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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..

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