February 16, 2003


-REVIEW: of The Dissenting Opinions of Mr. Justice Holmes, 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.

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

Speaking of pragmatism...here's a devastating assessment of the jurisprudence of Oliver Wendell Holmes by H.L. Mencken, which nearly by itself demonstrates just why conservatives continue to believe Mr. Mencken an important essayist. And, just to tie it all together, here's a comparison of Orwell & Mencken, -ESSAY: Mencken and Orwell, Social Critics With Little (and Much) in Common (EDWARD ROTHSTEIN, October 26, 2002, NY Times)

And for more on the unfortunate legal legacy of Justice Holmes, see Law Without Values: The Life, Work, and Legacy of Justice Holmes (Albert W. Alschuler)


REVIEW : of Law Without Values The Life, Work, and Legacy of Justice Holmes. By Albert W. Alschuler (Jeffrey Rosen, NY Times Book Review)

-REVIEW: of Law Without Values (Phillip E. Johnson, First Things)

-REVIEW: of Law Without Values. (The Economist)

-REVIEW: of Law Without Values (Peter Schuler , University of Chicago Chronicle)

: of Law Without Values
(Ramesh Ponnuru, National Review)
Law without Values (Peter Berkowitz, Times Literary Supplement)

Posted by Orrin Judd at February 16, 2003 9:21 AM
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