most part he had not been able to do these things. There was not enough time to study cases in depth. Saying one's say fully ran the risk of offending one's colleagues: opinions were joint projects. Lawyers, litigants, and even judges were not interested in a case as an index of future doctrinal development; practical issues were at stake, results had to be reached and decisions made. And the common law, as it evolved in the Massachusetts Supreme Judicial Court, was hardly a "continuous, logical, philosophic" system. It was better described as a series of largely desultory cases that were decided without much attention to the "whole corpus."52

Decisionmaking on the Massachusetts court was best captured by the old metaphor that Holmes had first written in his 1873 essay, "The Theory of Torts,"53 where he had speculated on the development of the law:

Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight predominance of feeling, rather than articulate reason; and at last a mathematical line is arrived by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other.54

Rather than studying cases to their bottom, appellate courts made determinations on a "predominance of feeling." The "mathematical lines" drawn by courts were "arbitrary." Clear distinctions evolved into intuitive preferences.

A random survey55 of Holmes' torts opinions on the Massachusetts court provides an entry to his work as a state judge. Torts had been the private law field in which Holmes had arguably made his greatest scholarly contributions. It is possible to claim that in essays such as "The Theory of Torts" and "Trespass and Negligence,"56 and in The Common Law, Holmes had supplied a principle for late nineteenth-century tort law—the modern negligence principle—that allowed torts to develop its identity as a discrete branch of law. Holmes' achievement had been to see that it was possible to speak of the myriad tort writs as manifestations of a general civil duty owed by everyone not to carelessly injure others. The concept of this duty of very great generality and the limitation of the duty through the fault principle—reasonable conduct under the circumstances—were major catalysts to the growth of modern tort law. Almost all the leading torts theorists of the late nineteenth century—Thomas Cooley,57 Melville Bigelow,58 John Wigmore,59Jeremiah Smith60—owed their conception of the subject as dealing with universally imposed civil duties to Holmes.61

What were the tort cases that Holmes, with this rich scholarly background, considered on the Massachusetts court? Holmes wrote over 400 torts opinions, the most he wrote on any legal subject and nearly one-third of his entire output. Of these only three were dissents.62 One would have thought with this amount of cases, the very high percentage of majority opinions, and Holmes' understanding of the intellectual foundations of tort law, he would have had ample opportunity to put his scholarly theories into practice. Instead his torts opinions were exceptionally routine. Two opinions in the 1883 term merely disposed of evidentiary exceptions taken by the defendant at trial.63 A third was a conventional assumption-of-risk case that was decided on its facts.64

Only in Cowley v. Pulsifer,65 a case testing the limits of the record libel privilege, did Holmes attempt an elaborate discussion. The case involved publication in a newspaper of the contents of a petition to remove an attorney from the bar. Before the petition had been presented to the court or entered on the docket, it appeared in the paper. Holmes stated that "no binding authority has been called to our attention which precisely determines this case, and we must be governed in our conclusion mainly by a consideration of the reasons upon which admitted principles have been established."66 He then grounded the decision on a distinction between proceedings in open court, which could be recorded without subjecting the recorder to a libel suit, and "preliminary written statement[s] of a claim or charge."67 The record libel privilege did not extend to the latter.

Trivial torts cases again outnumbered significant ones in the 1884 term. Of the seven cases in which Holmes wrote opinions, two simply disposed of exceptions,68 one held that the technical requirements for a libel had been made out,69 one allowed an action for diverting water to be maintained by a citizen of another state,70 one refused to find contributory negligence as a matter of law where an officer in an act of arresting a person stepped into a partly covered well in the darkness,71 and one labeled the actions of a deputy sheriff misrepresentations of facts.72 Only in Dietrich v. Northampton73 did Holmes find a case on which he could ruminate. There a pregnant woman slipped on a defective highway constructed by the town of Northampton and suffered a miscarriage. She recovered for her physical injuries, and the deceased child's administrator sought to recover for the child's death. The case raised a number of issues, including whether infants could maintain actions for injuries suffered before birth, whether an injured fetus was a "person" entitled to legal redress, and whether the common law of negligence had a different standard of liability from that imposed on towns for failure to maintain highways in proper repair. For Holmes the case turned on the proposition that "no case, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother's womb."74 That dictum was to survive in tort law for seventy-five years.75

The 1890 Term contained more cases that approximated the typical late nineteenth-century tort action: the industrial accident leading to a suit in negligence. None of the negligence cases, however, involved more than a simple application of reasonable conduct standards to their facts. An employee assumed the risk when he passed close to a band saw, slipped, and put his hand on it.76 A conductor of a streetcar was not contributorially negligent when knocked off the car by a protruding post from an excavation barrier.77 A husband and wife injured at a grade crossing where the gates were up and no whistle or bell was sounded by the approaching train were entitled to have the question of their contributory negligence decided by a jury.78 A commuter who, ignoring closed gates, walked behind one train and was hit by another on a neighboring track was grossly negligent as a matter of law.79 A town had a responsibility to repair a mudhole in a road that caused the driver of a wagon to injure himself when he drove off the road to avoid it.80 An unauthorized person using a water closet in a railroad station was owed no duty of care by the railroad, and no liability ensued when he was killed by a train that ran off its track.81 The maintenance of a heavy steam hammer by a car wheel company was not a nuisance.82

Only one case in the Term, Burt v. Advertiser Newspaper Co.,83 presented Holmes with an opportunity to clarify legal doctrine. Burt was a libel action against the Boston Daily Advertiser for a series of articles on fraud in the New York customs house. Two brothers, James and Silas Burt, were mentioned in the articles; James Burt, a broker, was accused of "outrageous sugar frauds"84 and Silas Burt, a naval officer, of having a "long-time connection with some of the most disreputable elements in the New York custom-house."85 In response to a letter of protest the Advertiser, while conceding that Silas Burt had not been accused of any wrongdoing, said that James Burt's practices "hold the New York custom-house up as a national disgrace."86 The question raised by the Burt case was the scope of the Advertiser's privilege of "fair criticism upon matters of public interest."87 That privilege, olmes held, did not extend to the publication of false facts. It was the criticism—the opinions of the critics—that was privileged. Holmes distinguished between "private inquiries . . . about a private person,"88 such as "answers to inquiries about the character of a servant"89 and comment on public matters. The Advertiser's reasonable belief that its allegations about James Burt were true did not constitute a defense, Holmes noted: "A person publishes libelous matter at his peril."90 The Burt case furnishes a good example of nineteenth-century common law attitudes toward freedom of the press in defamation cases. Not even a showing that a reasonable editor would have believed the false facts about James Burt to be true would have helped the Advertiser. Strict liability was the standard in defamation cases.

The 1891 Term produced no significant torts cases. The city of New Bedford was exonerated from liability for nuisance when a homeowner who connected his drain with a sewer, which concededly had a narrow outlet, had his basement filled during a heavy rainstorm with water and sewage.91 A person who fell down unlighted cellar stairs in the course of delivering wood was held to assume the risk of an open cellar being near the house.92 A case where a woman fell down a lighted flight of stairs was not sufficient for res ipsa loquitur, and could be taken from the jury since its elements were "permanent, few, and simple."93 A workman who set on fire a shafting box soaked with oil, thereby damaging the owner's premises, was negligent as a matter of law.94 And a traveler who picked up a loose telephone wire in a road, and was injured from electric current, was considered to be owed a duty by the city of Cambridge, which had negligently allowed the wire to fall into the road.95 In none of the above cases did Holmes' opinions extend beyond a few paragraphs.

By the 1901 Term Holmes had become Chief Justice, and his workload had increased. He wrote Sir Frederick Pollock in 1899 that he "had more to do than ever," and that he had been taking on himself "perhaps rather a lion's share."96 But the torts cases were no more significant than they had been in the 1880s or 1890s. Holmes found no contributory negligence in a parent whose child had been run over by a wagon in a quiet road,97 but did find it where another child was run over by an electric car in a "teeming" city street.98 He upheld a jury's verdict that a street railway car had negligently run into a baker's wagon that had been lawfully driving on the streetcar tracks,99 construed a dram shop act to impose liability on the owner of a bar who illegally sold liquor to a person who while intoxicated stumbled into the path of a train, 100 and refused to impute to a passenger the alleged contributory negligence of a driver of a coal wagon.101 He found a spout that spilled water on a sidewalk, causing ice to form, to be a nuisance, and its owner strictly liable for the injuries of a pedestrian who slipped on the ice.102 He held that proof that a woman had committed adultery was not a defense against calling her a dirty old whore. 103 He allowed recovery from emotional distress when accompanied by a slight physical injury.104 He found a gateman who inexplicably stood between the tracks of a railroad and was killed by a freight train in the process of coupling and uncoupling cars to be contributorially negligent.105 And he denied recovery to a postal clerk who had sued the railroad owning the train on which he was unloading mail for injuries suffered when a car from another railroad negligently hit that train.106

In only one torts case that Term was there a glimpse of the kind of role Holmes might have expected himself to play as a judge. In Patnoude v. New York, New Haven, and Hartford Railway107 a street railway company and the New York, New Haven and Hartford Railroad had agreed to unload a streetcar at a point on the railroad's tracks near the streetcar company's barn. The unloading process required the temporary dismantling of a fence that shielded the tracks from an adjoining highway. While the fence was dismantled and the streetcar, covered with a white canvas, was resting on a flat car of the railroad, a rider drove by on the adjacent highway and his horse, startled by the sight of the streetcar, reared and threw him. The question was whether the railroad was liable in nuisance or in negligence.

"As in many cases," Holmes said in his opinion finding for the railroad, "two principles or social desiderata present themselves, each of which it would be desirable to carry out but for the other, but which at this point come into conflict." It was "desirable that as far as possible people should be able to drive in the streets without their horses being frightened, [and it was also] desirable that the owners of land should be free to make profitable and otherwise innocent use of it." A "line has to be drawn to separate the domains of the irreconcilable desires, [but] such a line [could] not be drawn in general terms."108 In the Patnoude case, however, the condition of the railroad's car and fence was transitory, and its potential for frightening horses did not necessarily mean that it was unlawful.109 Torts cases involved drawing lines, balancing irreconcilable desires, and giving common-sense interpretations to facts. General propositions were not much help in deciding them.

With Patnoude one can see how far Holmes' conception of judging had evolved from the one he held when first appointed to the Massachusetts court.110 While he had enjoyed getting to the bottom of things and formulating generalizations as a scholar, such activities were not easily related to appellate judging. The facts of individual cases were so diverse, and the competing principles so generally worthy, that arbitrary line-drawing was the inevitable result. Such line-drawing could not be generalized. Setting forth "the whole corpus" of law, or "writ[ing] it in continuous, logical, philosophic exposition"111 were tasks beyond the reach of judges, who had to decide difficult, limited, and largely trivial cases.

Holmes had learned two lessons from his experience on the Supreme Judicial Court of Massachusetts. The first lesson was that cases inevitably presented conflicts between desirable social principles, and judges simply had to choose. That choice was an act of policymaking, not an inevitable unfolding of common law principles. The second lesson was that since such choices were arbitrary, and since the process of line-drawing could not be generalized, judging was a far more modest and less creative activity than Holmes expected. These lessons fostered two judicial habits in Holmes: the habit of deferring especially arbitrary policy choices to some other body, such as a legislature or a jury, that arguably reflected community sentiment; and the habit of not agonizing over the reasoning that justified an arbitrary choice. By the time Holmes left the Massachusetts court in 1902 his opinions were already notable for their brevity, their assertiveness, and their cryptic language. It was as if Holmes recognized that his decisionmaking process was largely arbitrary and decided to get on with it.

The Massachusetts years were also notable for a significant change in the attitudes expressed in Holmes' scholarship. The Common Law, I have argued,112 had been a reformist tract, seeking to show by example that a thorough canvass of private law subjects could yield some clarifying and organizing principles. One message of The Common Law was that such principles were there to be extracted and applied to real-life situations by judges. The meaning of a private law subject, Holmes seemed to be saying, could be found in this body of intelligible principles.

By 1897, when he delivered his address, "The Path of the Law,"113 Holmes was offering a very different definition of the meaning of law. Notwithstanding the claims of "some text writers" that law was "a system of reason" or "a deduction from principles of ethics or admitted axioms," law could be most accurately described as "prophecies of what the courts will do in fact."114 While the "language of judicial decision" was "mainly the language of logic," behind the "logical form" lay "a judgment as to the relative worth and importance of competing legislative grounds." Judicial decisions were "opinion[s] as to policy" that merely "embod[ied] the preference of a given body in a given time and place."115 The "duty" of judges was to weigh "considerations of social advantage."116

"The Path of the Law" had stressed lesson one of Holmes' experience as a judge: while judges may attempt to cloak their decisions in logic, the decisions were instinctive policy preferences. "Law in Science and Science in Law,"117 delivered two years later, stressed lesson two. Holmes had some faith in science as a vehicle for measuring the social desires that he saw competing in a case.118 He conceded that an "absolutely final and quantitative determination" could only occasionally be reached "because the worth of the competing social ends which respectively solicit a judgment for the plaintiff or the defendant cannot be reduced to number and accurately fixed."119 Since policy grounds lay behind the use of legal rules, a "quantitative comparison" of the competing social desiderata seemed desirable. Such a comparison led Holmes back to a variant on his original passage from "The Theory of Torts."120

In our approach towards exactness we constantly tend to work out definite lines or equators to mark distinctions which we first notice as a difference of poles. . . . When [we] ha[ve] discovered that a difference is a difference of degree, that distinguished extremes have between them a penumbra in which one gradually shades into the other, . . . [we realize that we have] to draw the line, and an advocate of more experience will show the arbitrariness of the line proposed by putting cases very near to it on one side or the other. But the theory of the law is that such lines exist. . . . We like to disguise the arbitrariness, we like to save ourselves the trouble of nice and doubtful discriminations.121

Thus Holmes concluded that judging ended up being the arbitrary resolution of "a conflict between two social desires, each of which seeks to extend its dominion over the case, and which cannot both have their way." In making that resolution judges were "exercis[ing] the sovereign prerogative of choice."122 They were "weigh[ing] the reasons for the particular right claimed and those for the competing right." Their solutions could not be in general terms, because "generalities [were] worse than useless."123 Their solutions were bound to rest on "general grounds of policy blindly felt."124

Such were the lessons of twenty years on the Massachusetts bench. And there were two curious, and potentially contradictory, corollaries to those lessons. Since legal decisions were at bottom choices between competing social policies, it was essential that such choices reflect the wishes and feelings of the community, so that the law might keep pace with current thought.125 Judge-made law had a tendency to prefer the logical form to the candid policy statement, and consequently sometimes became ridden with anachronistic rules and outmoded propositions. Especially in doubtful cases, then, Holmes thought that the practice of deferring policy choices to the jury was a good one: juries were apt to "introduce into their verdict a certain amount. . . . of popular prejudice."126 In a case like Patnoude, where a right to ride without fear of injury conflicted with a right to use property in a profitable manner, one could label as a question of fact whether the use that invaded the right was negligent, and let a jury decide which social desideratum it preferred. A sense of the arbitrariness of judicial decisionmaking, then, led to a desire to defer, in close cases, to a more community-minded tribunal.

At the same time, however, that sense of arbitrariness led to a desire to exercise the sovereign prerogative of choice. Holmes had no particular confidence that juries "could see further into things or form a saner judgment than a sensible and well trained judge."127 He thought that a well-trained judge could "follow the existing body of dogma into its highest generalizations," then "discover from history how it has come to be what it is," and finally "consider the ends which the several rules seek to accomplish"128 and make a choice. Indeed, he thought that a judge need not do all those things; he might have liked to have done them, but he had not done them often in his opinions. What he had done was to see the internal conflict presented by a case, measure the competing social desires in his mind, and make an arbitrary choice. Having done that, he had made use of logic and his own command of language, and had produced an opinion. Judging in that manner was not difficult, so long as one recognized what one was doing.

In these two peculiarly divergent corollaries lay the seeds of Holmes' constitutional jurisprudence. Holmes' opinions on the Supreme Court were of two very different types. The first type, which brought him public acclaim,129 emphasized the unsoundness of judges substituting their judgment on social issues for that of legislatures. Legislatures, like juries, were repositories of contemporary prejudices; there was something to be said for letting them decide difficult policy questions. In this deferential stance Holmes appeared as a judge aware of his own limitations, an appearance that was deceptive. The second type of opinion that Holmes produced on the Court resembled many of his private law opinions in Massachusetts: it was a brief, cursory, and cryptic determination of a difficult and complex issue. In the first type of opinion Holmes seemed chastened by the recognition of his arbitrary power; in the second he seemed to revel in it.

III THE SUPREME COURT: A "JOB" MENTALITY

After being appointed to the Supreme Court in 1902 Holmes wrote Pollock of his delight with his new position. "I am . . . more absorbed, interested and impressed than ever I had dreamed I might be," he said. "The variety and novelty to me of the questions, the remote spaces from which they come, the amount of work they require, all help the effect."130 But before long Holmes began to see recurrent themes. Most questions before the Court were questions of degree; beneath "the lion's hide" of a case was "the same old donkey of a question of law."131 Holmes could write two opinions a week, finishing the first one assigned to him at a Saturday conference by Tuesday and the second by Saturday. In listening to counsel argue before the Court he could summarize an argument before the lawyer had finished making it. His law clerks, whom he hired from 1905 on at the suggestion of John Chipman Gray, Ezra Thayer, or Felix Frankfurter, had very little legal research to do: Holmes wrote his own opinions, asking only for an occasional citation. The clerks paid his bills, answered routine correspondence, read to him in his last years, and above all were sounding boards on contemporary issues. When another justice needed research help, Holmes lent them out.132

Despite the "burning themes" that appeared in constitutional cases and despite the great public attention that his opinions, especially his dissents, received, Holmes primarily thought of his work on the Supreme Court as a "job." In 1928 Holmes wrote Lewis Einstein that "when I am on my job I don't care a damn what you want or what [a President] wants."133 Yosal Rogat once likened Holmes' attitude toward his work on the Supreme Court to that of a pony express rider who "had to undertake a dangerous and exhausting series of rides in order to insure the survival of the city." While Holmes may have ridden hard, he "was not motivated by the city's survival. . . . Rather, he executed the assignment simply because he had undertaken it and. . . . to bring back a map of the terrain."134 Repeatedly in his Supreme Court opinions Holmes conveyed this sense of detachment. He once said in a dissent that "[t]here is nothing that I more deprecate than the use of the Fourteenth Amendment. . . to prevent the making of social experiments . . . in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me.""135

Detachment seems the most accurate term to characterize Holmes' stance on the Supreme Court. He was not merely skeptical; his emotions were for the most part not engaged. To put it more precisely, his emotions were stimulated by the professional features of his work but not by its substance. Few judges could pack more emotion into an opinion, but the emotion was not often generated from compassion for the litigants or concern for the seriousness of the issue at stake. It was the emotion of a literary talent, a person who liked the sound of memorable phrases. Holmes' aphorisms were original and incisive; they were also repeated often.

One can see Holmes' stance of detachment as a culmination of his intellectual history. By all accounts he was not only serious about philosophy and jurisprudence as a young man; he was in dead earnest. He clung to his manuscript on Kent, taking it with him to meals; he taught himself German so as to be able to read the contribution of German jurists in the original; he worked nights on the lectures that became The Common Law; he allegedly married Fanny Dixwell, whom he had known most of his life, only when someone else mentioned that she was pining away out of love for him.136 From the 1870s, when he first began to think and write about jurisprudence, to the time he went on the Supreme Judicial Court of Massachusetts, he was a passionate and zealous legal reformer, eager "to say his say on every question which the law has ever presented." And then, as we have seen, the futility of his grand design revealed itself. Cases were not vehicles for propounding a grand theory, but merely clusterings around poles; judging was not writing law "in continuous, logical, philosophic exposition" but an exercise in the arbitrary drawing of lines. One could not live one's dreams: "We are lucky enough if we can give a sample of our best."137

Holmes' sense of his professional role thus radically contracted over time, and his reduced expectations combined with traits of personality to produce detachment. Acquaintances of Holmes had from his early years noted his apparent indifference to others. His father thought he "look[ed] at life as at a solemn show where he is only a spectator";138 William James called him "a powerful battery, formed like a planing machine to gouge a deep self-beneficial groove through life";139 James Bradley Thayer, embittered over Holmes' leaving Harvard for the Massachusetts court, had said that he was selfish, vain and thoughtless.140 Holmes did not read a newspaper, paid little attention to contemporary affairs, had most of his intimate friendships with persons from whom he was physically separated, and once said that he was glad that he had no children.141 The themes that engaged him, such as intellectual effort and war, were related to central personal experiences. Beyond that he seemed content to "do my job in the station in which we were born."142

Holmes' job at the Supreme Court consisted of, in many instances, reviewing the constitutionality of actions of a legislature. In such cases Holmes forged his famous attitude of deference, which was seen as humility and "self-restraint" by admirers and had the added advantage of sustaining "progressive" legislation about which a number of early twentieth-century intellectuals were enthusiastic.143 Deference to legislative policymaking was consistent with the views Holmes had developed on the Massachusetts court. In twenty years on that court he had held unconstitutional only one Massachusetts statute.144His general attitude was expressed in an advisory opinion on the constitutionality of the legislature's authorizing towns to buy coal and wood and sell them to their inhabitants as fuel.145 "[W]hen money is taken to enable a public body to offer to the public . . . an article of general necessity," Holmes wrote, "the purpose is no less public when that article is wood or coal than when it is water or gas or electricity or education, to say nothing of cases like the support of paupers, or the taking of land for railroads."146

Deference, of course, was consistent with Holmes' belief that judging was an arbitrary exercise in policy choices, and, that being so, some policy choices were better made by more "representative" bodies of government. He may have been motivated to express his views more openly, however, by the clumsy policymaking of his contemporaries on the Supreme Court. In the first years of the twentieth century the constitutionality of a number of pieces of "welfare" legislation was tested by the Court. The legislation sought to regulate the working hours of certain occupations or persons, to insure minimum wage standards, to eliminate child labor, and other such "reforms." Holmes was not personally sympathetic to most of the legislation, but he was even less sympathetic to the treatment of it by majorities on his Court. Those majorities had invalidated the legislation by the use of the "liberty of contract" doctrine, which Holmes later called a "dogma."147 Liberty of contract was objectionable to Holmes in that it attempted to decide "concrete cases" on the basis of a "general proposition" that was suspect as a matter of textual interpretation and debatable as a matter of economic theory.148 The Court had sustained many legislative acts that interfered with freedom of contract, and the Constitution was "not intended to embody a particular economic theory"149 To transform the Fourteenth Amendment into an ideological creed was to "pervert" it.150

It is instructive to dwell on what Holmes thought was wrong with the majority's decisions in such liberty of contract cases as Lochner v. New York,151Adair v. United States,152 and Adkins v. Children's Hospital.153 He did not object to the substance of the doctrine itself; he would have "to study it further and long" before endorsing it or rejecting it.154 Nor did he necessarily object, at least as a general proposition, to the Court's substitution of its judgment for that of a legislature. What he objected to was the clumsy use of a "dogma" to decide questions that ought to have been decided by a consideration of the ends that rules seek to accomplish, the reasons those ends are desired, what is given up to gain them, and whether they are worth the price.155 Such a consideration was presumptively suited to a legislative judgment, and if the Court were to distrust that judgment it ought to do so in a manner that did not so transparently expose the "convictions or prejudices" of its members.156

In deferring, Holmes thus neither espoused the worth of legislation nor expressed concern that judges ought to leave policy decisions to someone else. He merely felt that if judges were going to make arbitrary choices, they ought not to base those choices on vulnerable dogmas. Thus the principal problem with decisions like Lochner was not that the Court based its judgments on an economic theory, although Holmes said that a constitution was not made to embody economic theories,157 but that it based its judgments on a theory that "a large part of the country does not entertain."158 While a constitution was "made for people of fundamentally differing views," the views that counted were those of the majority.159Policymaking in America was largely a majoritarian activity; where minorities, such as the courts, made policy, they had better keep their "theories" in line with popular sentiment.

Holmes' deference thus sustained repressive legislation as much as benevolent legislation. The Pennsylvania legislature could, under a wild game protection act, keep aliens from owning firearms because its members believed that aliens were more prone to violence in this area than native citizens.160 The Virginia legislature could sterilize persons thought to be feebleminded because it assumed that imbecility bred imbecility and that imbeciles were a burden on the state.161 The Iowa legislature could forbid the teaching of all languages except English in public schools because it believed that in this fashion German culture and influence within the state would be reduced.162 Congress could restrict speech so long as the words created "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,"163 and those evils might be defined by mass prejudice. The most one could expect of legislation, Holmes had written very early in his career, was that it "modify itself in accordance with the will of the de facto supreme power in the community."164 Keeping "the sacrifice of minorities to a minimum" was dependent on "the spread of an educated sympathy."165

Students of Holmes have found his posture of deference so fascinating that they have defined his entire career on the Court in terms of it.166 But the bulk of Holmes' Supreme Court opinions were cases in which he did not defer to a legislative policy judgment, but rather made one himself, and made it, as he had on the Massachusetts, court, with relatively little attention to exposition. Three cases are representative: Baltimore and Ohio Railroad v. Goodman,167United Zinc & Chemical Co. v. Britt,168 and Pennsylvania Coal Co. v. Mahon.169

In The Common Law Holmes, in the course of arguing that courts should increasingly take negligence cases away from juries, supported his argument with some observations about grade crossing accidents. "If the whole evidence," he wrote, "was that a party . . . stood on a railway track, looking at an approaching engine until it ran him down, no judge would leave it to a jury."170 On the other hand: "If the whole evidence was that he attempted to cross a level track, which was visible for half a mile each way, and on which no engine was in sight, no court would allow a jury to find negligence."171 These examples suggested to Holmes that "the limit of safety" in grade crossing cases "could be determined almost to a foot by mathematical calculation."172Goodman was a grade crossing case in which Holmes attempted to prove that point. Nathan Goodman, the driver of a truck, was approaching a grade crossing at the speed of about five to six miles an hour. The crossing was over a level section of track, but Goodman's view on one side was obscured by a section house, so that he could not see anything until he was about twenty feet from the first train rail, and "then the engine was still obscured by the section house."173 Goodman continued to cross the tracks, was hit by a train going at least sixty miles an hour, and was killed.

After stating the facts Holmes announced that "it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death."174 He then overturned a jury verdict for the driver, holding that Goodman was contributorially negligent as a matter of law. He declared that "if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look."175 This was a clear standard of conduct and was to be "laid down once for all by the Courts," although "the question of due care very generally is left to the jury."176

Goodman seems to have been a case in which Holmes had forgotten the lessons of his Massachusetts experience. He may have continued to believe in 1927 that "the limit of safety" in grade crossing cases "could be determined almost to a foot," and he may have been correct that under the circumstances Goodman was negligent. But "mathematical calculation" or Holmes' "stop, look and listen" exercise was not going to fix the limits of safety in grade crossing cases. Some drivers might follow Holmes' standard, get back in their cars, and then get hit by a train that was plainly obvious from a considerable distance. Were they to be exonerated? Others might decide not to get out of their cars because of the dangers of approaching traffic. Were they necessarily negligent? Holmes' formula ended up being a good argument for retaining jury discretion in grade crossing cases, and seven years later the Supreme Court, with Justice Cardozo treading carefully, abandoned the formula.177

Goodman shows Holmes anxious not only to make a judgment himself but to deprive juries of the opportunity to make that judgment in subsequent cases. The case was striking in that it lent itself to Holmes' "competing desiderata" analysis. A policy of allowing drivers to drive on the streets without being injured competed with a policy of allowing railroads to use their property in profitable ways. In Patnoude Holmes had said that the line that "had to be drawn to separate the domains of the irreconcilable desires" could not be "drawn in general terms."178 In Goodman he had attempted to do so. One could hardly call his posture deferential.

Holmes' decision in Britt was somewhat less ambitious. He sought to ascertain the limits of the "child trespasser" doctrine, by which landowners were deemed to owe a duty of care to children trespassing on their premises if the children could be said to have been attracted onto the premises by something on the land. Examples were railroad turntables, ponds, and excavations. In the Britt case two boys were camping near land where the United Zinc & Chemical Company had formerly operated a sulphuric acid plant. The company had abandoned the plant but left its foundations, in which residue from sulphuric acid and zinc sulphate remained. Water had accumulated over the foundations, giving the area the appearance of a pond, but the water, although clear, had been poisoned by the residue. The two boys investigated the site, a little over 100 feet from a dirt road, were poisoned, and died.

Holmes distinguished previous child trespasser cases on the grounds that the United Zinc & Chemical Company did not know that children had been in the habit of visiting the site and had not maintained the site adjacent to the road. "[I]t is at least doubtful," he wrote, "whether the water could be seen from any place where the children lawfully were." There had been no inducements, Holmes felt; there was no evidence that the water had "led [the boys] to enter the land." There was no pattern of children trespassing on the land that might have informed the United Zinc & Chemical Company of potential dangers. Even the presence of roads close to the site were not invitations: "[A] road is not an invitation to leave it elsewhere than at its end."179

Britt seems to have been a case ideally suited to leave to a jury, and as such raises the question why Holmes did not adopt that course of action. Child trespasser cases inevitably turn on their facts: how much of an "inducement" the dangerous substance was, how much awareness the landowner had of trespassers, how easy the dangerous substance was to reach, etc. Given the fact that landowners had long been held to owe no duty to trespassers, the child trespasser doctrine seemed designed for those circumstances where a landowner knew that he was maintaining a dangerous substance on his land and knew or should have known that it would be attractive to children. If the railroad turntable was a paradigmatic attractive nuisance, since it was adjacent to a roadway and since it was the kind of substance that would appeal to children as a place to play, a pond near an abandoned building was not far from that paradigm. The only complicating factors in the Britt case were that the company apparently had no experience with trespassers on the site and that the site was not adjacent to the road. But those were surely not conclusive on the question of liability, given the very dangerous condition of the pond. The case seemed designed to be decided by the "common sense" of a jury.

It appears that some of the same tendencies that motivated Holmes to lay down the "stop, look and listen" standard in Goodman were at work in Britt. In his early career Holmes had been dismayed at the unpredictability and uncertainty of jury-made rules: If the child trespasser doctrine was to be invoked or not invoked depending on the sympathies of a jury, it was not a doctrine whose existence helped landowners (or potential trespassers) plan their affairs. Holmes seems to have wanted to use the Britt case as a means of confining the doctrine to those cases where a landowner had notice of children trespassing near a dangerous substance on his property. So formulated, the doctrine's impact would be greatly reduced, since it could never be invoked against a landowner in a "first accident" case. Once two boys had died as a result of coming into contact with a zinc company's dangerous abandoned plant it is unlikely that the company would permit the plant to remain in that condition; at a minimum it would post conspicuous warnings. Only if the company did nothing and a second accident involving children occurred would the child trespasser doctrine come into play. That was a predictable state of affairs; it was also unlikely to happen.

Goodman and Britt may suggest that Holmes' "activist" decisions on the Supreme Court were confined to those instances where he had engaged himself as a scholar. But many of Holmes' most famous opinions came in areas, such as the First Amendment, that he had not addressed in his early career, and in some of these opinions he dropped his usual pose of deference to legislatures. The line of first amendment cases, stretching from Abrams v. United States180 through Gitlow v. New York,181Whitney v. California,182 and United States v. Schwimmer183 to Near v. Minnesota,184 was one set of examples: Holmes attempted to fix the outer limits of legislative regulation of speech. Nixon v. Herndon,185 a case invalidating a Texas primary system that excluded blacks from participation, was another. Holmes said for the Court: "States may do a good deal of classifying that it is difficult to believe rational, but there are limits."186Olmstead v. United States187 was yet another: there Holmes read the Fourth and Fifth Amendments to prohibit the use of illegally seized evidence in a criminal prosecution. The case invoked "two objects of desire, both of which we cannot have," Holmes said; "we must . . . make up our minds which to choose."188 He was unwilling in that instance to let a legislature make the choice.

Nor was Holmes willing to defer to a legislative judgment in Mahon.189 There the Pennsylvania legislature had passed a statute that forbade the mining of anthracite coal on land in such a way as to endanger structures erected on the surface of the land in question. A landowner sought to apply the statute to prevent the Pennsylvania Coal Company from mining on land he had bought from the company. The company had expressly reserved subsurface rights to the land and had also retained the right to remove coal from beneath the surface. Since the contract between the coal company and the landowner had been made prior to the passage of the statute, the question was whether the statute was an unconstitutional deprivation of existing property and contract rights.

Holmes, for a majority of the Court, held that it was. "The general rule," he announced, "is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Here the Pennsylvania legislature had provided no compensation for the mining companies, and thus had infringed their rights. "We are in danger of forgetting," Holmes noted, "that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Even if the statute had been passed "upon the conviction that an exigency existed," the "question at bottom [was] upon whom the loss of the changes desired should fall."190

Compensation cases such as Mahon involved "question[s] of degree," Holmes said, and "therefore [could] not be disposed of by general propositions." That being said, he did not defer to legislative balancing. The Pennsylvania statute went "beyond any of the [compensation] cases decided by this Court." A strong public desire for property did not itself justify a taking without compensation; otherwise the legislature could invoke its police power "more and more until at last private property disappears."191

Mahon was not different for Holmes from the speech cases or from Nixon v. Herndon: there were limits to what states could do under their discretionary authority. Commentators have reacted differently to Mahon because Holmes protected property rights rather than personhood rights, but Holmes made no such jurisprudential distinctions. When he invoked the Constitution to invalidate a legislative restriction on rights, that was because the legislature had gone "too far." What was "too far" was a "question of degree," but sometimes the answer was obvious. When it was, Holmes saw no reason—"exigencies" notwithstanding—to defer to legislative judgments.192

Neither conventional political labels nor common terms from jurisprudence help clarify Holmes' stance on the Supreme Court. Several commentators have shown that his opinions are imperfectly described as "liberal" or "conservative."193 This article suggests that they are no more satisfactorily described as "activist" or deferential. When Holmes' tenure on the Supreme Court is subjected to detailed analysis, two striking and hitherto largely unremarked features appear. First, Holmes was nowhere near as activist in private law cases as his early scholarship suggested he might have been, but he was more activist, if anything, than he had been on the Supreme Judicial Court of Massachusetts. The Goodman and Britt opinions were in some sense throwbacks to his earlier theory, formulated as a scholar, of how negligence cases ought to be decided. Holmes retained on the Supreme Court the idea that most cases presented policy choices between competing "social desiderata," and while this led him toward deference to legislatures in many cases, it did not prevent him from making choices in others. He believed the choices to be arbitrary, but he made them anyway. Calling Holmes an advocate of self-restraint on the Court does not fully capture him.

Second, while Holmes saw that at the bottom of nearly every Supreme Court case was a choice between competing public policies, he was not deterred by that realization from making a prompt decision. If he chose to defer to a legislature, he spent very little time justifying the legislature's actions: the simplest bow to minimal rationality generally sufficed. Sometimes, in cases like Patsone v. Pennsylvania,194 Holmes did not even seem to be lingering over the question of legislative rationality. In that case he blithely accepted the legislature's premise that aliens were more dangerous to wildlife than citizens. Nor was Holmes any less peremptory when he chose to upset a legislative judgment. That the Texas legislature had gone too far in Nixon v. Herndon was "too clear for extended argument."195 That the Pennsylvania statute in Mahon went "beyond any of the cases decided by this Court" needed only to be stated.196

The overwhelming impression of Holmes' performance on the Supreme Court, then, is the same impression one gets of his performance in Massachusetts. Here was a judge whose principal interest seems to have been in having cases decided, written up, and disposed of. The vivid sentence with which Holmes ended his opinion in Britt, "a road is not an invitation to leave it elsewhere than at its end."197 captures the mood in which Holmes appears to have written most of his opinions. The sentence is striking, but it is not much help, either as a general statement or as an explanation of the case. Travelers leave roads at a variety of places—indeed almost no one who travels on a road leaves it at its end. A road, in fact, is not an "invitation" to leave it at all; if anything, it is an invitation to take it somewhere, as being an easier place on which to travel than a field or a stream. But the sentence is designed to dismiss the argument that the presence of the road in Britt may have been an enticement to travel near the poisoned site. The sentence does "dismiss" that argument, but only through a largely erroneous statement that captures our attention. It is as if having turned a phrase Holmes decided that he had said enough, and could get on to something else. Holmes makes cases seem like toys scattered in a child's room: The idea is to pick them up and put them in place, not to linger over the differences among them nor to give some more special meaning than others. When the job is over, the room is clean; the toys are "put away."

IV REMEMBERING HOLMES: WHAT DOES HE LEAVE US?

However much Holmes is written about or ignored, his reputation seems secure. I have suggested that his reputation may contain some erroneous components, such as the idea that he was consistently an apostle of judicial self-restraint, but that is not to suggest that it will not endure. Three of Holmes' contributions seem so significant as to resist even the most aggressive form of historical debunking. First, he identified judging as an exercise in intuitive policy choices at a time when few other judges or jurists were prepared to concede that judging was anything other than finding and applying preexistent legal principles. For Holmes to see that cases were repositories of clashing policies was a keen enough insight; for him to come upon that insight in the midst of a jurisprudential climate that denied any policymaking component to judging was remarkable.

Second, Holmes helped develop a significant corollary to his insight that judges were policymakers. The corollary was his theory of deference, and while he did not originate the theory nor practice it exclusively, several of his opinions were powerful arguments for its use. This was particularly true in the public law area, and most particularly true in Supreme Court cases, where Holmes' version of good sense was juxtaposed against tortured judicial efforts to preserve "dogma" at all costs. The accident of Holmes' being on the Supreme Court at a time when legislatures had become more active, and the Court had not developed a theory of responding to that activism, made him one of the original spokesmen on the Court for a theory of constitutional adjudication that was to have great influence in the twentieth century. While Holmes was never as zealous a proponent of self-restraint as some of his disciples, his opinion in Lochner gave deference intellectual respectability.

Third, as the last sentence from Britt illustrates, Holmes had a distinctively arresting style. No Supreme Court Justice matched Holmes in this regard; only Robert Jackson occasionally came close. The holdings of Holmes' opinions may be forgotten, but the epigrams remain. "A word is . . . the skin of a living thought";198 "[g]reat cases like hard cases make bad law";199 "[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics";200 "the best test of truth is the power of the thought to get itself accepted in the competition of the market";201 "[t]hree generations of imbeciles is enough."202 Not one of these sentences was necessary to the decision in the case in which it appeared; all contain overstatements or ambiguities. Each, however, helps to universalize the act of opinion writing, to make it a process of communicating at the deepest levels of human experience. When a judge can write in that fashion subsequent generations will be gripped by his style. No notes of dissatisfaction with his opinions as guidelines for future conduct will fully detract from his appeal. Holmes wrote lines that spanned time.

But can one remember Holmes as more than the author of arresting epigrams? Does his jurisprudence leave us a foundation for thinking about judging? Here it seems that on some issues Holmes seems so overwhelmingly right that one wonders how a contrary position was ever seriously maintained, and on other issues Holmes seems so disinclined to explore questions once he has raised them that one is tempted to conclude that an important function of his jurisprudence is to cut off thinking at preliminary stages.

Holmes may have thought, when he was at the fever pitch of his scholarly efforts in the 1870s, that, while absolute certainty might be unattainable, fields of private law could be made more certain, in the sense of being more regularized and predictable. The impulse toward certainty is a strong one in legal scholarship: recently we have seen the "laws" of welfare economics offered as yet another source of regularizing the common law. But we should have learned the lesson Holmes had learned after sixteen years as a judge: "[c]ertainty generally is illusion, and repose is not the destiny of man."203 Too many variables exist for certainty in the law to be realizable: the discrete personalities and idiosyncracies of judges and other lawmakers; the changing intellectual climates in which research is conducted, which affect the normative dimensions of research and thereby insure that scholarly contributions will never be timeless; the fortuitous allocation of talent and incentives among counsel for one side or another; the strange ways in which the facts of a case compel a rule, which then evaporates when the facts fade into memory. Holmes may have been sensible, as a young scholar, to search for certainty; had he not thought it attainable he might not have tried to study private law subjects to their bottom. But he was even more sensible to abandon certainty as a judge. His metaphor of "growth" in the law, a series of decisions clustering around two poles and finally being separable only by an arbitrary line, rings truer than all the pronouncements that law can be made "scientific." I would not call Holmes' metaphorical description a process of growth, merely one of change, but I think as a description it is uncontroverted.

Does it follow, then, that since certainty in jurisprudence is elusive, humility and deference are the only appropriate lawmaking postures? Here I think Holmes' own indifference and the misguided labors of his disciples have contributed to lend prominence to a theory of judging that possesses serious limitations. During Holmes' tenure judicial deference resulted in legislation that helped alleviate some of the inequalities of rampant industrialism; in the 1950s and 1960s a similar version of deference would have perpetuated malapportioned legislatures, racially segregated facilities, the absence of legal representation for impoverished persons, and restrictions on the use and dispensation of birth control devices. The simple truth that law cases in America serve as a forum for testing conflicting ideas about public policy does not suggest that all such decisions should be made by "representative" or "community-minded" bodies, such as legislatures or juries. Sometimes the choices of the public are benighted or hasty or prejudiced; sometimes the majority oppresses those who differ with it. Holmes taught us that judges, if unchecked, will make justice synonymous with their own prejudices. The Warren Court taught us that legislatures will do the same.

Deference or activism is thus a function of time and place and of the seriousness of the issues at stake. Sometimes a court does well to defer: the issues are volatile, the public divided, the principles hard to grasp. At other times a court seemingly has an obligation not to defer: a more representative body has forgotten elementary principles of justice and needs to be admonished by an institution whose popularity is not so dependent on majoritarian whim. It stretches Holmes beyond recognition to make him a Warren Court Justice, but he had his own areas, ranging from speech to subsurface mining, where he found majoritarian solutions defective. Still, while one would like to blame Holmes' disciples for the agonized state in which self-restraint theory found itself after World War II, Holmes set it on that path.204 He found legislative rationality in too many mere pretexts, he tolerated repression in the name of democracy too often. Before long judges who considered themselves intellectuals and "liberals" in the tradition of Holmes were allowing legislatures to compel school children to salute the flag and to require that college professors go on record as opposing Communism.205 Holmes' theory of deference had led them there; his having scrapped the theory when it suited him did not excuse his putting it on the market for others to misuse.

Linked to Holmes' beliefs that certainty was an illusion and that deference was often a sensible judicial posture was his conviction that judicial decisions were at bottom arbitrary exercises. As we have seen, the discovery of arbitrariness led Holmes in two directions, toward deference and also toward a "job mentality" that emphasized deciding cases so that they could be decided. Arbitrariness raises two separate issues: are we resigned to its presence, and, if so, what can we do about it? As to the first, to sense that human decisionmaking is arbitrary seems to me the beginning of wisdom about the way persons conduct their affairs. All of us have our memories of a nakedly arbitrary decision, ranging from a situation when two devotees of one side of an issue forgot the date of a meeting and the other side won by a single vote, to a situation where a committee was deeply divided on the resolution of an academic matter and finally decided in accordance with the views of the sole member who prepared written comments. Beyond those examples, all of us sense that many decisions are made that would have been made differently had different personnel been involved, had the timing of events been different, or had the issue been presented in different form. Holmes was right to see arbitrariness built into every discretionary decision; he was also right not to be afraid of it.

But does arbitrariness provide a justification for the kind of limited explanations for decisions that Holmes so regularly produced? Here it seems to me that one can advance two interpretations of the purpose of a judicial decision, and the explanations that one produces for one's results will be affected by the interpretation one chooses. One can see the decisions of cases as single existential phenomena: They occur, they dispose of a controversy, they cease to have an existence. Or one can see such decisions as communications beyond the immediate controversy, directed, potentially, at future litigants, future judges, commentators, the general public. If one holds to the first view there is not much point in advancing extensive justifications for one's results. New cases will necessarily be different; a whole host of variables will serve to distinguish them from the past, and prior explanations will not prove much use. I think that in many instances Holmes adopted this view, or at least was sufficiently skeptical of the utility of extensive explanations and sufficiently motivated to get on with the job that he acted as if he adopted it. On other occasions, of course, Holmes regarded a decision as a means of communicating more extensively; he did not dissent just to see how many memorable phrases he could turn.

The idea that judicial opinions communicate to audiences beyond the immediate parties in the dispute is one that once led me to characterize constitutional adjudications as a dialectical process.206 The dialectical theory holds that judicial decisions, at least when they interpret the Constitution, are in a kind of provisional state of acceptance; they possess the authority of the court that delivers them but their eventual acceptance—their legitimacy—has not been achieved. The process of legitimation involves a testing, over time, of the justifications advanced for the given interpretation. Of course the interpretation yields a definite result, and the controversial nature of the result will play a part in how swiftly or how searchingly the interpretation is tested. But the process occurs to some extent in all decisions.

When a decision is being "tested," the pressure points of its explanatory apparatus may make a difference in how fully it becomes legitimated. To take a contemporary example, an opinion that seems not yet to have reached the status of being legitimated is Roe v. Wade,207 which is eight years old at this writing. Roe v. Wade's indeterminate status is partially a function of the controversial nature of the issue it purports to resolve: abortion is not an issue easily "settled" in one fashion or another. The decision's indeterminate status seems also linked, however, to its explanatory strategy, which chose to emphasize the state of medical knowledge about when a life is "in being" as a crucial determinant for when an abortion is permissible. Such an emphasis, of course, renders the decision vulnerable to changes in the state of medical knowledge. If the time a life is said to come into being were to recede, in the view of a dominant number of qualified medical practitioners, until a point so close to conception that any abortion would be a termination of "life," Roe v. Wade's guidelines for abortion, which allow a mother unrestricted autonomy to terminate a pregnancy in the first trimester, might be threatened. In that instance Roe v. Wade could be taken as a communication into the future that was eventually found lacking in persuasive power due to the outmoded assumptions on which it rested.

Such seems to be the fate of many constitutional opinions. But one might argue that this form of communication, regardless of its vulnerability, is preferable to the cryptic, assertive form adopted by Holmes in many of his opinions. An explanation like that advanced in Roe v. Wade seems to be saying: "Here are my choices, between life and the autonomy of personhood; my decision to choose one over the other is necessarily arbitrary, but is influenced by some assumptions about the medical nature of 'life'; if those assumptions are subsequently called into question, another arbitrary choice may result." Holmes' explanations rarely sought to communicate in so extended a fashion. Indeed when Holmes retreats to the kind of language he used to explain his results in such cases as Patsone—a reasonable man might well think aliens are dangerous to wildlife208—one gets the impression that his tongue is in his cheek; that he is using the convention of deference to cut off communication rather than to open it up.

Here, finally, I come back to Holmes' job mentality. There are many cases, he seems to be saying, where the choices are between generally desirable policies that happen to conflict; we must prefer one or the other; we will surely not invariably prefer that one on every occasion; we have a case to decide; let's get on with it. But that method tells us precious little about why one policy should prevail over another even in this case. It seems to tell us, in fact, only that the judge made a choice; another judge might have decided differently. That message leads us to "The Path of the Law" and the "prophecies of what the courts will do in fact,"209 to the idea that law is synonymous with the arbitrary fiats of officials, and to related cynical revelations. If we end up endorsing such cynicism, Holmes can take some of the credit.

But I think Holmes intended to convey something more in his cryptic explanations. I think he was attempting to show that in a truly "hard" case, if you force an extended explanation, that explanation will crumble to pieces on reflection. And as one explanation after another crumbles, one is left with the fact of judicial power, the force of judicial intuition, and the way the law has of correcting itself over time. After a while, Holmes seems to say, it is not the explanations that count—they all crumble, eventually—but the decisions. One's job as a judge becomes to decide—that is what people count on one to do; that is what judges have the power to do where ordinary people do not—and not to agonize about why. Cryptic explanations, then, are intended to cut off thinking about issues that are sufficiently complicated and difficult to benumb one's mind. At some point one has to stop thinking and choose. It may be that Holmes' view of judging makes sense—and if it does, the concept of a dialectic of constitutional adjudication seems so much academic gossamer—but even if it cuts off thought and explanation too soon, it may not be the easy way out. The easy way out may be to pretend that sooner or later some disinterested, reasoned justification will emerge mysteriously out of one's ruminations as one tries to decide a case. Holmes looked to the bottom of cases and saw only his own reflection. Should we probe so far, we might conclude that reasoning in epigrams was preferable to more extended ratiocinations. Length is not the equivalent of depth.

NOTES

1 Holmes, Plato, 2 U.Q. 205, 206 (1860).

2 Letter from Oliver Wendell Holmes to Elizabeth Shepley Sergeant (Dec. 7, 1926), quoted in 1 M. Howe Justice Oliver Wendell Holmes 54 (1957).

3 White, The Rise and Fall of Justice Holmes, 39 U. Chi. L. Rev. 51, 77 (1971).

4Id. at 76.

5Id. at 77.

6 In the past two academic years, Harvard Law School, Northwestern University School of Law, the University of Illinois School of Law, and the American Society for Legal History have devoted lectures or symposia to Holmes' work, and Professors Patrick Atiyah, Robert Cover, Grant Gilmore, Robert Gordon, Morton Horwitz, Saul Touster, and Jan Vedder, as well as Judge Benjamin Kaplan, have delivered papers on various features of Holmes' career.

7 O.W. Holmes, The Common Law (1881).

8 O.W. Holmes, The Solider's Faith, in Occasional Speeches 73, 78-79 (M. Howe ed. 1962).

9See infra text accompanying notes 171-78.

10See infra text accompanying notes 161-66.

11 M. Howe, Justice Oliver Wendell Holmes (vol. 1, 1957; vol. 2, 1963).

12 2 id.

13See Tushnet, The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial Court, 63 Va. L. Rev. 975 (1977).

14 There are a few exceptions. See, e.g., Crocker v. Cotting, 170 Mass. 68, 71, 48 N.E. 1023, 1024 (1898) ("The jurisdiction is not affected by a defendant's recalcitrance"); Laplante v. Warren Cotton Mills, 165 Mass. 487, 489, 43 N.E. 294, 295 (1896) ("A boy who is dull at fifteen probably was dull at fourteen"); Lincoln v. Commonwealth, 164 Mass. 368, 378, 41 N.E. 489, 491 (1895) ("All values are anticipations of the future").

15See, e.g., 1 M. Howe, supra note 11, at 245-86 (Boston law practice); 2 id. at 26-95, 253-83 (Harvard years); id. at 1-95 (American Law Review experience).

16 Letter from Oliver Wendell Holmes to James Bryce (Aug. 17, 1879), quoted in 2 M. Howe, supra note 11, at 25.

17The Arrangement of the LawPrivity, 7 Am. L. Rev. 46, 47 n.2 (1872).

18 Book Notices, 5 Am. L. Rev. 341 (1870).

19The Theory of Torts, 7 Am. L. Rev. 652, 659-60 (1873).

20 Book Notices, supra note 18, at 341.

21The Theory of Torts, supra note 19, at 659-60.

22 Book Notices, 5 Am. L. Rev. 359 (1871).

23The Theory of Torts, supra note 19, at 659.

24 O.W. Holmes, supra note 7, at 89.

25See 2 M. Howe, supra note 11, at 136.

26 O.W. Holmes, The Path of the Law, in Collected Legal Papers 167, 186-87 (1920).

27 O.W. Holmes, Law in Science and Science in Law, in Collected Legal Papers 210, 225 (1920).

28 2 M. Howe, supra note 11, at 196-97.

29The Theory of Torts, supra note 19, at 658.

30 Book Notices, 5 Am. L. Rev. 536 (1870).

31 O.W. Holmes, supra note 7, at 124-26.

32Id. at 127.

33Id. at 89.

34Id. at 124.

35 Letter from Mrs. Henry James to Henry James, Jr., quoted in 1 R. Perry, The Thought and Character of William James 519 (1935).

36 Letter from Oliver Wendell Holmes to Charles W. Eliot (Nov. 1, 1881), quoted in 2 M. Howe, supra note 11, at 261.

37 Thayer, Memorandum (Dec. 22, 1882), quoted in 2 M. Howe, supra note 11, at 268.

38 Letter from Oliver Wendell Holmes to Felix Frankfurter (July 15, 1913), quoted in 2 M. Howe, supra note 11, 282.

39 Letter from Oliver Wendell Holmes to James Bryce (Dec. 31, 1882), quoted in 2 M. Howe, supra note 11, at 280.

40 Letter from Oliver Wendell Holmes to Harold Laski (Nov. 17, 1920), quoted in 2 M. Howe, supra note 11, at 281.

41 Letter from Oliver Wendell Holmes to James Bryce (Dec. 31, 1882), quoted in 2 M. Howe, supra note 11, at 280-81.

42 Letter from Oliver Wendell Holmes to Felix Frankfurter (July 15, 1913), quoted in 2 M. Howe, supra note 11, at 282.

43 Letter from Oliver Wendell Holmes to James Bryce (Dec. 31, 1882), quoted in 2 M. Howe, supra note 11, at 281.

44Id. at 280.

45Id.

46 Letter from Oliver Wendell Holmes to Harold Laski, (Feb. 1, 1919), quoted in 2 M. Howe, supra note 11, at 137.

47 Letter from Oliver Wendell Holmes to Harold Laski (Nov. 17, 1920), quoted in 2 M. Howe, supra note 11, at 281.

48 Letter from Oliver Wendell Holmes to Lady Clare Castletown (Mar. 5, 1897), quoted in 2 M. Howe, supra note 11, at 282.

49 Letter from Oliver Wendell Holmes to Felix Frankfurter (July 15, 1913), quoted in 2 M. Howe, supra note 11, at 282.

50 O. W. Holmes, Speech at Bar Dinner, in Occasional Speeches 122, 123 (M. Howe ed. 1962).

51Id.

52Id.

53The Theory of Torts, supra note 19.

54Id. at 654.

55 Even the term "random survey" may impart too much rigor. I have examined Holmes' torts opinions in three time periods from 1881 to 1902. Adjustments were made if the number of opinions in a given year seemed too low to be revealing. I was interested in the significance or insignificance of the case, as suggested by Holmes' opinion and subsequent treatment of the opinion, and in comparisons between Holmes' jurisprudential perspective in one time frame and another.

56 Holmes, Trespass and Negligence, 14 Am. L. Rev. 1 (1880).

57See T. COOLEY, A Treatise on The Law of Torts 628-58 (1880).

58See M. BIGELOW, The Law of Torts 106-16 (8th ed. 1907).

59See 1 J. WIGMORE Select Cases on The Law of Torts 7-8 (1912).

60See Smith, Tort and Absolute Liability—Suggested Changes in Classification, in Selected Essays on The Law of Torts 176, 189-90 (1924).

61See G. White, Tort Law in America 6-62 (1980).

62 May v. Wood, 172 Mass. 11, 14, 51 N.E. 191, 192 (1898) (Holmes, J., dissenting); Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 586, 40 N.E. 1039, 1042 (1895) (Holmes, J., dissenting); Hanson v. Globe Newspaper Co., 159 Mass. 293, 299, 34 N.E. 462, 464 (1893) (Holmes, J., dissenting).

63 McMahon v. O'Connor, 137 Mass. 216 (1884); McAvoy v. Wright, 137 Mass. 207 (1884).

64 Williams v. Churchill, 137 Mass. 243 (1884).

65 137 Mass. 392 (1884).

66Id. at 393.

67Id. at 394.

68 New Salem v. Eagle Mill Co., 138 Mass. 8 (1884); Purple v. Greenfield, 138 Mass. 1 (1884).

69 Hurley v. Fall River Daily Herald Pub. Co., 138 Mass. 334 (1885).

70 Mannville v. Worcester, 138 Mass. 89 (1884).

71 Learoyd v. Godfrey, 138 Mass. 315 (1885).

72 Burns v. Lane, 138 Mass. 350 (1885).

73 138 Mass. 14 (1885).

74Id. at 15.

75 The first case to extend a right of action for prenatal injuries was Verkennes v. Cornifa, 229 Minn. 365, 38 N.W.2d 838 (1949). Dietrich v. Northampton, 138 Mass. 14 (1884), was not limited until Keyes v. Construction Serv., Inc., 340 Mass. 633, 165 N.E.2d 912 (1960).

76 May v. Whittier Mach. Co., 154 Mass. 29, 27 N.E. 768 (1891).

77 Powers v. Boston, 154 Mass. 60, 27 N.E. 995 (1891).

78 Merrigan v. Boston & A. R.R., 154 Mass. 189, 28 N.E. 149 (1891).

79 Debbons v. Old Colony R.R., 154 Mass. 402, 28 N.E. 274 (1891).

80 Pomeroy v. Westfield, 154 Mass. 462, 28 N.E. 899 (1891).

81 Dillon v. Connecticut River R.R., 154 Mass. 478, 28 N.E. 899 (1891).

82 Wesson v. Washburn Car Wheel Co., 154 Mass. 514, 28 N.E. 679 (1891).

83 154 Mass. 238, 28 N.E. 1 (1891).

84Id. at 241, 28 N.E. at 3.

85Id. at 239, 28 N.E. at 2.

86Id. at 241, 28 N.E. at 3.

87Id. at 242, 28 N.E. at 4.

88Id. at 243, 28 N.E. at 4.

89Id. at 242, 28 N.E. at 4.

90Id. at 245, 28 N.E. at 5 (citations omitted).

91 Buckley v. New Bedford, 155 Mass. 64, 29 N.E. 201 (1891).

92 Walker v. Winstanley, 155 Mass. 301, 29 N.E. 518 (1892).

93 Pinney v. Hall, 156 Mass. 225, 226, 30 N.E. 1016 (1892).

94 Perry v. Smith, 156 Mass. 340, 31 N.E. 9 (1892).

95 Bourget v. Cambridge, 156 Mass. 391, 31 N.E. 390 (1892).

96 Letter from Oliver Wendell Holmes to Frederick Pollock (Dec. 1, 1899), in 1 Holmes-Pollock Letters 98 (M. Howe ed. 1941).

97 Walsh v. Loorem, 180 Mass. 18, 61 N.E. 222 (1901).

98 Cotter v. Lynn & B.R.R., 180 Mass. 145, 61 N.E. 818 (1901).

99 Vincent v. Norton & Taunton St. Ry., 180 Mass. 104, 61 N.E. 822 (1901).

100 McNary v. Blackburn, 180 Mass. 141, 61 N.E. 885 (1901).

101 Murray v. Boston Ice Co., 180 Mass. 165, 61 N.E. 1001 (1901).

102 Davis v. Rich, 180 Mass. 235, 62 N.E. 375 (1902).

103 Rutherford v. Paddock, 180 Mass. 289, 62 N.E. 381 (1902).

104 Homans v. Boston Elev. Ry., 180 Mass. 456, 62 N.E. 737 (1902).

105 Tirrell v. New York, N.H. & H.R.R., 180 Mass. 490, 62 N.E. 745 (1902).

106 Stoddard v. New York, N.H. & H.R.R., 181 Mass. 422, 63 N.E. 927 (1902).

107 180 Mass. 119, 61 N.E. 813 (1901).

108Id. at 120-21. 61 N.E. at 814.

109Id.

110See supra text accompanying notes, 50-61.

111 O. W. Holmes, supra note 50, at 123.

112See supra text accompanying notes 28-32.

113 O. W. Holmes, supra note 26, at 167.

114Id. at 172-73.

115Id. at 181.

116Id. at 84.

117 O. W. Holmes, supra note 27, at 210.

118Id. at 226.

119Id. at 231.

120 For the original passage from The Theory of Torts, see supra text accompanying note 54.

121 O. W. Holmes, supra note 27, at 232-33.

122Id. at 239.

123Id. at 242.

124Id. at 232.

125Id. at 238.

126Id. at 237-38.

127Id. at 237.

128 0. W. Holmes, supra note 26, at 198.

129See, e.g., Dewey, Justice Holmes and the Liberal Mind, 53 New Republic 210, 211 (1928); Frankfurter, The Constitutional Opinions of Judice Holmes, 29 Harv. L. Rev. 683, 691-94 (1916); Pound, Judge Holmes' Contributions to the Science of Law, 34 Harv. L. Rev. 449, 450 (1921).

130 Letter from Oliver Wendell Holmes to Frederick Pollock (Dec. 28, 1902), in 1 Holmes-Pollock Letters, supra note 96, at 109.

131 Letter from Oliver Wendell Holmes to Frederick Pollock (Dec. 11, 1909), in 1 Holmes-Pollock Letters, supra note 96, at 156.

132 For the reminiscences of one of Holmes' law clerks on these matters, see Derby, Recollections of Mr. Justice Holmes, 12 N.Y.U.L. REV. 345, 349-50 (1935).

133 Letter from Oliver Wendell Holmes to Lewis Einstein (Apr. 1, 1928), in Holmes-Enstein Letters 279 1964

134 ROGAT The Judge as Spectator, 31 U. Chi. L. Rev. 213, 244 (1964).

135 Truax v. Corrigan, 257 U.S. 312, 344 (1921) (Holmes, J., dissenting).

136See C. Bowen, Yankee From Olympus 259-61, 270-74 (1945). Bowen's account of Holmes's life is partially fictionalized and undocumented, so one cannot be sure the conversation ever took place.

137 O. W. Holmes, supra note 50, at 123-24.

138 O. W. Holmes, SR., 3 The Complete Writings of Oliver Wendell Holmes 142 (1900).

139 Letter from William James to Henry James (July 5, 1876), quoted in 1 R. Perry, supra note 35, at 371.

140 Thayer, supra note 37.

141See 1 M. Howe, supra note 11, at 8.

142Holmes-Cohen Correspondence, 9 J. Hist. Ideas 10 (1948).

143See White, supra note 3, at 56-61.

144 Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124 (1901).

145 Opinion of the Justices, 155 Mass. 598, 607, 30 N.E. 1142, 1146 (1892) (opinion of Holmes, J.).

146Id.

147 Adkins v. Children's Hosp., 261 U.S. 525, 568 (1923) (Holmes, J., dissenting) (overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); see G. White, The American Judicial Tradition 164-67 (1976).

148 Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).

149Id. at 75 (Holmes, J., dissenting).

150Id. at 76 (Holmes, J., dissenting).

151 198 U.S. 45 (1905).

152 208 U.S. 161 (1908).

153 261 U.S. 525 (1923) (overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)).

154 198 U.S. at 75 (Holmes, J., dissenting).

155See, e.g., Adkins, 261 U.S. at 568 (Holmes, J., dissenting).

156Lochner, 198 U.S. at 75 (Holmes, J., dissenting).

157Id. (Holmes, J., dissenting).

158Id. (Holmes, J., dissenting).

159Id. at 76 (Holmes, J., dissenting).

160 Patsone v. Pennsylvania, 232 U.S. 138 (1914).

161 Buck v. Bell, 274 U.S. 200 (1927).

162 Bartels v. Iowa, 262 U.S. 404, 412 (1923) (Holmes and Sutherland, JJ., dissenting).

163 Schenck v. United States, 249 U.S. 47, 52 (1919).

164Summary of Events, The Gas-Stokers ' Strike, 7 Am. L. Rev. 582, 583 (1873).

165Id.

166See, e.g., F. Frankfurter, Mr. Justice Holmes and The Supreme Court 36-45 (1938).

167 275 U.S. 66 (1927).

168 258 U.S. 268 (1922).

169 260 U.S. 393 (1922).

170 O. W. Holmes, supra note 7, at 128-29.

171Id. at 129.

172Id.

173Id.

174Id.

175Id. at 70.

176Id.

177 Pokora v. Wabash Ry., 292 U.S. 98, 106 (1934).

178See supra text accompanying notes 108-109.

179 258 U.S. at 276.

180 250 U.S. 616, 628-31 (Holmes, J., dissenting) (stating that defendant had right to publish leaflets supporting Russian revolution and attacking United States policy).

181 268 U.S. 652, 672-73 (1925) (Holmes and Brandeis, J J., dissenting) (stating that Socialist Party member should not have been convicted of criminal anarchy merely because he advocated a proletarian dictatorship).

182 274 U.S. 357, 379 (1927) (Brandeis and Holmes, J J., concurring) (overruled in Brandenburg, v. Ohio, 395 U.S. 444 (1969) (per curiam)) (stating that mere advocacy of the desirability of proletarian revolution is protected speech but intent to commit serious present crimes is not protected).

183 279 U.S. 644, 653-55 (1929) (Holmes, J., dissenting) (stating that a Quaker should not be denied United States citizenship because of her pacifist views).

184 283 U.S. 697 (1931) (Minnesota statute authorizing "previous restraints" of periodicals that publish defamatory or malicious articles held unconstitutional infringement of freedom of press).

185 273 U.S. 536 (1927).

186Id. at 541.

187 277 U.S. 438, 469 (1928) (Holmes, J., dissenting) (overruled in Katz v. United States, 389 U.S. 347 (1967)).

188Id. at 470 (Holmes, J., dissenting).

189 260 U.S. 393 (1922).

190Id. at 412-16.

191Id. at 415-16.

192 See, e.g., id.

193 For a recent collection of such efforts, see D. Burton, What Manner of Liberal? 155-56 (1979).

194 232 U.S. 138 (1914).

195 273 U.S. at 541.

196 260 U.S. at 416.

197 258 U.S. at 276.

198 Towne v. Eisner, 245 U.S. 418, 425 (1918).

199 Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).

200 Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).

201 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

202 Buck v. Bell, 274 U.S. 200, 207 (1927).

203 O. W. Holmes, supra note 26, at 181.

204See White, supra note 3, at 64-71.

205 For an example of one justice's agonized attempts to adopt Holmes' theory of deference to mid-twenth-century cases, see H. Hirsch, The Enigma of Felix Frankfurter (1981).

206 White, The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 Va. L. Rev. 279, 296-98 (1973).

207 410 U.S. 113 (1973).

208See supra note 161 and accompanying text.

209See supra note 114.

Illustration of PDF document

Download Oliver Wendell Holmes, Jr. Study Guide

Subscribe Now
Previous

Principal Works

Next

Further Reading