OLIVER WENDELL HOLMES JR. (March 8, 1841 – March 6, 1935) was an
American jurist who served as an Associate
Profoundly influenced by his experience fighting in the American
Civil War , Holmes helped move American legal thinking towards legal
realism , as summed up in his maxim: "The life of the law has not been
logic; it has been experience." Holmes espoused a form of moral
skepticism and opposed the doctrine of natural law , marking a
significant shift in American jurisprudence. As he wrote in one of his
most famous decisions, his dissent in _Abrams v.
* 1 Early life
* 1.1 Civil War
* 2 Legal career
* 2.1 Lawyer and state judge
* 2.2 The Common
* 3 Supreme Court
* 3.1 Overview
* 3.2 Noteworthy rulings
* 3.2.1 _Otis v. Parker_ * 3.2.2 _Schenck v. United States_ * 3.2.3 _Abrams v. United States_ * 3.2.4 _Silverthorne Lumber Co. v. United States_ * 3.2.5 _Buck v. Bell_
* 4 Jurisprudential contributions
* 4.1 Critique of formalism
* 5 Speeches and letters
* 5.1 Speeches * 5.2 Letters
* 6 Retirement, death, honors and legacy * 7 In popular culture * 8 See also * 9 References * 10 External links
Holmes was born in
During his senior year of college, at the outset of the American
Civil War , Holmes enlisted in the fourth battalion, Massachusetts
militia, then received a commission as first lieutenant in the
Twentieth Regiment of
Holmes is said to have shouted to Lincoln to take cover during the Battle of Fort Stevens , although this is commonly regarded as apocryphal. Holmes himself expressed uncertainty about who had warned Lincoln ("Some say it was an enlisted man who shouted at Lincoln; others suggest it was General Wright who brusquely ordered Lincoln to safety. But for a certainty, the 6 foot 4 inch Lincoln, in frock coat and top hat, stood peering through field glasses from behind a parapet at the onrushing rebels....") and other sources state he likely was not present on the day Lincoln visited Fort Stevens.
Holmes received a brevet (honorary) promotion to colonel in
recognition of his services during the war. He retired to his home in
LAWYER AND STATE JUDGE
Oliver Wendell Holmes Jr. about 1872, age 31
In the summer of 1864, Holmes returned to the family home in Boston,
wrote poetry and debated philosophy with his friend William James,
pursuing his debate with philosophic idealism, and considered
reenlisting. But by the fall, when it became clear that the war would
soon end, Holmes enrolled in the
Harvard Law School , "kicked into the
law" by his father, as he later recalled. He attended lectures there
for a single year, reading extensively in theoretical works, and then
clerked for a year in his cousin Robert Morse's office. He was
admitted to the bar in 1866, and after a long visit to London, to
complete his education, went into law practice in Boston. He joined a
small firm, and in 1872 married a childhood friend, Fanny Bowditch
Dixwell, buying a farm in Mattapoisett,
Whenever he could, Holmes visited London during the social season of
spring and summer, and during the years of his work as a lawyer and
Holmes practiced admiralty law and commercial law in
THE COMMON LAW
_The Common Law_ has been continuously in print since 1881, and remains an important contribution to jurisprudence. The book also remains controversial, for Holmes begins by rejecting various kinds of formalism in law. In his earlier writings he had expressly denied the utilitarian view that law was a set of commands of the sovereign, rules of conduct that became legal duties. He rejected as well the views of the German idealist philosophers, whose views were then widely held, and the philosophy taught at Harvard, that the opinions of judges could be harmonized in a purely logical system. In the opening paragraphs of the book, he famously summarized his own view of the history of the common law:
"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."
In the book, Holmes set forth his view that the only source of law, properly speaking, was a judicial decision enforced by the state. Judges decided cases on the facts, and then wrote opinions afterward presenting a rationale for their decision. The true basis of the decision was often an "inarticulate major premise," however. A judge was obliged to choose between contending legal arguments, each posed in absolute terms, and the true basis of his decision was sometimes drawn from outside the law, when precedents were lacking or were evenly divided.
The common law evolves because civilized society evolves, and judges
share the common preconceptions of the governing class. These views
endeared Holmes to the later advocates of legal realism , and made him
one of the early founders of law and economics jurisprudence. _The
Common Law_ is the only major scholarly work written by a practicing
attorney. Holmes famously contrasted his own scholarship with the
abstract doctrines of
Christopher Columbus Langdell , dean of Harvard
STATE COURT JUDGE
"We cannot all be
Holmes was considered for a federal court judgeship in 1878 by
Rutherford B. Hayes , but
During his service on the
He also published an address, " The Path of the Law ," in which he enlarged upon his view of the law from the perspective of a practitioner concerned for the interests of his client, who might be a bad man unconcerned with moral absolutes.
SUPREME COURT JUSTICE
Holmes's Supreme Court nomination
On August 11, 1902, President
Holmes was known for his pithy, short, and frequently quoted opinions. In more than twenty-nine years on the Supreme Court bench, he ruled on cases spanning the whole range of federal law. He is remembered for prescient opinions on topics as widely separated as copyright, the law of contempt, the antitrust status of professional baseball, and the oath required for citizenship . Holmes, like most of his contemporaries, viewed the Bill of Rights as codifying privileges obtained over the centuries in English and American common law, and was able to establish that view in numerous opinions of the Court. He is considered one of the greatest judges in American history, and embodies for many the traditions of the common law, which are now challenged by Originalists who insist the text of the Constitution trumps any common law precedents that depart from the original understanding of its meaning.
From Taft's departure on February 3, 1930 until Charles Evans Hughes
took office on February 24, 1930, Holmes briefly acted as the Chief
_Otis V. Parker_
Beginning with his first opinion for the Court, in _Otis v. Parker_, Holmes declared that "due process of law ," the fundamental principle of fairness, protected people from unreasonable legislation, but was limited to only those fundamental principles enshrined in the common law and did not protect most economic interests. _ A version of the article that influenced Holmes's Abrams_ dissent
_Schenck V. United States_
In a series of opinions surrounding the World War I Espionage Act of
1917 and the Sedition Act of 1918, he held that the freedom of
expression guaranteed by federal and state constitutions simply
declared a common-law privilege for speech and the press, even when
those expressions caused injury, but that privilege would be defeated
by a showing of malice, or intent to do harm. Holmes came to write
three unanimous opinions for the Supreme Court that arose from
prosecutions under the 1917 Espionage Act because in an earlier case,
Baltzer v. United States, he had circulated a powerfully expressed
dissent, when the majority had voted to uphold a conviction of
immigrant socialists, who had circulated a petition criticizing the
draft. Apparently learning that he was likely to publish this dissent,
the Government (perhaps alerted by
_Abrams V. United States_
Later that year, however, in _Abrams v.
hen men have realized that time has upset many fighting faiths, they may come to believe . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out. That, at any rate, is the theory of Constitution. It is an experiment, as all life is an experiment.
In writing this dissent, Holmes may have been influenced by Zechariah Chafee 's article "Freedom of Speech in War Time." Chafee had criticized Holmes's opinion in _Schenck_ for failing to express in more detail and more clearly the common-law doctrines upon which he relied. In his Abrams dissent, Holmes did elaborate somewhat on the decision in _Schenck_, roughly along the lines that Chafee had suggested. Although Holmes evidently believed that he was adhering to his own precedent, some later commentators accused Holmes of inconsistency, even of seeking to curry favor with his young admirers. In _Abrams_, the majority opinion did rely on the clear-and-present-danger formulation of _Schenck_, claiming that the leaflets showed the necessary intent, and ignoring the point that they were unlikely to have any effect. In later opinions, the Supreme Court departed from this line of reasoning where the validity of a statute was in question, adopting the principle that a legislature could properly declare that some forms of speech posed a clear and present danger, regardless of the circumstances in which they were uttered. Holmes continued to dissent.
_Silverthorne Lumber Co. V. United States_
In 1920, in the case _Silverthorne Lumber Co. v.
_Buck V. Bell_
In 1927, Holmes wrote the 8–1 majority opinion in _ Buck v. Bell _ case that upheld the Virginia Sterilization Act of 1924 and the forced sterilization of Carrie Buck who was claimed to be mentally defective. Although later scholarship has shown the suit was collusive, and Carrie Buck was probably of normal intelligence, the record before the Supreme Court showed only that she had received a proper hearing in which she was represented by a competent guardian, and was able to press her suit in the federal courts. She apparently had received the procedures required by due process of law in ample measure. The argument made on her behalf was principally that the statute requiring sterilization of institutionalized persons was unconstitutional, itself a violation of what today is called "substantive due process." Holmes repeated familiar arguments that statutes would not be struck down if they appeared on their face to have a reasonable basis. In support of his argument that the interest of "public welfare" outweighs the interest of individuals in their bodily integrity, he argued:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes . Three generations of imbeciles are enough.
Although the opinion and eugenics remains controversial, the decision
in the case still stands. _Buck v. Bell_ was cited as a precedent by
the opinion of the court (part VIII) in _
Roe v. Wade
CRITIQUE OF FORMALISM
Holmes in his earliest writings established a lifelong belief that
the decisions of judges were consciously or unconsciously
result-oriented, and reflected the evolving mores of the class and
society from which judges were drawn. Holmes accordingly argued that
legal rules are not deduced through formal logic but rather emerge
from an active process of human self-government. He explored these
theories in his 1881 book _The Common
Central to his thought was the notion that the law, as it had evolved in modern societies, concerned with the material results of a defendant's actions. A judge's task was to decide which of two parties before him would bear the cost of an injury. Holmes argued that the evolving common law standard was that liability would fall upon a person whose conduct reflected prudence of a "reasonable man." If a construction worker throws a beam onto a crowded street:
…he does an act which a person of ordinary prudence would foresee is likely to cause death..., and he is dealt with as if he foresaw it, whether he does so in fact or not. If a death is caused by the act, he is guilty of murder. But if the workman has a reasonable cause to believe that the space below is a private yard from which everyone is excluded, and which is used as a rubbish-heap, his act is not blameworthy, and the homicide is a mere misadventure.
This "objective standard" adopted by common-law judges, Holmes thought, reflected a shift in community standards , away from condemnation of a person's act toward an impersonal assessment of its value to the community. In the modern world, the advances made in biology and the social sciences should allow a better conscious determination of the results of individual acts and the proper measure of liability for them. This belief in the pronouncements of science concerning social welfare, although he later doubted its applicability to law in many cases, accounts for his enthusiastic endorsement of eugenics in his writings, and his opinion in the case of _Buck v. Bell _.
In 1881, in _The Common Law_, Holmes brought together into a coherent
whole his earlier articles and lectures concerning the history of the
common law, judicial decisions in England and the United States, which
he interpreted from the perspective of a practicing lawyer. What
counted as law, to a lawyer, was what judges did in particular cases.
Holmes therefore brought himself into constant conflict with scholars who believed that legal duties rested upon "natural law ," a moral order of the kind invoked by Christian theologians and other philosophic idealists. He believed instead "that men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite...." :49 "The common law is not a brooding omnipresence in the sky...." Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principles, Holmes said that, "he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." :458
His belief that law, properly speaking, was a set of generalizations
from what judges had done in similar cases, determined his view of the
Constitution of the
"The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth."
Holmes also insisted on the separation of "ought" and "is," which are obstacles in understanding the realities of the law. :457 "The law is full of phraseology drawn from morals, and talks about _rights_ and _duties_, _malice_, _intent_, and _negligence_—and nothing is easier in legal reasoning than to take these words in their moral sense." :458 :40 "Therefore nothing but confusion can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law." :40 Holmes said, "I think our morally tinted words have caused a great deal of confused thinking." :179
Nevertheless, in rejecting morality as a form of natural law outside
of human enactments, and superior to them, Holmes was not rejecting
moral principles that were the _result_ of enforceable law. "The law
is the witness and external deposit of our moral life. Its history is
the history of the moral development of the race. The practice of it,
in spite of popular jests, tends to make good citizens and good men.
When I emphasize the difference between law and morals I do so with
reference to a single end, that of learning and understanding the
law." :457 Holmes insistence on the material basis of law, on the
facts of a case, has led some to characterize him as unfeeling,
REPUTATION AS A DISSENTER
Although Holmes did not dissent frequently — during his 29 years of
service, he wrote only 72 separate opinions, whereas he penned 852
majority opinions —, his dissents were often prescient and acquired
so much authority that he became known as "The Great Dissenter." Chief
SPEECHES AND LETTERS
Only Holmes's legal writings were readily available during his life
and in the first years after his death, but he confided his thoughts
more freely in talks, often to limited audiences, and more than two
thousand letters that have survived. Holmes's executor, John Gorham
Palfrey, diligently collected Holmes's published and unpublished
papers and donated them (and their copyrights) to Harvard
Holmes's speeches were divided into two groups: public addresses,
which he gathered into a slim volume, regularly updated, that he gave
to friends and used as a visiting card, and less formal addresses to
men's clubs, dinners, law schools, and Twentieth Regiment reunions.
All of the speeches are reproduced in the third volume of _The
Collected Works of
Why should you row a boat race? Why endure long months of pain in preparation for a fierce half-hour. . . . Does anyone ask the question? Is there anyone who would not go through all it costs, and more, for the moment when anguish breaks into triumph—or even for the glory of having nobly lost? :473
In the 1890s, at a time when "scientific" anthropology that spoke of racial differences was in vogue, his observations took on a bleakly Darwinist cast:
I rejoice at every dangerous sport which I see pursued. The students at Heidelberg, with their sword-slashed faces, inspire me with sincere respect. I gaze with delight upon our polo-players. If once in a while in our rough riding a neck is broken, I regard it not as a waste, but as a price well paid for the breeding of a race fit for headship and command.
This talk was widely reprinted and admired at the time, and may have
contributed to the popular name given by the press to the 1st United
States Volunteer Cavalry (the "Rough Riders") during the
Many of Holmes's closest male friends were in England and he
corresponded with them regularly and at length, speaking usually of
his work. Letters to friends in England such as
In a letter to a contemporary, Holmes made this comment on international comparisons: "Judge not a people by the ferocity of its men, but by the steadfastness of its women."_ _
RETIREMENT, DEATH, HONORS AND LEGACY
1978 postage stamp issued by the U.S. Post Office to commemorate Oliver Wendell Holmes Jr.
Holmes was widely admired during his last years, and on his ninetieth birthday was honored on one of the first coast-to-coast radio broadcasts, during which the Chief Justice, the Dean of Yale Law School, and the president of the American Bar Association read encomia; the Bar Association presented him with a gold medal. Notably, Alger Hiss clerked for Holmes during his last year on the Court. Holmes served on the court until January 12, 1932, when his brethren on the court, citing his advanced age, suggested that the time had come for him to step down. By that time, at 90 years of age, he was the oldest justice to serve in the court's history. On his ninety-second birthday, newly inaugurated President Franklin Delano Roosevelt and his wife Eleanor called on Holmes at his house in Washington.
Holmes died of pneumonia in
Holmes's papers, donated to
Harvard Law School , were kept closed for
many years after his death, a circumstance that gave rise to somewhat
fanciful accounts of his life.
Catherine Drinker Bowen 's
fictionalized biography _Yankee from Olympus_ was a long-time
bestseller, and the 1951
Holmes\' summer house in Beverly,
IN POPULAR CULTURE
* American actor
Louis Calhern portrayed Holmes in the 1946 play
_The Magnificent Yankee_, with
This responsibility will not be found only in documents that no one contests or denies. It will be found in considerations of a political or social nature. It will be found, most of all in the character of men. This was in relation to Holmes' support for eugenics laws in the United States, which Rolfe argued were not different in principle from the Nazi laws. Rolfe also quoted Holmes in _ Buck v. Bell _, "Three generations of imbeciles are enough."
* Holmes appears as a minor character in
Bernard Cornwell 's novels
_Copperhead_ and _The Bloody Ground_, the second and fourth volumes of
Starbuck Chronicles _; the novels portray the battles of Ball\'s
Bluff and Antietam , in both of which the young Lieutenant Holmes was
wounded in action.
* The 1960s television sitcom , _
* Demographics of the Supreme Court of the
* ^ Supporting this connection is his brief membership in the informal Metaphysical Club which met in the 1879s, and included Henry and William James, and the philosopher Charles Peirce.Menand, Louis (2002). _The Metaphysical Club: A Story of Ideas in America_.
* ^ "Federal Judicial Center: Oliver Wendell Holmes". 2009-12-11.
* ^ _A_ _B_ _C_ _D_ Holmes, Oliver Wendell Jr. (1881). _The Common
Law_. I. Boston:
Little, Brown and Company .
* ^ _Abrams v. United States_, 250 U.S. 616, 630 (1919).
* ^ Louis Menand, ed., _Pragmatism: A Reader_ New York: Vintage
Books, 1997, pp. xxix.
* ^ Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars".
_Journal of Legal Studies_. 29 (1): 409–426. doi :10.1086/468080 .
* ^ Sheldon Novick, Honorable Justice: The Life of Oliver Wendell
Holmes, Little, Brown and Company, 1989, p. 26.
* ^ Novick pp. 34-35.
James M. McPherson
* Abraham, Henry J., _Justices and Presidents: A Political History
of Appointments to the Supreme Court. 3d. ed._ (New York: Oxford
University Press , 1992). ISBN 0-19-506557-3 .
* Brown, Richard Maxwell, "No Duty to Retreat: Violence and Values
in American History and Society." (
University of Oklahoma Press ,
Norman Publishing Division of the University, by arrangement with
Oxford University Press, Inc. 1991). ISBN 0-8061-2618-3
* Cushman, Clare, _The Supreme Court Justices: Illustrated
Biographies,1789-1995_ (2nd ed.) (
Supreme Court Historical Society ),
Congressional Quarterly Books, 2001) ISBN 1-56802-126-7 ; ISBN
* Frank, John P., _The Justices of the