Holmes: An Uncommon Common Lawyer, but No Constitutionalist

Oliver Wendell Holmes: A Life in War, Law and Ideas might well be one of the most stimulating judicial biographies ever written. Of course, the life and career of Holmes (1841-1935) offer Stephen Budiansky much richer material than those of a typical judge. No other Supreme Court justice was seriously wounded three times on the battlefield, twice almost mortally. No other justice grew up in such a distinctive intellectual milieu with a father of the same name who was nationally famous. No other justice had from the earliest age soon-to-be world famous friends, like “Bill” and “Harry” (William and Henry James to the rest of us).

But Budiansky makes the most of this material. His descriptions of the Civil War battles in which Holmes fought are as intensely gripping as any written by a veteran military historian. And he appears to have ferreted out new material in the well-plowed archives of our bloodiest war. For instance, he includes a map of the Battle of Ball’s Bluff (Loudoun County, Virginia, October 1861) sketched by one Holmes’s friends, to show exactly where the first lieutenant in the 20th Massachusetts Regiment was shot through the chest. And the biographer nicely relates Holmes’s battlefield experiences to the rest of his life and work. Holmes came away from the Civil War profoundly concerned about human beings’ capacity to believe conflicting ideas with complete certitude, and pessimistic about the capacity of intellectual argument to convince them of the truth.

The biographer is no less evocative in describing the intellectual atmosphere into which Holmes was born. Upper-class Boston’s Puritan character had faded considerably by the mid-19th century, and Bostonians had come to embrace a Unitarianism that replaced traditional notions of Christianity with a gospel of social and self-improvement. Budiansky shows that while Holmes rejected Unitarianism (he was a lifelong agnostic), he was strongly influenced by this religious background. He was focused on self-improvement and duty all his life. He kept a list of very substantial books, including classics in the original language, that he would read each summer. He wanted to take part in the “practical struggle of life” and to resist the temptation, against which Unitarian preachers warned, to “retreat into his library.”

Most impressive of all, Budiansky shows that some of Holmes’s most well-known ideas may have had their roots in Unitarian thought—particularly its preference for empirical knowledge over the abstract disputes about theology that had, according to Unitarianism, marred the progress of Christianity. He juxtaposes several oft-cited Holmes dicta with the exhortations of Francis Bowen, a Harvard religion professor Unitarian, whose lectures Holmes attended and professed to dislike. For instance, the justice wrote in his famous dissent in Lochner v. New York that “General propositions do not decide concrete cases.” This famous sentence in fact echoes Bowen, who argued at greater length, but to the same effect, that “Absolute certainty belongs to the proposition only when couched in general terms. It can be applied to particular cases only by approximation.” Unitarianism here can be seen as the halfway house to progressivism and living constitutionalism.

The greatest weakness of the book is its treatment and evaluation of Holmes’s distinctively legal ideas. Professor Noah Feldman of Harvard Law School, in his review for the New York Times, has made a similar critique but not on the right grounds. Budiansky is faulted for failing to perceive the core contradiction in Holmes’s legal thought. Feldman notes that, whereas in The Common Law (1881), Holmes posited that judges made law, as a Supreme Court justice he was reluctant to make “constitutional law” and deferred mostly to whatever the federal and state legislatures did. Justice Holmes rarely invalidated statutes.

There is no contradiction here. The common law was the province of judges. They had no choice but to make this law, if one believed, as Holmes did, that the law had to be made, not discovered in some “brooding omnipresence.” But legislators were the actors who made law when they enacted statutes. Thus it made sense for the courts to defer to legislators, because they were closer to those social forces that could not be denied their place in law without that exclusion’s leading to the kind of conflagration Holmes himself had experienced in the Civil War. Holmes was not alone in taking this approach at the time. His friend James Bradley Thayer wrote a famous article in the Harvard Law Review in 1893, arguing that judges should defer to any interpretation of a statute that was not wrong beyond a reasonable doubt.

The real problem with Holmes is that he was a common lawyer who did not take the time to understand the meaning of the written law. All of his academic work concerned the common law of judges, and he spent almost two decades on the Massachusetts Supreme Judicial Court, which had a heavy common law docket. He was elevated to the Supreme Court of the United States when he was 61—a relatively old age for appointment.

It is striking that his most famous dissent (Lochner) is a rhetorical tour de force, yet it offered no analysis of what the relevant portions of the 14th Amendment meant, other than to say for effect that they did not “incorporate Herbert Spencer’s Social Statics.” (No one, of course, was arguing that they did.) Even his test for judicial restraint was less textually based than that of his contemporary, Thayer. Thayer wanted the Court to defer to any reasonable interpretation of the text. Holmes wanted to defer so long as the law the legislature enacted did not make him “puke.” A real contradiction, therefore, is his very subjective test for unconstitutionality, as against his view that the common law had evolved to make decisions on the basis of objective tests. For instance, the common law treats the standard of negligence as related to the care a “reasonable man” would take, ignoring the limitations and peculiarities of the individuals involved in the case

Then, too, when relatively late in his career, Holmes did decide to enforce the Free Speech Clause of the First Amendment, this was not due to any revelations about its meaning. Instead, he was persuaded on instrumental grounds that the proof of the truth of an idea is its power to get accepted in the market place. This justification is very different from the best historical ground for supporting a broad interpretation of the First Amendment, which lies in understanding it as a protection of a natural right—a kind of right Holmes detested.

Chief Justice Howard Taft himself complained that his colleague did not seem much interested in legal text. And Taft acutely observed that Holmes did not have the “experience of affairs in government” that might have compensated for this indifference.

Budiansky misses this fundamental problem with Holmes, being content to praise him as a founder of living constitutionalism, whose practitioners indeed often do neglect the text. But like many other living constitutionalists, Holmes never offered a theory about why the original meaning should not be binding. While his ideas about the common law still command respect today, his constitutional law contributions are much shallower. Some of his constitutional results still guide the Court, but he has not left behind an enduring theory of constitutional jurisprudence.

Reader Discussion

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on August 30, 2019 at 09:48:20 am

"... but he has not left behind an enduring theory of constitutional jurisprudence."

Perhaps, he did.

The devolution of "constituent" law into "common" law, i.e. judge made, living constitutionalism.

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Image of gabe
on August 30, 2019 at 11:24:07 am

"We should think of the first amendment as protecting the transmission and reception (flow) of information, a type of property just as important to capitalist commerce as land and the means-of-production."

And what provides the most information about a person--their hair length, hair style, hair color, clothing, accessories, etc. (When you know this about a person, you can advertise to them and sell them something--because you have discovered their identity.) Which is why a first amendment activist should be most protective of the right of all public and private school students to wear what they want, wear their hair the way and length they want, etc. because this tells others information about that person that they cannot get from a conversation--because most people at school will not have a genuine and/or honest conversation with you, especially if you're not in their cliche.

And once you, Professor McGinnis, start trying to outlaw all public- and private-school uniforms, we will totally believe you are actually pro-free-speech and not just a crony capitalist never-trumper.

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Norwegian Kroner
on August 30, 2019 at 13:54:50 pm

So "identity", whatever the hecck that ACTUALLY is, may be ascertained with virtual certainty by a mere glance at one's fashion IQ?

So what accounts for the likes of Wizards such as I who as the situation demands alternatively sports long hair and then a crewcut depending upon which style is more deceiving to my prey.
And surely, i am not always to be found wearing a long laboratory stained flowing gown and cape.

YET, I remain at heart a WIZARD.

Your incantations against the modest law professor McGinnis is in need of some new ingredients - perhaps, essence of frog's warts and bat guano will help.

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gargamel rules smurfs
on September 01, 2019 at 16:57:05 pm

Hmmmm, human beings capacity to believe conflicting ideas with complete certainty and the ill suited capacity of intellectual argument to convince humans of the truth! (some humans maybe)

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Image of Anthony
on September 04, 2019 at 09:27:32 am

[…] battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence. Holmes: An Uncommon Common Lawyer, but No Constitutionalist syndicated from […]

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