Oliver Wendell Holmes, Jr.

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Oliver Wendell Holmes, Jr.
OWH.jpg
Former Associate Justice of the U.S. Supreme Court
From: December 4, 1902 – January 12, 1932
Nominator Theodore Roosevelt
Predecessor Horace Gray
Successor Benjamin Cardozo
Information
Spouse(s) Fanny Bowditch Dixwell
Religion Atheist

Oliver Wendell Holmes, Jr. (1841-1935) served on the United States Supreme Court for over 30 years and is an icon in American law schools, despite how his valueless approach to the law was ultimately rejected by nearly every modern jurist. Holmes remains known for his elegant writing style and for some of his dissents, as in Lochner v. New York, where Holmes' view did ultimately become the winning side after he had retired.

Holmes was most notably wrong in taking a narrow view of free speech under the First Amendment, and in offensively (and pompously) declaring that "three generations of imbeciles are enough" in Buck v. Bell near the end of his career, as discussed below.

Family and Life

Family

Holmes' grandfather was Abiel Holmes, a Congregationalist minister of Puritan stock. Abiel's son, Oliver Wendell Holmes, Sr., abandoned his father's Congregationalism for Unitarianism,[1] and was accused by Henry Adams, grandson of President John Quincy Adams, of preaching “wild atheism.”[2]

Civil War

"[D]eeply moved by the Abolition cause,"[3] Holmes left Harvard University to volunteer for the Union Army in the Civil War, which he called “the Christian Crusade of the 19th century.”[4] Holmes was strongly affected by his experiences in the war. “[I]t's odd how indifferent one gets to the sight of death—perhaps, because one gets aristocratic and don't value much a common life,” he wrote. “Then they are apt to be so dirty it seems natural.”[5]

Career

After editing the American Law Review early in his career, Holmes wrote The Common-Law in 1881. The following year he became a professor of law at Harvard, and two decades later he was appointed to the Massachusetts Supreme Court. In 1902 President Theodore Roosevelt appointed him to the United States Supreme Court, where he served until the age of 90, when his colleagues suggested his resignation. He died a few years later. As a Supreme Court Justice, among his law clerks were the brothers Alger and Donald Hiss.

Philosophy

Atheism

Originally a devout Emersonian,[6] Holmes' experience of war transformed him from mild Unitarianism into skepticism, and ultimately Darwinian atheism.[7] He was wounded, later writing:

when I thought I was dying the reflection that the majority vote of the civilized world declared that with my opinions I was en route for Hell came up with painful distinctness.... then I thought I couldn't be guilty of a deathbed recantation.... Besides, thought I, can I recant if I want to, has the approach of death changed my beliefs much? & to this I answered—No.... and so with a “God forgive me if I'm wrong” I slept....[8]

Legal Realism and Moral Nihilism

As the father of “legal realism,” Holmes' great mission was to divorce law from all concepts of morality and ethics. He wrote, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.”[9] He was a “moral nihilist”;[10] in addition, his ideas included Skepticism, Materialism, Utilitarianism, Pragmatism, and “Nietzschean vitalism and 'will to power.'”[11]

Might Makes Right

Holmes Sr. once compared himself to Socrates,[12] but Holmes Jr. took the part of Thrasymachus[13]—that “might makes right”—when he wrote that “force... is the ultima ratio.”[14] The “proximate test of a good government,” he wrote, is that “the dominant power has its way.”[15] A “law should be called good if it reflects the will of the dominant forces of the community,” he wrote to Felix Frankfurter, “even if it will take us to hell.”[16]

Bizarre rulings

Justice Holmes wrote a U.S. Supreme Court decision in 1922 holding that baseball was exempt from the antitrust laws because baseball supposedly did not involve interstate commerce.[17]

Rights

Holmes was not a fan of human rights. “All my life I have sneered at the natural rights of man,” he wrote socialist[18] Harold Laski.[19] “You respect the rights of man,” he wrote. “I don't, except those things a given crowd will fight for.”[20] Elsewhere, he wrote that human rights are merely what a given crowd will fight for “successfully.”[21]

Free Speech

During World War I, the administration of Woodrow Wilson, a Democrat, pushed through the "Espionage Act," under which it arrested anti-war protesters. In 1919 Holmes upheld the conviction of Socialist Party leader Eugene Debs.[22] Holmes was subsequently among those targeted for attempted bombing by domestic terrorists.[23]

Property Rights

Holmes' denial of rights included property rights. Justice Holmes wrote a 5-4 decision upholding rent control and denying a claim for repossession by a property owner.[24] Holmes made no mention of the Fifth Amendment protection of private property in this opinion.

Right to Contract

Holmes' also denied the right to contract. In Lochner v. New York,[25] the Supreme Court ruled that a New York law restricting the hours bakers could work violated Article 1, Section 10, of the United States Constitution ("No State shall... pass any... Law impairing the Obligation of Contracts")[26] and Section 1 of the XIV Amendment ("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").[27] The majority held that these clauses protected all liberty, including economic liberty, and specifically the freedom to contract—then still recognized among the “unenumerated rights” protected by the IX Amendment.[28] In his dissent, Holmes implied that economic liberty was not constitutionally protected, with his famous aphorism “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Under the threat of Franklin Roosevelt's "court-packing" plan,[29] the Supreme Court came to see the wisdom of adopting Holmes' (and Roosevelt's) view of the matter.[30]

Darwinism

Holmes' atheism and Darwinism led him to deny Christian values such as respect for human life. “I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand,” he wrote.[31] The “sacredness of human life,” according to Holmes, “is purely a municipal ideal of no validity outside the jurisdiction.”[32] “All 'isms seem to me silly,” he wrote Laski, “but this hyperaethereal respect for human life seems perhaps the silliest of all.”[33] He asked another correspondent, “Doesn't this squashy sentimentality... about human life make you puke?”[34] His opinion of his fellow man was not charitable. “I loathe the thick-fingered clowns we call the people,” he wrote, calling them “vulgar, selfish, and base.”[35]

Social Darwinism and Eugenics

Holmes was a believer not just in Darwinism, but in Social Darwinism[36] and eugenics. In 1915, he wrote that “wholesale social regeneration” could be effected “only by taking in hand life and trying to build a race.”[37] What he meant, he explained six years later to Frankfurter, was not merely “restricting propagation by the undesirables,” but “putting to death infants that didn't pass the examination, etc. etc.”[38] His denial of human rights thus extinguished even to the right to life.

As early as 1895, Holmes said, “I can imagine a future in which science... shall take control of life, and condemn at once with instant execution what now is left for nature to destroy.”[39] Two years later, he wrote that in order to “see socialism successful,” society must “substitute artificial selection for natural by putting to death the inadequate.”[40] He wrote of his “contempt” for “socialisms not prepared... to kill everyone below standard,” adding, “I shall think socialism begins to be entitled to serious treatment when and not before it takes life in hand and prevents continuance of the unfit.” (In 1941, Father Frances E. Lucey, regent of Georgetown University Law School, remarked that "if recent reports are true" National Socialist Germany appeared to satisfy this standard.)[41] “I can understand saying,” wrote Holmes, “whatever the cost, so far as may be, we will keep certain strains out of our blood.”[42] Holmes looked forward to a future civilization “perhaps with smaller numbers, but perhaps also bred to greatness and splendor by science.”[43]

Buck v. Bell

As a Supreme Court Justice, Holmes read his belief in eugenics into the Constitution, writing the decision in Buck v. Bell (1927) upholding the forced sterilization of a young woman, Carrie Buck, on the grounds that she had a low IQ. Substituting his personal views in place of the Constitution, he wrote, "Three generations of imbeciles are enough," referring to Buck, her mother, and her six-month-old baby.[44] The Nazis, who sterilized more than 400,000 people, used Buck v. Bell in their propaganda.[45] When that practice was condemned at the Nuremberg trials, counsel for the accused Nazis likewise cited Holmes' opinion in their clients' defense.[46]

“One decision that I wrote gave me pleasure,” confided Holmes, “establishing the constitutionality of a law permitting the sterilization of imbeciles.”[47] “I wrote and delivered a decision upholding the constitutionality of a state law for sterilizing imbeciles the other day,” he wrote Laski, “and felt that I was getting near to the first principle of real reform.”[48] As his biographer Sheldon Novick comments, Holmes “in personal letters seemed to espouse a kind of fascist ideology.”[49]

References

  1. Speech of Oliver Wendell Holmes at the Unitarian Convention in Boston”, The New York Times, May 28, 1859
  2. Jacob Clavner Levenson, ed., The Letters of Henry Adams: 1868-1885, (Cambridge, Mass.: Harvard University Press, 1988) ISBN 0674526856, pp. 274-275
  3. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1995) ISBN 0195101286, p. 31
  4. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1995) ISBN 0195101286, p. 70
  5. Holmes to his mother, December 12, 1862, reprinted in Mark De Wolfe Howe, ed. Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-1864 (Cambridge, Mass.: Harvard University Press, 1947), p. 71 p. 78 (PDF p. 100)
  6. Deirdre N. McCloskey, The Bourgeois Virtues: Ethics for an Age of Commerce (University of Chicago Press, 2006) ISBN 0226556638, p. 193
  7. J. David Hoeveler, The Evolutionists: American Thinkers Confront Charles Darwin, 1860-1920 (Lanham, Md.: Rowman & Littlefield, 2007) ISBN 074251174X, p. 194
  8. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1995) ISBN 0195101286, pp. 73-74
  9. Oliver Wendell Holmes Jr., “The Path of the Law,” Harvard Law Review, Vol. X, No. 8 (March 25, 1897), p. 464
  10. David Luban, Legal Modernism: Law, Meaning, and Violence (Ann Arbor, Mich.: University of Michigan Press, 1997) ISBN 0472084399, p. 29
  11. Richard A. Posner, ed., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. (University of Chicago Press, 1997) ISBN 0226675548, pp. xvi, xix-xx
  12. Holmes' father declared that he had been “accused of the crime for which Socrates suffered; that of being a poisoner of public opinion.” (“Speech of Oliver Wendell Holmes at the Unitarian Convention in Boston”, The New York Times, May 28, 1859)
  13. ”I proclaim that justice is nothing else than the interest of the stronger.” Plato (A.D. Lindsay, tr.), The Republic (London: J. M. Dent & Sons Ltd, 1954) ISBN 1603035621, p. 52
  14. Holmes to Frederick Pollock, February 1, 1920, in Richard A. Posner, ed., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. (University of Chicago Press, 1992), p. 103
  15. Oliver Wendell Holmes, “Montequieu” (1901), in Collected Legal Papers (New York: Harcourt, Brace and Co., 1920), p. 258
  16. Holmes to Frankfurter, March 24, 1914, reprinted in Robert M. Mennel and Christine L. Compston, eds., Holmes and Frankfurter: Their Correspondence, 1912-1934 (Hanover, N.H.: University Press of New England, 1996) ISBN 0874517583, p. 19
  17. http://www.history.com/this-day-in-history/supreme-court-rules-in-favor-of-major-league-baseball
  18. Gary Dean Best, Harold Laski and American Liberalism (New Brunswick, N.J.: Transaction Publishers, 2005) ISBN 076580266X, p. 5
  19. Holmes to Laski, August 6, 1917, reprinted in Mark De Wolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935, Volume 1 (Harvard University Press, 1953), p. 96
  20. Holmes to Laski, June 1, 1927, reprinted in Mark De Wolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935, Volume 2 (Harvard University Press, 1953), p. 948 (PDF p. 148)
  21. Holmes to Laski, December 3, 1917, reprinted in Mark De Wolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935, Volume 1 (Harvard University Press, 1953), p. 115
  22. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1995) ISBN 0195101286, p. 106
  23. Paul Avrich, Sacco and Vanzetti: The Anarchist Background (Princeton University Press, 1996), ISBN 0691026041, p. 143
  24. Block v. Hirsh, 256 U.S. 135 (1921)
  25. Lochner v. New York, 198 U.S. 45 (1905)
  26. Constitution of the United States, National Archives
  27. Constitution of the United States, Amendment 11-27, National Archives
  28. Bernard H. Siegan, "Rehabilitating Lochner," San Diego Law Review 22 (1985), p. 453; cf. David E. Bernstein (2003), "Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism," Georgetown Law Journal, Vol. 82, No. 1, 2003; Thomas A. Bowden, "Justice Holmes and the Empty Constitution," The Objective Standard, Vol. 4, No. 2 (Summer 2009)
  29. Paul Volpe, Court Packing: Judicial Reorganization and the End of the New Deal, The Real Deal: The Battle to Define FDR's Social Programs, American Studies, University of Virginia
  30. Richard Epstein, “The Mistakes of 1937,” 11 George Mason University Law Review 5, 13-20 (Winter 1988)
  31. Holmes to Frederick Pollock, August 30, 1929, in Richard A. Posner, ed., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. (University of Chicago Press, 1992), p. 108
  32. Jesse H. Choper, ed., The Supreme Court and Its Justices (American Bar Association, 1987) ISBN 0897072901, p. 232
  33. Holmes to Laski, April 13, 1929, reprinted in Mark De Wolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935, Volume 2 (Harvard University Press, 1953), p. 1146 (PDF p. 346)
  34. Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Dell Publishing, 1990) ISBN 0440503256, p. 469
  35. Mark De Wolfe Howe, ed. Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-1864 (Cambridge, Mass.: Harvard University Press, 1947), p. 71 (PDF p. 93)
  36. J.W. Burrow, “Holmes in His Social Milieu,” in Robert Watson Gordon, ed., The Legacy of Oliver Wendell Holmes, Jr (Stanford University Press, 1992) ISBN 0804719896, pp. 18-29
  37. Oliver Wendell Holmes, Jr., “Ideals and Doubts,” 10 Illinois Law Review 1 (1915), reprinted in Collected Legal Papers (New York: Harcourt, Brace and Co., 1920), p. 306
  38. Holmes to Frankfurter, September 3, 1921, postscript, in Robert M. Mennel and Christine L. Compston, eds., Holmes and Frankfurter: Their Correspondence, 1912-1934 (Hanover, N.H.: University Press of New England, 1996) ISBN 0874517583, p. 125
  39. Oliver Wendell Holmes Jr., An Address (Boston: Little, Brown, and Company, 1895), p. 5
  40. Holmes to Claire Fitzpatrick, Lady Castletown, August 19, 1897, quoted in Sheldon M. Novick, “Justice Holmes' Philosophy,” 70 Washington University Law Quarterly (1992), pp. 703, 729
  41. Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2002) ISBN 0226015211, pp. 27-28
  42. Oliver Wendell Holmes Jr., “Law and Social Reform,” in Max Lerner, ed., The Mind and Faith of Justice Holmes (Boston: Little, Brown and Company, 1943), p. 401 (PDF p. 446)
  43. Oliver Wendell Holmes Jr., “The Law and the Court,” Collected Legal Papers, p. 296
  44. Buck v. Bell, 274 U.S. 200 (1927)
  45. Stephen Murdoch, Review of Paul Lombardo’s Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Johns Hopkins University Press, 2008), History News Network (George Mason University, January 13, 2009)
  46. William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (Oxford University Press, 1996) ISBN 0195111311, p. 17
  47. James Bishop Peabody, ed, The Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein, 1903-1935 (New York: St. Martin's Press, 1964), p. 267
  48. Holmes to Laski, May 12, 1927, reprinted in Mark De Wolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935, Volume 2 (Harvard University Press, 1953), p. 942 (PDF p. 141)
  49. Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (New York: Dell Publishing, 1990) ISBN 0440503256, p. xvii

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