08 March 2001

Oliver Wendell Holmes

"You can't call it cheatin', she reminds me of you"

-- my nominee for the most poorly received line of all time, from a Gin Blossoms song

National Review Online saw fit today to publish a glowing tribute to Oliver Wendell Holmes on his 160th birthday. The author mistakenly finds Holmes to be a "godfather of the modern concept of judicial restraint." The author comes to this conclusion from, among other things, his reading of the Holmes dissent in Lochner v. New York. I about fell out of my chair when I read that, not to mention that I was reading such a laugher on NRO! Holmes' dissent in Lochner, when read in its context, was not only an example of results-oriented jurisprudence (the opposite of judicial restraint), but it was a dissent which legal reasoning was almost entirely irrelevant to the case.

To quote from the ongoing work on my dissertation:

the majority [in Lochner] did not contend that liberty of contract was inviolable, but instead argued that legislative interference with liberty must be reasonably related to a police powers end and must not be arbitrary. The majority opinion did not specifically refer to class legislation, which sets the stage for Holmes to knock down a straw man, but its allusion to the legislature�s �other motives� as well as its use of the term arbitrary -- to be understood in the legal context established in this chapter -- clearly falls within the Court�s longstanding police powers doctrine. Holmes feigns ignorance of that tradition -- an ignorance that surely was not possible to such a well educated, brilliant legal mind -- in arguing that any legislation somehow related to health must always be upheld because it represents the majority will. In essence, the majority�s omission of an explicit discussion of class politics -- an omission that was probably less an oversight than simply viewed as unnecessary by the majority because of the well established and articulated judicial doctrine -- set the stage for Holmes to create a straw man, his notion that a majority of conservative justices sought to impose laissez faire economics via judicial fiat and the 14th amendment. Holmes promptly knocked down that straw man, and today, his opinion is viewed as the reasonable voice against what is now thought of as the high water mark of conservative judicial activism. (Chapter 2 of the beast)

I about fell out of my chair because one finds the mistaken interpretation of Holmes' dissent everywhere -- in American government texts, in Con law texts, and even on NRO, a place that damn well ought to know better. When I run across things like this, it motivates me to work on the dissertation, which (admittedly) hasn't gotten much attention lately. Not that I expect it really to change any minds, but it will be satisfying finally to work out all of the problems and present my final argument.

I would conclude that I agree with the NRO author in one sense. Although he did not mean it this way, the author is right to call Holmes the "godfather" of a "modern" judicial doctrine. Holmes was a godfather to the legal realism movement (or Progressive legal theory, which is what I call it in my dissertation) that rejected the natural right basis of the American Founding (and American constitutionalism more broadly) in favor of an historicist (or scientific) understanding, which necessarily led to a decoupling of the Declaration and the Constitution. This was a thoroughly MODERN (quite nearly postmodern) outlook, in a political-philosophical sense. I'm sure this is not what the Holmes admirer meant, however. :)

[Posted @ 07:45 PM CST]