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    CrossFit 2014-10-10

    PR for Pat

    AMRAP 20 minutes

    • 6 power cleans [115#]
    • 12 burpees
    • 14 toes to bar
    • 200m run

    Rounds 3 + 28 reps


    CrossFit 2014-10-08



    • Front squats [95#]
    • Kettlebell swings [1.5 pood]
    • 400m run

    Time 17:07


    CrossFit 2014-10-06

    Overhead squat, snatch balance, squat snatch

    Overhead squat

    Snatch balance




    CrossFit 2014-10-03

    Scissor Kick

    5 rounds

    • 7 deadlifts [185#]
    • 30 air squats
    • Handstand pushups [rack assisted]

    Time 11:42



    CrossFit 2014-10-01

    Bench and Burn

    Bench press


    3 rounds

    • Row 250m
    • 25 kettlebell swings [1 pood]
    • Row 250m
    • Rest 1 minute

    Armed Response Book Review

    I got this book by mistake, but I ended up keeping it. Not a bad read on firearms and self-defense.

    Armed Response:A Comprehensive Guide to Using Firearms for Self-Defense

    By David Kenik
    Merril Press 2005
    180 Pages; US$19.95
    ISBN 9780936783451

    I ended up with the book by an Amazon accident. I had ordered the Ayoob files, a collection of columns written by Massad Ayoob, a frequent expert witness in self-defense cases. Ayoob contributed an introduction to this volume, which is possibly the reason I ended up with this book. I received this book several years ago, and I decided to just keep it. I did not actually read it until 2009, and I found the book very good. I should have read it earlier.

    Armed Response is a sober, practical book that has lots of good things to think about for anyone who owns firearms. Lots of details about the workings of the law, how to properly use a firearm, and helpful suggestions. I wish I had read this book when I was actually a beginner, because the author explains a lot of common terms used by firearm owners that were mystifying to me once. I spent a number of years tracking down answers to questions that are contained in this book. That reinforces the anwers I found, and makes me willing to recommend this book, because it matches my own experience and knowledge.

    You can find information about different kinds of firearms, their pros and cons. Different holsters, different ammunition, different stances. There are even suggestions for training. One would do well to heed the many warnings contained in this book. This book is intended to help keep you out of trouble of any kind. The best way to win a gunfight is not to be in one.

    Lots of good references, the websites and addresses of quality accesories manufacturers, and lots and lots of experience can be found in this book. Highly recommended. Just remember, IANAL.  YANMC.  TINLA.
    I am not a lawyer, you are not my client, this is not legal advice, if you want legal advice then hire yourself a lawyer. (Thanks Tom)

    My other book reviews


    Beat the Reaper Book Review

    Another book review that disappeared. I really love the tagline for this review: "Like Scrubs on crack."

    Beat the Reaper
    by Josh Bazell
    Little, Brown, and Company, 2009
    ISBN 0316032220; $9.99

    Every time I look at this book, I think of the song by Blue Öyster Cult, "The Reaper". This really has nothing to do with the book, but I think it nonetheless. I'm not normally a fan of mafia books, for the reason that mafiosi are so evil that reading about them depresses me. I did like this book, but I was always struggling against the horror that any semi-realistic portrayal of gangster life elicts.

    My favorite part of the book is the random medical facts scattered throughout the book, either in the body or in cute little footnotes. Lest anyone think that the medical mayhem of Manhattan Catholic is entirely fictional, I was recounting to my Mother the episode near the beginning of the book where Dr. Peter Brown comes in for rounds and discovers one of this patients is dead, despite the notation on the chart that claims the patient's temperature is 98.6º with blood pressure 120/80 mmHg. My Mom blurted out, "ooh, that happened to me!" My Mother has a great deal of experience as a nurse, and this exact incident happened to her, with the change that it was the aide who did it to the nurse instead of the nurse to the doctor.

    I have worked in hospitals myself, and currently am a designer of medical devices, so everything about Manhattan Catholic rang true, even though that much misery is not usually concentrated in one place. I can indeed confirm the typical surgeon's potty mouth. I've never heard such astounding things as you can hear in an operating room. I also appreciate Dr. Brown's gallows humor. When you work with death, you need something to help you stay sane. You can't go and cry in your beer every time something goes wrong. The most common method is black humor to provide emotional distance. Less common is sanctification, as practiced by chaplains and religious. I never hear gallows humor out of Sr. Elizabeth. Of course, maybe she just isn't sharing.

    The denoument of the book reminded of the Hitman series by Eidos. Anyone who has played through Hitman: Blood Money will find some similarities. Not huge ones, just reminiscent. The ending was imaginative. Perhaps I should say, strains credulity, but I'm not sure I could do it better. The medical facts do at least make it possible, if not plausible. If you enjoy gangster books, go for this one. If you want to know what hospitals are really like, read this too. No hospital is this bad, but they definitely share a family resemblance. This book is like Scrubs on crack.

    My other book reviews


    The Long View 2002-06-02: The Menace in South Asia

    NagasakiEven now that the Cold War is long past, most Westerners feel horror and shame at the thought of nuclear war. This is understandable, but the possibility of mutual assured destruction, and the intensive cultural revulsion that possibility engenders in us, are the products of a particular time, place, and set of assumptions.

    It took a great deal of time and effort to demonize all things nuclear. Immediately after the Second World War, there intense optimism about harnessing atomic power for the good of mankind. For example, there was Operation Plowshare, which sought a way to turn the crude destructive power of the atom bomb to more mundane purposes, much the same way TNT and other explosives became a tool of the construction and mining industries. The attitudes of 1950s America toward the power of the atom seem blithe to us now, but this is the direct result of a campaign to convince us of the utter horror and unwinnability of a nuclear war.

    There was a losing side of that campaign, for which I feel some sympathy. While they lost the war of public opinion, they definitely won the actual Cold War. After the 9/11 attacks, Paul Krugman suggested creating an office of evil to help the government imagine horrible things so we would not be surprised so badly next time. This role was filled for a long time by men like Edward Teller and Herman Kahn, who were perfectly happy to think the unthinkable in order to better prepare for it. A later entry in the field was the Strategy of Technology by Possony, Pournelle, and Kane. They argued that a decisive advantage in war could be gained by the targeted pursuit of specific technologies, particularly in the Cold War, which was already a technological contest.

    Arguably, this was in fact the strategy that impoverished the Soviet Union to a degree where the dissent of client states like East Germany and Poland could fatally destabilize it. However, at present, the men who brought this about are likely to be remembered for nuclear brinkmanship and warmongering rather than successfully preventing the Cold War from turning into a hot one, and achieving victory as well.

    What is perhaps even less well appreciated is how different the world is now from the peak of the Cold War. The US and Russia still have a lot of nuclear weapons, but the real worry these days is that some unpleasant little excuse for a country like North Korea or Pakistan will start something nuclear. It would be bad if they did, but to see MAD as the result is a failure of the imagination, or perhaps a success of propaganda. Look at the picture that heads this post, and imagine for yourself, "this is one of only two cities ever destroyed by nuclear weapons." And then try to believe your lying eyes.

    The Menace in South Asia


    There are three important points about the current confrontation between India and Pakistan. The first two are commonplaces. The third has not been addressed by policy makers, at least in public.

    First, it is not likely that the fighting between the two countries will go beyond border skirmishes. This is not a situation like 1914 in Europe, when strategic plans had to be carried out like clockwork if they were to be carried out at all. Furthermore, the situations of the parties are not symmetrical. While Pakistan is perhaps most to blame because of its acquiescence in the use of its territory by militants, India would be the actual aggressor in a war. That country's friends and well wishers have let the Indian government know that a war would delay India's accession to the ranks of the great powers.

    Second, even if a serious invasion of Pakistan does occur, it is unlikely that the conflict will go nuclear. On the nuclear level, Pakistan would have to be the aggressor. It is hard to see what Pakistan could gain from that step. The use of tactical nuclear weapons to halt an Indian invasion could cause the Indians to escalate their goals from border security to the destruction of the Pakistani state. In any case, India will always be in a position to declare victory and withdraw. There is no necessary ladder of escalation.

    Third, if there is a war and it does go nuclear, India is going to win decisively. Its traditional enemy will be dismembered and the fragments disarmed. The civilian casualties India would suffer, even in the worst-case scenarios, would be proportionately less than those suffered by Great Britain in the Blitz. The moral that the world would draw from a South Asian nuclear war is that nuclear wars are fightable and winnable.

    The Cold War between the United States and the Soviet Union occasioned the creation, not just of new weapons systems, but of new disciplines in logic and political science. Those disciplines applied only in a historically unique situation of overwhelming firepower and comparably high levels of technical competence. Nuclear weapons began, however, as an incremental augmentation to the tactics of area bombing. A substantial amount of time passed before the Cold War competitors had the nuclear devices and the delivery systems that could threaten the existence of each other's societies. India and Pakistan are far from crossing that threshold.

    Several countries around the world aspire to just the situation in South Asia, where the use of nuclear weapons is a rational option. An Indian victory would have obvious policy implications for Iran, Taiwan, the Koreas and even Japan.

    Just yesterday, President George Bush made a speech at West Point in which he declared that deterrence is not enough. He is right, but few people have remarked on the scope of the police project he is proposing. Let us take a deep breath as we prepare to jump in.

    Why post old articles?

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    All of John's posts here

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    The Long View: Justice Oliver Wendell Holmes: Law and the Inner Self Book Review

    The Long LifetimeAnd for the final member of the trimumvirate of the American century, Justice Oliver Wendell Holmes, Jr.

    The short-hand John used for Holmes and the times he lived through was "The Long Lifetime". Holmes was born just before the American Civil War, and lived to see the Great War. Most of the decisive events in modernity occurred during his lifetime, and he caused at least a couple of them personally.

    Holmes is known best for his oracular opinions from the bench, but he is also one of the foremost scholars of American law. Holmes set Constitutional Law on the course it still follows, although in practice that course has come to subvert what Holmes was trying to do.

    The common law and the natural law had become an abomination in Holmes' time. They were used to justify the exploitation of workers and the destruction of the environment in the name of contract and property rights with which the legislature could not interfere. Holmes great mission in life was to find a rational and defensible legal philosophy that could correct these abuses.

    He did precisely that, formulating a doctrine of legal pragmatism that holds great influence. The law is the embodiment of the will of the sovereign, which in the United States of his time was the People through the mechanism of the Legislature. There is no eternal truth to be found in the law, only the felt need of the moment.  However, it was also a doctrine of legal positivism, that held that that anything not specifically forbidden by the Constitution was permissible to the Legislature. The "discovery" of a right was wholly alien to the law as Holmes saw it. The text of the Constitution mattered very much to him. In a sense, both the current Left and Right in American law are descendants of Holmes.

    With Teddy Roosevelt, who nominated him to the bench, and with Woodrow Wilson, whose policies he helped implement, Justice Holmes fixed us on the path upon which we find ourselves. Everything since has been the working out of the implications of what those men wrought.

    Justice Oliver Wendell Holmes: Law and the Inner Self
    by G. Edward White
    Oxford University Press, 1993
    $18.95, 628 pp.
    ISBN: 0-19-510128-6

    Justice Faustus


    Future historians may well decide that the decisive years in the life of Western civilization were the period from around 1860 to 1945. In retrospect, for instance, the string of great wars from the American Civil War through the end of World War II seems almost like a logical progression, one that may have settled permanently the geopolitical structure of the West. Perhaps more important, those were the years when the dreams of the Enlightenment achieved tangible form. Democracy became a universally accepted principle, as did wholly secular models of human history and of the natural world. ("The Origin of Species" was published in 1859.) Some of these concrete forms were a little disconcerting, of course. Socialism, a logical development of Rousseau's General Will, in practice came to mean the sort of command economy created by Germany and Great Britain to fight World War I, and which Lenin simply made permanent. The year 1945 was no more the end of history than was 1989. However, far more than the latter date, that year marks the point by which certain choices had been made. The molten possibilities of the Enlightenment had become frozen in forms that would be definitive of the future. Everything that has happened since, perhaps, has been just the working out of the implications of those forms.

    The decisive choices thus were made during what amounts to a single, long lifetime. Oliver Wendell Holmes's long adult life almost matched it. In the field of American jurisprudence, many of the final forms are his. He, perhaps more than anyone else, broke American legal thinking of its natural law habits and enshrined positivism as the only respectable philosophy of law. He quite literally wrote the book on legal pragmatism. He provided the theoretical framework that made it possible for the federal government to create the kind of "soft" command economy typical of twentieth century states. He made it possible for labor unions to carry out class war in the courts rather than in the streets. He turned the First Amendment's freedom of the press clause from a dead letter to a premise of American culture. Also, he was never what he seemed.

    I picked up this book with some trepidation because the subtitle, "Law and the Inner Self," suggested that I might be in for another long, tendentious psychobiography. The fear was misplaced. This is a lawyer's book, written by a legal historian at the University of Virginia. (Among other accolades, it won the America Bar Association's "Silver Gavel Award.") The biography is primarily concerned with the subject's ideas, not his supposed mental problems. With the one exception we will get to in a moment, the biographical material is well integrated into this story. Particularly enlightening is the discussion of the probable effect which the young, admiring Progressives associated with the magazine, "The New Republic," had on Holmes's views regarding freedom of speech issues. Malicious persons have sometimes suggested that the mark of a legal mind is the ability to see distinctions that aren't there, and sometimes it seemed to this reviewer that White was finding contradictions in Holmes's court opinions that could have been resolved by a slightly less suspicious reading. Well, these are the '90s, after all, so a bit of deconstruction is only to be expected. Still, the book provides a panoramic window into one of the great transformations in the history of jurisprudence.

    Born in 1841, Holmes was the contemporary and friend of Henry Adams, William and Henry James, and other post-Transcendental New England luminaries he was destined to outlive by a decade or more. He was the son of a famous Boston Brahmin, Dr. Oliver Wendell Holmes, Sr., who abandoned medical practice for a successful career as a lecturer and essayist. (Among other accomplishments, he coined the term, "anaesthesia.") Holmes the younger served with distinction in the Civil War. There may have been other junior Union officers who fought in the Seven Days Peninsular Campaign, at Antietam, and (in a skirmish) near Chancellorsville and lived to tell about it. Still, this particular long-boned Yankee seems to have been singularly indestructible. After his third wound, he took the hint and applied for a staff job. This did not get him wholly out of harm's way; the narrative in this book suggests that the only time he was brave to any purpose in the course of the war was when he outrode a Confederate patrol while carrying a staff message. However, the transfer did at least preserve him from leading an infantry platoon during the Battle of the Wilderness. This, and the fact that he did not reenlist when his three year enlistment ended in the summer of 1864, leads White to speculate at length that Holmes suffered from "survivor guilt" for the rest of life. Maybe he did. However, if so, it was one of those insidious syndromes whose chief symptom was the total suppression of any direct evidence for it in the subject's later life.

    In any event, Holmes survived to become a prominent member of the Massachusetts bar and, on his numerous vacation trips to Europe, a notable ornament of London society. (Predictably, the young Henry Adams at the American legation helped to orchestrate the introductions). White is cautiously agnostic about Holmes's private life, though we are treated to quite a lot of flirtatious correspondence, particularly with one Lady Castledown, a member of the Irish "Ascendancy." Homes married Fanny Bowditch Dixwell in 1872, apparently happily for both parties. She was a somewhat reclusive woman who declined to accompany Holmes on all but one or two of his European excursions. They never had children, a fact that probably requires no explanation beyond the fact they married in their early thirties and Fanny suffered from bouts of scarlet fever. Holmes was, as we will see, a great believer in eugenics and family planning, but he was unlikely to have been of the opinion that his were among the bloodlines that needed to be discontinued.

    There are two traditional ways for an ambitious legal practitioner to make a name for himself: politics and scholarship. Holmes, who was very ambitious indeed, embraced the latter with fierce determination. In 1881 Holmes published "The Common Law," based on the Lowell Lectures he had delivered the year before. Though more praised than read, the book is unique in being simultaneously a history of the common law of England and America, a theory of why it had evolved as it had, and a philosophy of what law is. The next year he joined the Harvard law faculty, a special endowment having been created to support his professorship. To the delight of Harvard-haters for all time, he decided in the course of an afternoon in late 1882 to abandon Harvard in order to accept the unexpected offer of an appointment as an associate justice to the Supreme Judicial Court of Massachusetts. His Harvard colleagues found out about his decision from the newspapers. He served on that court for 20 years, rising eventually to be Chief Justice. He turned out short, compelling, but sometimes rather Delphic opinions on the nut-and-bolts questions that take up most of any court's time.

    President Theodore Roosevelt, apparently mislead by the militaristic rhetoric of Holmes's extra-judicial statements into believing Holmes to be a congenial jingo, appointed him to be an associate justice on the United States Supreme Court in 1902. Always hardworking and never a difficult colleague, he was a respected but slightly obscure figure until the 1920s, when he became the darling of Progressives, civil libertarians and the labor movement. In his 80s, he became a national figure for the first time. Then and for decades afterward, he was the "Yankee from Olympus," the "great dissenter," even "..the greatest legal intellect in the history of the English-speaking world," in the opinion of his Supreme Court successor, Benjamin Cardozo. With his brilliant epigrammatic prose style and fearsome moustaches, he joined Mark Twain and Benjamin Franklin as an archetypical American.

    Though he looked like God and seemed nearly old enough for the job, he was not actually immortal. His work on the court began to fall off in his last judicial term or two, perhaps because of a slight stroke. He was prevailed upon to retire early in 1932, though he remained perfectly lucid for most purposes until his death in 1935 after a brief illness. Fanny, his wife of 57 years, had died in 1929. He often seemed lonely in the final years, though throughout the period he was continually attended by a parade of the Great and the Good from Harvard and Washington, including FDR himself. He was also attended by a law clerk, a young Harvard law graduate, even after he had ceased to serve on the court. The hiring of Supreme Court law clerks, usually law school graduates eager for this most prestigious of post-graduate work, was another of his innovations.

    If the legal systems of Europe based on Roman law are like the French language, all codified by some Academy and with, in principle, a right answer to every stylistic question, the common law of England grew up rather like the English language. Some authorities were more prestigious than others and there were general points on which everyone could agree, but the common law, like the language of the people who lived under it, allowed for numerous decision-makers and incremental innovations, which might survive in practice or be rejected. Judges made the common law, basing their opinions on the opinions of other judges, citing principles so ancient that the memory of man ran not to the contrary. Even today, when most important areas of law have been summarized in civil and criminal codes, still the codes usually just adopt one or another set of common law rules. And when judges in common law countries interpret those statutes, they look first to the opinions of other judges rather than at the text itself.

    For judges in England and the United States before the middle of the last century, the idea that the same "common law" still somehow applied in both countries, and indeed in every state of the American union individually, did not pose a conceptual problem. When the American colonies removed themselves from the jurisdiction of the British Parliament, it never occurred to them that they might be removing themselves from the sway of the common law. Parliament had not made the common law, though of course it had influenced the common law's development throughout history. The common law was never thought to be coincident with the natural law, but the English jurists tended to assume that it had been informed by the natural law. Judges, guided by right reason, could develop existing common law rules to better conform to the natural law. This was how the judge Lord Mansfield finally abolished slavery in England in the late eighteenth century (in the 1830s parliament got around to outlawing it in the colonies). The judges who did this sort of thing said they were not making law, but discovering it. The common law was complicated and often obscure, it rules sometimes manifestly unjust. However, lawyers trained in the common law tradition seemed to always have at the back of their minds the assumption that the common law was the real law. What parliaments and legislatures might decree from time to time would of course be obeyed, but the statutory law that tried to change common law was strictly and suspiciously construed.

    When Holmes was a young man, there was no lack of philosophers of jurisprudence, such as Austin and Bentham, who dedicated their careers to fighting the concept of natural law. They looked on law as simply the command of the sovereign, or of judges representing the sovereign, or of the judges themselves. This approach to the law is known as legal positivism. It arose because the very idea of natural law was becoming incomprehensible to men who lived after Hume and Kant. Natural law, after all, is supposed to be "deontological," that is, somehow derivable from the nature of things. Those philosophers, however, had proven to their own satisfaction that you could not know about the "nature," the essence, of anything. All you could know was how things acted. There are two ways to take this proposition. You could, like the early German Idealists and like the New England Transcendentalists, draw the lesson that, since your knowledge of "how things acted" was simply a matter of sense perception, then all that really existed (as far as you can tell) is the perceptions in your own mind. Alternatively, you might forget about the mind entirely and just concentrate on how things (including people) act. The result is behaviorism.

    Holmes himself is an example of a man who started as an Emersonian Idealist and followed the natural trajectory of this school into behaviorism. The halfway house on the journey is the philosophy of pragmatism, and Holmes was there at the creation. After the Civil War, he was a member of the Metaphysical Club, which included both William James and Charles Peirce, the latter usually regarded as the father of pragmatism. In essence, pragmatism is just another form of idealism. A "problem," in the pragmatist scheme of things, is simply the perception of some incongruity. If you arrange matters so that you no longer have this perception, then the problem is solved. If the new arrangement does not conform to your rules of logic, then there is something wrong with your rules. The direct effect of Peirce on Holmes has been much debated, and some writers have probably exaggerated it. Still, the philosophy of "The Common Law" is pragmatic in the strict sense.

    In the first few lines of the book, Holmes lays down the principle that "[t]he life of the law has not been logic: it has been experience." The common law is not a fixed body of doctrines and the syllogisms derived from them, but an organic structure that has grown up in response to "the felt necessities of the time." The way to evaluate a law, in other words, is to measure the degree of subjective satisfaction it gives the community. By the time of his essay "The Path of the Law," published in 1885, he had completed the evolution to a behaviorist theory of law. Whatever you may think of Holmes's jurisprudence, "The Path of the Law" is an unambiguously great exercise in legal philosophy; certainly it withstands the test of time much better than "The Common Law." Laws should be written, we learn, from the standpoint of "the bad man," he who will do the absolute minimum necessary to avoid the sanctions of his neighbors. In other words, it must create objective standards, that do not depend on the personal virtue or goodwill of the citizens. When the law seeks to determine the "intent" of someone who committed an act for which he is on trial, it is not seeking to determine whether he meant to do good or harm. The law seeks to know only whether he knew what the results of his action would be. The inquiry can be made only by considering the defendant's observable behavior.

    Holmes had a flare for dramatic expression, but his even his most extravagant pronouncements usually had a deal of common sense behind them. In the area of contract law, for instance, behaviorist jurisprudence meant that you did not have to guess whether there had been a "meeting of minds" between the parties to a contract: all you needed to do was determine what they said they had agreed to. If they never said the same thing, then there was no contract. Holmes sought not just to make the law predictable, but its burden light. In the law of torts, he used every opportunity to limit the liability of defendants. To some extent, this was because he believed limited liability was one of the "felt necessities of the time." Businesses could not grow if their every action threatened to incur a law suit. More important, perhaps, was the fact that his legal philosophy left no possible source of duty from one person to another except rules of behavior enunciated by the state. Thus, if the state did not create a cause of civil action, then normally the courts should not supply one.

    In 1917, Holmes gave memorable expression to modern legal positivism in his Supreme Court dissent to the majority opinion in Southern Pacific v. Jensen, which held that a seaman injured in port should not receive the benefit of New York State's workman's compensation law. The general principles of maritime law did not allow for a seaman to receive compensation under the circumstances, and the majority believed that this principle should govern, rather than the statute. Holmes thought otherwise: "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified." Derision for that "brooding omnipresence" has proven irresistible to American law professors ever since, but like most forms of skepticism, this thesis turns out to be incoherent if you look at it closely. To say that law is "the command of the sovereign" is tautological, since a sovereign is a legal entity. Moreover, it is an extremely awkward way to look at legal systems, such as those of the United States, where the actual sovereign tells you to go ask a judge or somebody if you want to know what the law is. On the other hand, the idea of an autonomous system of rules that can create order spontaneously, which is what the common law is supposed to be, is actually quite reminiscent of most schools of the philosophy of mathematics in the twentieth century. Many mathematicians, indeed almost all the great ones, believe that they "discover" mathematical entities, not that they make them up. No woolly-pated judge at a shire assize could have quarreled with the principle.

    It is wrong to think of legal positivism as growing from a desire to cut off the law from the transcendent, or for that matter as part of a plot to make the world safe for industrial capitalism. The common law jurisprudence in the America of Holmes's early career had arguably become a force of darkness that all right-thing people were holden to combat. Many people at the time hoped to turn law into a "science," in the sense of a coherent system of statements. However, such people, notably Christopher Langdell of Harvard Law School, seemed to think that the common law was wholly self-referential. The "formalist" period of American law that resulted from this philosophy was not pretty. Judicial decision-making became more and more a mechanical process of finding precedents and applying them, whether or not the result made sense in the context of modern industrial conditions. "Natural law" made its appearance most conspicuously in the discovery by the courts of wide-ranging "rights" to contract and to property. Under this logic, legislatures were found to lack the power to interfere with the right of employers and laborers to bargain for what wages and hours they chose, or for municipalities to interfere with the right of manufacturers to perform whatever industrial processes on their land that the manufacturers saw fit. This view was eventually adopted by the U.S. Supreme Court, by way of the Due Process clause of the Fourteenth Amendment. This constitutional doctrine became known as "substantive due process." As many commentators have noted, it bears more than a little resemblance to the philosophy of "reproductive rights" that the court began to discover in the Constitution beginning in the 1960s, beginning with Griswold v. Connecticut. Holmes fought against this approach throughout his career. It was only after his retirement, when the court was threatened with the effective loss of the power of judicial review if it kept blocking FDR's New Deal legislation, that his point of view prevailed.

    Holmes was an honest Social Darwinist. He believed that class war was a fact of life, just as was war between nations. He also thought that unions and labor legislation did nothing to improve the common good. As he remarked in his dissent in Plant v. Wood while he was still a Massachusetts judge: "The annual product, subject to an infinitesimal deduction for the luxuries of the few, is directed to consumption by the multitude, always. Organization and strikes may get a larger share for the member of the organization, but if they do, they get it at the expense of the less organized and less powerful portion of the laboring mass." One will find few purer expressions of Malthusian economics in American law. However, he dissented in that case because he found no reason the union in question should not organize a boycott, which the plaintiff was trying to stop. No statute forbade a boycott, and the common law was ambiguous. In such a situation, the role of the courts was simply to guarantee a fair fight. When the state itself sought to intervene in labor relations, of course, he heard his sovereign's voice and hurried to obey.

    One of Holmes's most famous opinions is his dissent in Lockner v. New York, decided in 1905, in which the Supreme Court struck down a maximum hours law for bakers. The court based its decision on a "liberty of contract" of their own manufacture. There is, of course, a provision in the U.S. Constitution, Article I, Section 10, forbidding the states to pass laws that "impair contracts," but any fair reading of the history of that provision will show that the Founders were mostly concerned about states cancelling the debts of farmers during bad years. (Even that provision has been loosely interpreted to allow for debt moratoria.) In any event, Holmes was having none of it: "...the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," he harrumpfed magisterially. (Holmes's Mathusianism, incidentally, came by way of Spencer; he got around to reading Malthus himself about ten years after Lockner.) In Holmes's scheme of things, if there was no constitutional provision forbidding the government to do something, then the people, through their elected representatives, could do pretty much any damn fool thing they pleased.

    Thus, if the people pleased to require the sterilization of unsatisfactory persons, Holmes saw no reason to object. Certainly the Constitution had nothing to say about it. Indeed, eugenics was the only one of the Progressive Era reforms that positively engaged his enthusiasm. He does not seem to have had any more than usual of the racial prejudices common to his place and time; probably he had rather less. It may be, as White suggests, that his interest in eugenics did not arise from a fear of drowning in the rising tide of the colored races. Rather, he had a lively sense that human nature itself was flawed. Under the circumstances, the best that the law could do was referee a fair Darwinian fight. If the fight were ever to end, it would have to be because the nature of the combatants had improved.

    Be this as it may, it is at least clear that Holmes's views on the powers of government in this area require no special explanation; they are perfectly consistent with his views on the powers of government in the economic sphere. His opinion in the 1927 case, Buck v. Bell, upheld a Virginia statute that was being used to sterilize a woman who may or may not have been retarded, after a hearing process that looked exemplary on paper but which in practice was apparently rather summary. The opinion is classic Holmes. He uses the argument that "the greater power includes the lesser," always one of his favorites. Since the woman could have been drafted and sent into combat, he reasons, surely the state may require the lesser sacrifice of sterility. The epigrams are memorable. "Three generations of imbeciles are enough," he says about the plaintiff's inaccurately recounted family history. "The Bill of Rights is not a suicide pact," he affirms, to the plaudits of all progressive people everywhere. The truly infuriating thing about the opinion is that it is probably right. The Constitution does not guarantee reproductive rights, it does not forbid either sterilization or abortion. The Founding Fathers did not feel it necessary to address such matters. They thought better of their descendants than to suppose it might be necessary.

    The only area in which Holmes was at all inclined to limit the power of the state was in questions of freedom of speech and the press. This willingness earned him his reputation as a civil libertarian. He would not always have merited the label. In the rare instances when he had to address the matter as a state judge, he held to the conventional view that the only real free speech rights were those provided under common law. This meant that the courts could not exercise "prior restraint," that is, to forbid someone from speaking or publishing. However, once you had your say, you could be fined or imprisoned for saying things that were inconvenient or unpopular, even if they were true. The venerable offense of "criminal libel" excited no animus in the middle-aged Holmes. Once on the U.S. Supreme Court, he at first saw little reason to change his mind. For one thing, the Court did not quite make up its mind until the end of his second decade as a justice whether the First Amendment, which by its terms applies only to the federal government, had been "incorporated" by the Fourteenth Amendment so as to apply to the states. Even when it was thought to apply, it was assumed to be simply declaratory of the very limited protections afforded by the common law.

    Professor White, as I noted, lays out the history of Holmes's friendships with Felix Frankfurter and Harold Laski and the rest of The New Republic crowd to show how their ideas influenced Holmes around the time of the First World War and after. Certainly Holmes was disturbed by broad new laws forbidding speech that tended to "interfere with recruiting" or that advocated the overthrow of the government at some indefinite point in the future, or that otherwise hinted you might be up to no good. He began to grope for a principle that would be consistent with the rest of his ideas about the power of government. His first solution was the "clear and present danger" test. He tried, without much luck, to get the Supreme Court to agree that you could say or print pretty much anything you wanted that did not seem likely to start a riot. This, of course, is really just a rule about evidence, it is not a definition of a personal right that an individual could assert against a hostile government. What he picked up from his young friends was the notion of "the marketplace of ideas" as something necessary for the conduct of a democracy. The courts had to make sure that even bad ideas got a hearing, because otherwise there was no way to be sure good ideas might not be suppressed by accident. The First Amendment was thus not a dead letter after all, but a clear textual restriction on the power of government.

    Professor White finds that this defense of freedom of speech was contradictory, an anomaly in Holmes's positivistic universe. He points out that Holmes's theory of government was that the majority in society will always work its will eventually, yet here was Holmes creating a "fundamental principle of democracy" that was rigidly anti-majoritarian. This assessment, I think, fails to appreciate the true underlying unity of Holmes's thought throughout his career. The justice's late championship of unfettered expression was not a break with his ancient pragmatism. Rather, it was its final flower, the highest good to which the intersubjective mind can attain. Fundamentally the marketplace argument is not new: a version of it was Milton's thesis in favor of free speech in the "Areopagitica." However, for Holmes, who lived in a post-metaphysical intellectual environment, the notion could take on a whole new significance. The marketplace of ideas was as close as Holmes's philosophy would let him come to the idea of truth. As a pragmatist, he had rejected the idea of absolute truth, but he also venerated the search for it. The best he could hope for was a free exchange of ideas, what Richard Rorty would later call "conversation." The transcendent was inaccessible, perhaps, but it could be approximated in this world by a perpetual dynamic stability.

    Readers of Goethe's "Faust" will recognize that these were the very terms on which Faust was damned. The devil had agreed that he would not carry Faust to Hell until Faust found something in which his heart could rest, some moment to which he could say, "stay, you are so fair." At the end of his restless career of ever-growing power and knowledge, Faust finally conceives of a world he could love. It is world of perpetual struggle, in which mankind and nature achieve a kind of stability through their unceasing efforts to overcome each other. It is an eternal conversation of antagonistic forces, a marketplace of will that never closes. When Faust embraced this vision, the devil's bill came due. He had no reason to complain. The clarity of their contract was all that any judge might have wished.


    This article originally appeared in the January 1996 issue of Culture Wars magazine. Please click on the following line for more information:

    Copyright © 1996 by John J. Reilly

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    The Long View: T. R.: The Last Romantic Book Review

    Now for the other half of the beginning of the twentieth century, here is Teddy.

    Theodore Roosevelt redefined the American presidency through sheer force of will. The office of President was at a nadir in the decades following the Civil War, and the Congress was pre-eminent. Roosevelt was placed on the ticket as vice-President in order to get him out of the way. He never really saw eye-to-eye with the Republican party bosses, but his massive popularity was difficult to ignore. Vice-President was a convenient dead-end in which to place him, until an assassin's bullet propelled him into the Oval Office.

    Once there, Teddy did all sorts of outrageous things, often not stopping to inquire whether it was actually within the purview of the Executive Branch to do what he did. And he got away with it.  All that is well known. John is a fan of T. R., as am I, and I am more interested in the less well-known aspects of this fascinating man. Despite his famous belligerency, Roosevelt was a gifted negotiator. He won the Nobel Peace Prize for the deal that ended the Russo-Japanese War, but he also ended the guerrilla war in the Phillipines [although not the Moro Rebellion] and convinced the Kaiser to settle his debts with Latin America instead of sending battleships to collect them.

    Roosevelt was perhaps one of the best read Presidents. He read two to three books a day. When given a book by a guest in the morning, he could discuss the book in detail at dinner. He attempted to reform English spelling by Executive Order, which is perhaps one of the few things in his Presidency that backfired so badly.

    I'm currently working my way through Edmund Morris' magisterial trilogy on T. R., and I also watched a bit of the recent PBS series The Roosevelts, but I skipped the parts about Franklin. I am simply in a Theodore Roosevelt mood, but that is never a bad thing.

    T.R.: The Last Romantic
    by H. W. Brands
    Basic Books, 1997
    897 pages, $35.00
    ISBN: 0-465-06958-4

    Large Policy

    You don't need an excuse to read about Theodore Roosevelt. Still the youngest president (he was just shy of 43 years old when William McKinley's assassination catapulted him from vice-presidential obscurity), he was probably the most knowledgeable person ever to hold that office, even counting Thomas Jefferson. He was certainly the most colorful. In fact, his volcanic stint in office from 1901 to 1909 was a comparatively drab interlude in his life. If he had not existed, G. K. Chesterton would have had to make him up. It would take an awfully bad biographer to write a tedious life of this man, but this single-volume work by H. W. Brand (who teaches history at Texas A&M) is both solid history and a delight to read. The only problem is that, at almost 900 pages, the book is too short.

    Nevertheless, the study of Theodore Roosevelt's administration has become not just entertaining but topical. Historical parallels are always tricky, but many people (including President Clinton) have taken to comparing the present era to the Progressive Era of the first two decades of the 20th century. When Roosevelt took office, the federal government was just coming out of the coma it entered after the Civil War of 1861-65. In the interim, the country had been covered with huge new industries that the law simply did not address. Neither Europe nor Asia were as far away as they had been a few decades before, and for the first time in its history the United States found that it needed a strategic doctrine. At the same time, international capital flows were becoming large enough to affect even the largest economies, while immigration (in those days from eastern and southern Europe) was threatening to change the character of the country. Meanwhile, business and labor united in the demand that tariff policy keep the growing American domestic market all to themselves. Roosevelt proposed to deal with this new environment through what he called "large policy." In the cramped intellectual universe of the post-Cold War, post-federal deficit era, it is not unreasonable that people have started to look to Roosevelt for a more expansive view of government.

    So who was this Roosevelt character? He was born in 1858 to a rich family of stolid Dutchmen that had lived in Manhattan since it was Nieuw Amsterdam. As the whole world knows, he was a scrawny specimen with a life-threatening case of asthma, so he adopted a lifelong program of indoor and outdoor exercise. (He died at 60, battered and half-blind: there is such a thing as overdoing it.) Roosevelt never went to a conventional school until he entered Harvard, but by then he spoke the major modern languages and was already on the way to becoming a serious naturalist. He hunted big game in Africa and the Americas, often at the expense of institutions for which he supplied specimens. His chief regular source of income was a stream of purple-prose popular histories, supplemented by memoirs of his adventures and by ferocious political invective. (He was a distant cousin of Rudyard Kipling; it shows.) He was widowed once and remarried, fathering six children in all.

    Just out of college, Theodore Roosevelt was elected to the New York State Assembly as a Republican in 1881. (At the same time he published his first book, on the naval side of the War of 1812.) He was even briefly the minority leader, until the Republicans unexpectedly gained a majority and decided they did not want a kid running the legislature. He divided his time between politics and ranching in the Dakotas during the 1880s. The latter enterprise, into which he had sunk much of his considerable inheritance, lapsed when his herds were wiped out in the severe winter of 1886-87. Still, he continued to mount nearly annual hunting expeditions, and it was in this period that he began his influential multivolume history, "The Winning of the West." In the 1890s he served on (and dominated) the new federal Civil Service Commission, and then on the New York City Police Commission. (It was while serving in the latter post that cartoonists fell in love with his spectacles, mustache and teeth.) President McKinley made him Assistant Secretary of the Navy in the period leading up to the Spanish-American War of 1898. During that war he served in Cuba with operatic distinction as lieutenant colonel of a volunteer regiment (the "Rough Riders") in the chaotic but successful American advance on Santiago. The Battle of San Juan Hill did not for the most part occur on San Juan Hill, which in any case is actually a ridge, but Roosevelt really was stone courageous.

    Roosevelt's war record, helped not least by his own quickie book on his exploits, got him elected governor of New York State. There he showed a disconcerting tendency to make appointments for reasons other than patronage and to try to regulate monopolies. It was actually in order to restrain him that the Republican Party leaders made him McKinley's second vice president. McKinley's assassination by the self-described anarchist Leon Czolgosz (pronounced "Tsholgosh") put him in the White House.

    Roosevelt in office exercised functions no one knew the president had (and indeed didn't, until Roosevelt made them up). He threatened to send in the Army to take over the coal mines during a potentially catastrophic strike, thereby forcing the owners to come to terms with the union. He turned federally-owned land into the nature preserves that became the National Park System, this with only the flimsiest legislative authorization. At a time when the Supreme Court tended to strike down new business regulation, he got Congress to extend federal control over the inspection of food and drugs. He managed to get some real authority for the Interstate Commerce Commission over the railroads, whose monopoly pricing he remembered from his own days in the Dakotas. He acquired the land to build the Panama Canal. (The transaction, as his Attorney General delicately put it, was accomplished "without the slightest taint of legality.") He sent American forces to briefly occupy Havana without Congressional authorization. In fact, he sent the whole fleet on a round-the-world cruise and dared Congress not to appropriate the money to bring it back. The rules for American football were revised under White House auspices. He also tried to reform English spelling by executive order, but here Congress stopped him cold.

    It is the measure of Roosevelt that, though he often wrote and spoke of war as if it were a kind of extreme sport, he started no war when pulling the trigger was his own responsibility. In fact, he had a knack for negotiation. He negotiated an end to the appalling guerrilla war that had simmered in the Philippines since the U.S. acquired the archipelago in the Spanish-American War. He famously won the Nobel Peace Prize for hosting the negotiations that ended the Russo-Japanese War. Less famously, he was instrumental in defusing the Algeciras Crisis in 1906, and he persuaded the Kaiser to take his bad-debt claims against Latin American countries to the Hague, instead of trying to settle them by sending German battleships into the western hemisphere. Roosevelt was in fact a great believer in international law and the settlement of disputes by arbitration. He was far from pacifism, of course. In his view, it was not the function of international law to discourage war, but to regulate it.

    Roosevelt was an ideological imperialist. He did not just want an American empire, he liked the idea of empires in general. The reason for this was the same as his reason for supporting labor unions: he supported order for its own sake. Much the same motive probably also lay behind his support of a rationalized spelling for English. Put negatively, this means that he feared disorder. He had a particular hatred for anarchists of all descriptions, of course, but much the same sentiment informed his support of business regulation. Laissez faire economics made him nervous, because it appeared to allow chaos.

    One way to put it might be to say that Roosevelt liked power, but power employed to build things. On the whole he assumed that bigger was better. Canals, empires, populations: he supported pronatalist policies against the beginnings of the birth control movement. Even his antitrust policy reflected this principle, since he much preferred regulating monopolies to breaking them up. He had mixed feelings about immigration, but for most of his life he saw it as a good, provided there was no multiculty nonsense about keeping the immigrants in ethnic enclaves. In his mind, being a Lincoln Republican also meant being a an anti-racist Republican, because racism required leaving something unassimilated.

    Roosevelt may have been the first American statesman with a geostrategic sense. He understood that Eurasia has two ends, and the U.S. is in trouble if anything goes seriously wrong at either one. Whenever possible, the U.S. should support the states of the periphery against those of the interior. He had a genuine flash of prescience regarding the peculiar susceptibility of Russia to socialist revolution. In later years, he even understood that, if it became necessary to go to war with Germany, then thereafter it would become necessary to support a weakened Germany against the Slavic threat. This was the script for the 20th century, and he grasped it 30 years before anyone else.

    Roosevelt saw to it that his old friend and right-hand man, William Howard Taft, would get the Republican nomination in 1908. Taft was elected, and Roosevelt, just 50 years of age, left for a triumphal tour of Africa and Europe. This tour made him the most famous man in the world. At the end of it, he represented the U.S. at the funeral of Edward VII, and he was the one the other dignitaries wanted to see. (Roosevelt avoided seeing the young Winston Churchill. He thought Churchill was a shady self-promoter.) Then Roosevelt returned to the United States and spent the rest of Taft's term stabbing his old friend in the back.

    The reason he did this is fundamentally mysterious. Roosevelt had some real policy differences with his successor. Taft was much more accommodating to big business than Roosevelt ever was. (J.P. Morgan offered a toast when Roosevelt left for Africa: "America expects every lion to do its duty!") Still, Taft actually had a more vigorous anti-monopoly program than Roosevelt had had. Taft was friendlier with the Republican Party bosses than Roosevelt was, but that was not much of an accomplishment considering how much they distrusted Roosevelt. The answer seems simply to have been that Roosevelt was jealous. He was also incapable of self-knowledge, so he ascribed incompetence and bad motive to the people who excited his envy. Since there was then no constitutional bar to a third term, Roosevelt spent the rest of his life trying to get back into the White House. In the process, he ensured that Woodrow Wilson, a cerebral history professor of whom he would really and truly have cause to be jealous in a few years, would win the election of 1912.

    That campaign was one of the odder episodes in the history of electoral politics. Party candidates in those days were chosen only in part through popular primaries, so although Roosevelt got most of the elected delegates to the Republican Party Convention, the party bosses renominated Taft. Then Roosevelt's delegates walked out of the Republican Convention to another hall where the nascent Progressive Party was meeting. That Convention then nominated Roosevelt for president.

    Now the Progressive Party did not last long, but it provided the political agenda of the next 40 years. It had a moderate-liberal platform that included such things as unemployment insurance, the direct election of U.S. senators (who at the time were appointed by state legislatures) and an eight-hour workday. They were also the women's party, oddly enough for a body also known as "The Bull Moose Party," since they supported women's suffrage. Their convention, unlike the quadrennial fraternity blow-outs the other two parties would continue to hold until the 1960s, was a serious meeting of serious professional people. They punctuated their deliberations with the singing of serious songs, such as "Onward Christian Soldiers" and "The Battle Hymn of the Republic." This was the sort of Crusader politics for which Roosevelt had waited all his life, and he made the most of it.

    "We stand at Armageddon, and we battle for the Lord!" Roosevelt told the Convention. Interrupted only by roars of approval from the serious audience, he expanded at length on the peril in which civilization itself would be placed if the Progressive movement failed. In retrospect, it is easy to make fun of this kind of apocalyptic language, but the sense of impending apocalypse was quite common throughout Western civilization at the time. We see today that the intuition was correct, even if it sometimes fastened on unlikely objects.

    In the event, Roosevelt came in a distant second to Wilson in the general election. Roosevelt was followed even more distantly by Taft, who had remained in the race only to ensure that Roosevelt would not be reelected. Afterwards, Roosevelt abandoned the Progressives and went on another of his scientific expeditions, this one to the Amazon in the company of his son Kermit. Stricken with various infections, Roosevelt barely survived this trip, though the tributary the expedition mapped is still named after him. (The "Teodoro," people call it locally).

    Soon after his return the First World War broke out. Roosevelt gnashed his famous teeth. He wanted the United States to enter the war. He wanted to organize a volunteer regiment like the "Rough Riders." Most of all, he wanted to be president instead of "that creature" (more specifically "that skunk," or "that lily-livered skunk") Woodrow Wilson. That Wilson was as much a Progressive in policy terms as Roosevelt had ever been was irrelevent.

    Roosevelt became a genuine fanatic in his latter days, especially after the U.S. declared war on Germany in 1917. While previously he had always been able to distinguish doubts about unrestricted immigration from hostility to actual immigrants, in his stump speeches for the war effort he began to speak as if German ancestry were prima-facie evidence of disloyalty. Unable to imagine that some people might hold sincere convictions other than his own, he denounced pacifists and conscientious objects as traitors pure and simple. Neither was treason confined to private persons: his criticism of public officials for the mishandling of American logistics was so heated that the Justice Department actually considered prosecuting him under the era's generously interpreted laws against subversive speech. When the youngest of his four sons, Quentin, died in a dogfight over the Western Front, Roosevelt became if anything even less restrained. Roosevelt corresponded with Georges Clemenceau and Arthur Balfour, explaining as an expert just how weak Wilson's domestic position was after the Democrats did poorly in the congressional elections of 1918. There are lots of reasons why Wilson was unable to extract a moderate peace from the Versailles Conference, but Roosevelt's private diplomacy did not help.

    It may be that Roosevelt's unexpected death from a heart attack in early 1919 prevented him from achieving an even more perfect revenge on Wilson. By the time of his death, he was once again the most popular Republican in America. Had he sought the Republican nomination, he would almost certainly have gotten it, and had he been nominated he would almost certainly have won. Theodore Roosevelt's third term: now that is some alternative history to think about.

    If Roosevelt were alive today, he would have some intemperate things to say about the "New Nationalist" proposals to unplug his policies from the beginning of the 20th century and install them again at the end. His ideas, good and bad, were always forward-looking. He understood that the 20th century was going to be about socialism and world war, and he took the first steps to prepare the nation accordingly. Now these issues have been resolved, and the next century is going to be about something else; you can take your pick about what these things will be. The odds are, though, that we would be well advised to adopt Roosevelt's guiding instincts: we should fear disorder, and we should once again like building things.




    This article originally appeared in the March 1998 issue of Culture Wars magazine. Please click on the following line for more information: Copyright © 1998 by John J. Reilly


    Why post old articles?

    Who was John J. Reilly?

    All of John's posts here

    An archive of John's site