And 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.
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