Abstract
Conservatives and libertarians have been harsh critics of Justice Oliver Wendell Holmes Jr., but Holmes was not the progressive that these critics make him out to be. Holmes’s jurisprudence lends itself to libertarian jurisprudence, in particular in the areas of federalism and judicial restraint. Holmes disdained the politics of the young socialists who adored him, and Richard Posner goes so far as to cast Holmes as a free market capitalist. A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions. Holmes did not have to agree with states and localities to say that federal judges and Supreme Court Justices should not inject their worldview into the life of a local community with an opposing worldview. He was a pragmatic pluralist. The pragmatist in Holmes disliked making decisions that were not rooted in lived experience or based on observable, concrete phenomena relating to commonplace interactions among regular people. Holmes also disliked any tendency to marry morality and law, since law, for him, was a set of rules reflecting the practical consequences arising out of everyday social relations.
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Notes
- 1.
David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (Chicago: University of Chicago Press, 2011).
- 2.
198 U.S. 45 (1905).
- 3.
See Robert M. Anderson, “The Judiciary’s Inability to Strike Down Healthcare Service Certificate of Need Laws through Economic Substantive Due Process,” Charleston Law Review 2, no. 4 (2008): 709–10.
- 4.
Ibid. In Lochner, the Court held that a section of the New York labor law prohibiting bakery employees from working more than 60 hours per week violated an individual’s freedom of contract. Lochner v. New York , 198 U.S. 45 (1905). The majority reasoned that while a state does have an interest in protecting the health of its citizens, it can only limit the freedom to contract if the statute has a direct relation to and substantial effect on employee health. Ibid., 64.
- 5.
See Anderson, “The Judiciary’s Inability” (“During the Lochner era, the Supreme Court recognized economic liberties as protected by the Fourteenth Amendment’s Due Process Clause”).
- 6.
James W. Ely Jr., “The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process,” Constitutional Commentary 16 (1999): 319.
- 7.
Letter from Oliver Wendell Holmes Jr. to John T. Morse, November 28, 1926, quoted in Louis Menand, The Metaphysical Club (2001), 67.
- 8.
Ibid.
- 9.
281 U.S. 586, 595 (1930) (Holmes, J., dissenting).
- 10.
See Eric R. Claeys, “Takings, Regulations and Natural Property Rights,” Cornell Law Review 88, no. 6 (2003): 1619 (“Mahon was ironic because the Court’s opinion was written not by any of the conservatives on the bench, but by progressive icon Justice Holmes, famous for dissenting in Lochner v. New York” ); Paul Finkelman, “Cultural Speech and Political Speech in Historical Perspective,” Boston University Law Review 79 (1999): 736 (reviewing David M. Rabban, Free Speech In Its Forgotten Years [1997]) (“Only after World War I did most Progressives, such as Holmes and Brandeis, suddenly discover the value of free speech”); Adam Mossoff, “What Is Property? Putting the Pieces Back Together,” Arizona Law Review 45 (2003): 395 (“For Holmes and the Progressives and [the] legal realists who followed in his footsteps, the essence of property was exclusion”); Robert H. Whorf, “Civil Rights: Looking Back—Looking Forward,” Barry Law Review 4 (2003): i (“During this period, even the Court’s early Twentieth Century legendary progressive, Oliver Wendell Holmes, ‘in a cynical and disingenuous opinion … insisted that federal courts could do nothing about racial disenfranchisement’ ”).
- 11.
Louis Menand, American Studies (2002), 33.
- 12.
Ibid., 35.
- 13.
Ibid., 33.
- 14.
Ibid.
- 15.
Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (stating that it is not his “duty” to give his opinion on the matter).
- 16.
Ibid., 76 (“ ‘[L]iberty’ … is perverted when it is held to prevent the natural outcome of a dominant opinion”).
- 17.
See Oliver W. Holmes, The Common Law (1881), 1 (“The life of law has not been logic: it has been experience … The law embodies the story of a nation’s development through many centuries”).
- 18.
Justice Oliver W. Holmes, “The Path of the Law,” Address at the Dedication of the New Hall of the Boston University School of Law, January 8, 1897, in Harvard Law Review 10 (1897): 460–61.
- 19.
Tyson & Bro.-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 446 (1927) (Holmes, J., dissenting).
- 20.
Letter from Oliver Wendell Holmes Jr. to Lewis Einstein, October 28, 1912, in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes Jr., ed. Richard A. Posner (1992), 141.
- 21.
Holmes, “The Path of the Law,” 469.
- 22.
Holmes, letter to Lewis Einstein.
- 23.
Menand, letter to John T. Morse, 65.
- 24.
Richard A. Posner, Law and Literature, 3rd ed. (President and Fellows of Harvard College, 2009), 344.
- 25.
Ibid., 347.
- 26.
Tyson & Bro.-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 433–34 (1927) (Holmes, J., dissenting).
- 27.
Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Touchstone, 1990), 44.
- 28.
McDonald v. City of Chicago, 130 S. Ct. 3020, 3058 (2010) (Scalia, J., concurring); City of Chicago v. Morales, 527 U.S. 41, 85 (1999) (Scalia, J., dissenting).
- 29.
Lochner v. New York, 198 U.S. 45, 75–76 (1905).
- 30.
Richard A. Posner, “Introduction,” in Oliver Wendell Holmes, Jr., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., ed. Richard A. Posner (1992), xv.
- 31.
Lochner, 198 U.S. at 75 (Holmes, J., dissenting).
- 32.
Ibid., 75–76 (stating that the Constitution “is made for people of fundamentally differing views”).
- 33.
Ibid., 75.
- 34.
Irving Bernstein, “The Conservative Mr. Justice Holmes,” New England Quarterly 23 (1950): 435.
- 35.
Max Lerner, “Introduction,” in Oliver Wendell Holmes Jr., The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions, 2nd ed., ed. Max Lerner (2010), xxviii.
- 36.
See Brad Snyder, “The House That Built Holmes,” Law & History Review 30 (2012): 685, 687 (citing examples of Pound, Hand, and Cardozo praising Holmes); Scott Messinger, “The Judge as Mentor: Oliver Wendell Holmes, Jr., and His Law Clerks,” Yale Journal of Law & the Humanities 11 (1999): 119 (quoting Frank’s praise of Holmes).
- 37.
Felix Frankfurter, “The Constitutional Opinions of Justice Holmes,” Harvard Law Review 29 (1916): 698.
- 38.
Truax v. Corrigan, 257 U.S. 312, 344 (1921) (Holmes, J., dissenting).
- 39.
Ibid.
- 40.
Lochner v. New York, 198 U.S. 45, 75 (1905).
- 41.
Menand , Metaphysical, 61–62; see also Thomas R. Healy, “Holmes and the Battle of Ball’s Bluff: Touched with Fire,” Oregon State Bar Bulletin (Aug./Sep. 2009): 42 (discussing Holmes’s involvement in the Battle of Ball’s Bluff during the Civil War); see also Allen Mendenhall, Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon (Lewisburg: Bucknell University Press, 2017), 98, 126–29.
- 42.
Letter from Oliver Wendell Holmes Jr. to Harold Laski, March 4, 1920, in Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1925, Vol. 1, ed. Mark DeWolfe Howe (1953), 249.
- 43.
Giles v. Harris, 189 U.S. 475, 488 (1903).
- 44.
Bartels v. Iowa, 262 U.S. 404, 412 (1923) (Holmes, J., dissenting).
- 45.
Tyson & Bro.-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 446 (1927) (Holmes, J., dissenting).
- 46.
Frankfurter, “Constitutional Opinions,” 686.
- 47.
See William James, “The Varieties of Religious Experience,” in William James: Writings 1902–1910, ed. Bruce Kuklick (1987): 436–38, 459–60 (arguing that it is not regrettable that there are many different religious sects and creeds and that others should be tolerant of these differences).
- 48.
William James, “A Pluralistic Universe,” in William James: Writings 1902–1910, 625, 776.
- 49.
See, for example, Lochner v. New York, 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting) (“[A] Constitution is not intended to embody a particular economic theory …. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States”).
- 50.
See Anthony E. Cook, “The Death of God in American Pragmatism and Realism: Resurrecting the Value of Love in Contemporary Jurisprudence,” Georgetown Law Journal 82 (1994): 1468; Rogers M. Smith, “The Constitution and Autonomy,” Texas Law Review 60 (1982): 184 n. 67.
- 51.
See, for example, Abrams v. United States, 250 U.S. 616, 630–31 (1919) (Holmes, J., dissenting).
- 52.
274 U.S. 200 (1927).
- 53.
Ibid., 208.
- 54.
See Robert E. Mensel, “The Antiprogressive Origins and Uses of the Right to Privacy in the Federal Courts 1860–1937,” Federal Courts Law Review 3 (2009): 117–18 (stating that the many reforms of the time were diverse and were not wedded to a particular party or ideology).
- 55.
Ibid.
- 56.
Ibid.
- 57.
Buck, 274 U.S. at 207 (reasoning that the interest of the state in a “pure” gene pool outweighed the individual interest in bodily integrity).
- 58.
See, for example, Charles Benedict Davenport, Heredity in Relation to Eugenics (New York: Holt & Co., 1911): 255–59 (proposing ways to eliminate undesirable traits in people, including sterilization and segregating the feeble-minded from everyone else unless it can be shown that the feeble-minded are in their condition because of their environment rather than their heritable genes); ibid., 260 (suggesting that controlled mating can enhance the species); id. at 266 (proposing that criminals be restricted in their right to mate); ibid., 267 (proposing that just as the state has the ability to take life, it also has the right to sterilize or segregate certain people from marriage); ibid., 268–69 (proposing that the state use the census to collect data about heritable traits so that families can advise their children about how to marry).
- 59.
Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
- 60.
Oliver W. Holmes, The Common Law (1881), passim.
- 61.
Oliver Wendell Holmes, “Ideals and Doubts,” Illinois Law Review 10 (1915): 3.
- 62.
Lochner v. New York, 198 U.S. at 75 (Holmes, J., dissenting).
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Mendenhall, A. (2020). Justice Holmes and Conservatism. In: The Three Ps of Liberty. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-39605-3_5
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