THE PRAGMATIST PASSES:

-OBITUARY: Washington Holds Bright Memories of Justice Holmes's Long and Useful Life: Soldier, Jurist and Philosopher, He Sprang From New England's Cultural Dominance (THE NEW YORK TIMES, March 6, 1935)

As Justice Holmes grew old he became a figure for legend. Eager young students of history and the law, with no possibility of an introduction to him, made pilgrimages to Washington merely that they might remember at least the sight of him on the bench of the Supreme Court. Others so fortunate as to be invited to his home were apt to consider themselves thereafter as men set apart. Their elders, far from discouraging this attitude, strengthened it.

A group of leading jurists and liberals filled a volume of essays in praise of him, and on the occasion of its presentation Chief Justice Hughes said:

"The most beautiful and the rarest thing in the world is a complete human life, unmarred, unified by intelligent purpose and uninterrupted accomplishment, blessed by great talent employed in the worthiest activities, with a deserving fame never dimmed and always growing. Such a rarely beautiful life is that of Mr. Justice Holmes."

Unfortunately though, the purpose to which Justice Holmes dedicated his life was the demoralization of American political life and the substitution of simple tyranny of the majority.

Perhaps the first to recognize this was H.L. Mencken, Mr. Justice Holmes: A Review of The Dissenting Opinions of Mr. Justice Holmes (H.L. Mencken, May 1930, The American Mercury):

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

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

But in recent years, this "Pragmatism" has been written about favorably by Louis Menand and negatively, and more appropriately, by Albert W. Alschuler, in Law Without Values: The Life, Work, and Legacy of Justice Holmes.

Posted by Orrin Judd at March 8, 2003 7:09 AM