H.L. Mencken on Justice Holmes
The great contrarian's piece is here. A sample:
"There is even more surprising stuff in the opinions themselves. In three Espionage Act cases, including the Debs case, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside by any jury that has been sufficiently alarmed by a district attorney itching for higher office. In Fox v. the State of Washington, we learn that any conduct "which shall tend to encourage or advocate disrespect for the law" may be made a crime, and that the protest of a man who believes that he has been jailed unjustly, and threatens to boycott his persecutors, may be treated as such a crime. In Moyer v. Peabody, it appears that the Governor of a state, "without sufficient reason but in good faith," may call out the militia, declare martial law, and jail anyone he happens to suspect or dislike, without laying himself open "to an action after he is out of office on the ground that he had no reasonable ground for his belief." And, in Weaver v. Palmer Bros. Co. there is the plain inference that in order to punish a theoretical man, A, who is suspected of wrong-doing, a State Legislature may lay heavy and intolerable burdens upon a real man, B, who has admittedly done no wrong at all."
"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."
"The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased, save indirectly, to be even the creature of the people: it is the creature, in the main, of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty. Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle- a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism."
UPDATE: a friend once remarked that Holmes is one of the clearer cases where you can trace a judge's jurisprudence to his life experiences. An ardent young abolitionist, he marched off to the Civil War happy that he would be helping to accomplish that end. His first combat ended with a bullet thru the lung in a botched fight, and him writing home that he was coughing up blood and probably dying. Followed by four more years of service, risk, and deprivation.
And his jurisprudence: an exceptionally powerful disdain for theory (e.g., the one that he had so embraced and in whose service he found misery and near death), an emphasis on the pragmatic, no sympathy at all for people who might impede a war even to a minute degree, not much worry about human life, etc..
"Three generations of morons/imbeciles is enough."
- Oliver Wendell Holmes.
Posted by: Letalis Maximus, Esq. at August 20, 2009 10:54 AM
If the right pressure could be applied to him he would be cheerfully in favor of ____amy, ____ology or ______ism. Sounds like California to me!
Posted by: Anonymous at August 20, 2009 12:01 PM
Ah-yes judicial realism at its finest. Tell me why so many people think this guy is a great judge?
Posted by: bombloader at August 20, 2009 02:04 PM
Holmes was an incomparable polemicist, but a poor judge. He would be right at home on the Ninth District, where he could use his rhetorical gifts to justify virtually any infringement of the Bill of Rights. As a defense attorney he would be spectacular, but on the Supreme Court? Well, as Mencken said, "...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."
Posted by: Turk Turon at August 20, 2009 09:26 PM
"...polygamy, astrology or cannibalism."
Gives a whole new meaning to PACs, don't it? :)
Posted by: Virginian at August 21, 2009 12:05 AM
The great threshold divide in legal philosophy is between the legal positivists who think all law is transient, local and determined solely by what the majority thinks it should be and the legal naturalists who think that law should be ruled by principles of natural justice. Holmes is the quintessential legal positivist.
Unfortunately,positivism is the overwhelming view today. What the legal positivists fail to recognize is that they are the intellectual heirs of Thrasymachus and that their view is reducible to "might makes right."
Posted by: Davis Nelson at August 21, 2009 09:00 AM
When I was in law school I believed Holmes was the greatest judge ever. I continued to believe that for another fifteen years until I began teaching Constitutional Law myself. At that point I realized he was a Great Man, a war hero, and a brilliant writer . . . but a TERRIBLE judge who allowed his antipathy to the under-class, and his (justified) distaste for war protesters, as examples, to color his decisions. His terse judicial epigrams failed to provide guidance for later judicial decisions. I give him credit for hewing to the then-and-now controversial idea that unelected judges should give the greatest credence to legislative action. Holmes still has a special place in my pantheon of heroes, but it is in a different hall.
Posted by: The Little Coach at August 21, 2009 10:51 AM
Holmes must never have read Ex Parte Milligan.
The is no delegation of authority, and because we have a government that can ONLY exercise delegated authority, to suspend ANY part of the Constitution EXCEPT for habeas corpus. IF hc had to be allowed then logic dictates that ALL other actions have to be allowed through DIRECT, EXPLICIT delegations of power. The allowance of the suspension of habeas corpus PROVES beyond any doubt that the other powers confer no authority to suspend rights or ANYTHING else OR the grant is simply superfluous and evidence that the Framers were idiots who had no understanding of the government they created.
Holmes is like most every other judge that ever sat on the BIG bench. An arse, an idiot, and totally lacking in knowledge of how and what the federal government was/is.
Tiocfaidh ar la!
Posted by: fwb at August 21, 2009 04:21 PM