Feb 092003

Justice Holmes, beloved of the left, beloved of the right (law-and-economics guru Richard Posner has edited the latest collection of his writing). It must be his looks more than anything: the height (6’3″), the big bristly white mustache, the Brahmin carriage, the steely gaze; he looks the very model of the modern Supreme Court Justice, at least as it must have been when Teddy Roosevelt appointed him in 1902. The name helps too: Oliver Wendell Holmes Jr. Cognominal overload, but fun to say.

What it can’t be is his jurisprudence. The first thing to understand about Holmes is that he was a radical moral skeptic. He was seriously wounded three times in the Civil War, shot through the heart at Antietam, and the experience hardened his conviction that human life was insignificant and reason impotent. What mattered was duty.

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

Ugh. This is from a speech, made Memorial Day at Harvard in 1895, that induced Roosevelt to nominate him to the Supreme Court.

“I hate facts,” Holmes frequently remarked; “the chief end of man is to form general propositions.” He was always careful to add that no general proposition is worth a damn. Concrete propositions are worthless, abstract propositions are worthless — not much ground left to decide cases on, is there?

His jurisprudence accords with his table talk. This is most readily observed in his famous 14th Amendment decisions. The 14th Amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This leaves the judge to decide what “privileges and immunities,” “due process of law,” and “equal protection of the laws” are. It’s tough to do this without making a moral judgment somewhere along the line, which leaves a skeptic like Holmes in some difficulties, as we shall see.

Holmes’s first, and most famous, 14th Amendment decision was Lochner v. New York, in 1905. In Lochner the majority held that a New York state law prohibiting bakers from working more than 60 hours a week violated the 14th Amendment. Holmes wrote a magisterial dissent, declaring that “the 14th Amendment of the Constitution does not enact Mr. Herbert Spencer’s Social Statics [i.e., laissez-faire capitalism].”

Except nobody thought the 14th Amendment enacted laissez-faire. Everyone agreed that the States had the right to exercise the police power to protect people’s health and safety. Chief Justice Peckham, writing for the majority, argued, reasonably, that restricting the hours of bakers, who didn’t work in notably dangerous conditions, bears no reasonable relationship to the people’s health and safety, and that one of a citizen’s privileges and immunities is to contract his labor freely. Holmes’s famous aphorism doesn’t bear on the case in the slightest. (Although I can find no contemporary testimony on this subject, Holmes’ fellow justices must have found his writing style, in its grand manner, its haughty demolition of straw men, exceptionally irritating. I know I would.)

This is the sentence that should be quoted from Holmes’s Lochner dissent, but is not: “General propositions do not decide concrete cases.” OK. Then what does exactly? “The decision will depend on a judgment or intuition more subtle than any articulate major premise.” Intuition. This is what remains after we abandon concrete and abstract propositions alike.

This opinion is one of the two linchpins of Holmes’s reputation on the left. The other is his dissent in Abrams v. United States in 1919. In Abrams five Russian-born anarchists who printed and distributed a pamphlet calling President Wilson a “dog” and exhorting the workers of the world to unite were convicted under the Espionage Act of 1917, which prohibited “disloyal, scurrilous and abusive language about the form of Government of the United States;” language “intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute”; and language “intended to incite, provoke and encourage resistance to the United States in said war [WWI].” A noxious law, upheld by the majority, and Holmes, along with Brandeis, properly dissented. Here is his reasoning:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

Cold comfort for the civil libertarian. Free speech, according to Holmes, is good because the best “test of truth” — a word that, given his philosophy, he is not strictly entitled to — “is the power of the thought to get itself accepted in the competition of the market.” That millions of American adults, having profited from two centuries of free speech, continue to believe in astrology, the healing power of crystals, and buying real estate with no money down might seem to put this theory in some doubt. Fortunately it is only the theory of Justice Holmes. The theory of our Constitution is that suppressing speech is itself tyrannical and the shortest route to further tyranny.

Holmes states elsewhere, in Gitlow v. United States (1925), why free speech, as opposed to freedom of contract, is protected under the 14th Amendment.

The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word “liberty” as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.

Speech is protected because it’s part of liberty, and other liberties aren’t because, well, they aren’t. As a legal argument this leaves something to be desired. Perhaps the moral skeptic is making moral judgments after all.

Buck v. Bell confirms one’s suspicions. Under a 1924 statute enabling involuntary surgical sterilization “for the protection and health of the state” the State of Virginia sterilized Carrie Buck, a supposed mental defective (who turned out not to be after all), without her knowledge. When she found out later she couldn’t get pregnant, she brought suit on 14th Amendment grounds and lost, 8-1, with only Justice Butler dissenting. Holmes, personally an enthusiastic eugenicist, wrote for the court:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough.

Plainly Holmes believes that the 14th Amendment does not apply to state eugenics because Holmes believes in state eugenics. One need not belong to the third generation of imbeciles to differ. More seriously, if “the public welfare may call upon the best citizens for their lives,” then why does Holmes maintain that the 14th Amendment protects speech, or, indeed, any rights whatsoever?

Speech but not contract. Speech but not the reproductive organs. “All my life,” Holmes said, “I have sneered at the natural rights of man.”

(The son is lionized, the father is neglected. Oliver Wendell Holmes Sr. was a physician, poet and essayist, professor of anatomy and physiology at Harvard Medical School, a pioneer of the bacterial theory of disease, author of the still-entertaining miscellany The Autocrat of the Breakfast Table and the greatest poem ever written about engineering, “The Wonderful One-Hoss Shay,” in which more wisdom can be found than in his son’s complete works.)

(Update: Jim Ryan thinks it’s possible to abandon rule-based reasoning without becoming an intuitionist, which he agrees is just another name for never having to give reasons, and argues for this here. I answer him here.)

(Another: The Man Without Qualities comments. He persuasively reads “The One Hoss-Shay” as being about the collapse of American Protestantism. And so it is, at the level of the tenor. At the level of the vehicle, however — the literal vehicle in this case — it’s about engineering. But this is yet another subject I can’t cover in a parenthesis. Walter Olson also comments.)

(Correction: Damien Sinnott kindly pointed out that Buck v. Bell was 8-1, not unanimous, and this has been corrected in the text.)

  11 Responses to “Oliver Wendell Holmes Jr. (Bogus American Sage Series, Part I)”

  1. Outstanding job! Holmes’ dissent in Abrams is one of the most vile defenses of the correct position ever written. In total contradiction to Paine, Jefferson and Madison, he suggests that radical skepticism is the necessary basis of "the theory of our Constitution." Democracy and free speech "work" because the closest approximation of truth that we have is an opinion poll. And, of course, the implied contrary is even more pernicious, that any epistemic certainty must, will and probably should, result in a totalitarian imposition of itself in the law. Liberty cannot last long under such "reasoning." It’s as if he skimmed Mill’s Liberty and imposed his misread of that on his misread of the Constitution.

    But he did have the all-time judicial scowl, didn’t he?

  2. Brilliant essay. I look forward to seeing more from your pen, and suspect you’d have a very good book in this if you write enough of them.

    My ConLaw professor fed us the presumably UL that Yale law students, asked to vote on a statement to carve into stone above the entrance to the new school building, picked "Three generations of imbeciles are enough" but cooler (though not wiser) heads prevailed.

  3. No, I’m not trying to drag you into a discussion. Just passing the time of day is all. You might like that Goldman book I linked to. You and he are big on law and baseball. He was almost pro in both, but instead ended up my philosophy prof. Ah, well, second choice ain’t bad.

  4. The Goldman book looks pretty good. But since I didn’t finish college and or play even Little League he’s way out of my class.

  5. On the contrary. I’d like to hear what he’d have to say about your Holmes essay.

  6. The most overrated judge of all time is really Learned Hand, who had a great name and nothing else. His opinion in the Aloca case is one of the great judicial idiocies of all time.

  7. "Most overrated" is Wally Olson’s formulation, not mine. Hand was also responsible for the disastrous introduction of cost/benefit analysis into liability law.

  8. Very well written piece. However, I do not believe that the decision in Buck v. Bell was unaninmous–if I am not mistaken Justice Butler dissented. Of course, that one lone dissent hardly lessens the inhumanity of that infamous decision.

  9. Thanks Damien. You’re right, and I’ve corrected the text accordingly.

  10. I can’t get over that he was shot through the heart. I’d heard he’d been wounded, but didn’t know how badly. That’s bound to make you a bit fatalistic.

  11. I have long held the opinion that Oliver Wendell Holmes, Jr. was highly overrated as a jurist. It is high time someone finally spoke up and pointed out that that king wasn’t wearing clothes.

    Wasn’t it he and Learned Hand who spearheaded the "New School" (I’m not real sure that’s what they called it and would appreciate someone correcting me on that) of jurisprudence in the early 20th century. This school’s basic premise was that the judge’s subjective notion of justice should prevail in every case, notwithstanding any established legal authority to the contrary.

    When American jurisprudence took that path a judge’s political inclinations and personal feelings about various issuues became preeminent in their selection process. Their values and legal acumen took a back seat, where it still sits.

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