by Matt Barr

Elementary Holmes

Evidently Jonah Goldberg said something nice about Oliver Wendell Holmes, and Robert Alt gently corrected him. Alt says,

OWH was a rabid moral relativist, a fan of eugenics (remember his infamous “three generations of idiots is enough,” which accords with his personal writings on the topic), and he is recognized now by scholars as leading a campaign against the natural law, which students of his often clothed as attacks on legal formalism. His legal reputation is founded mostly on his ability to offer a pithy statement of the law—even if, as was too often the case, there was very little law supporting the pith.

On the occasion of Holmes' retirement, or possibly death, which each occurred in 1932, Mencken pithed all over OWH, too (paragraph breaks added):

The average American judge, as everyone knows, is a mere rabbinical automaton, with no more give and take in his mind than you will find in the mind of a terrier watching a rathole. He converts the law into a series of rubber-stamps, and brings them down upon the scalped skulls of the just and unjust alike. The alternative to him, as commonly conceived, is quite as bad -- an uplifter in a black robe, eagerly gulping every new brand of Peruna that comes out, and converting his pulpit into a sort of soap-box.

Mr. Justice Holmes was neither, and he was better than either. He was under no illusions about the law. He knew very well that its aim was not to bring in the millenium, but simply to keep the peace. But he believed that keeping the peace was an art that could be practised in various ways, and that if one of them was by using a club then another was by employing a feather.

Thus the Liberals [ed.: referring to "classical" liberals, of course -- equivalent, probably, to today's libertarians] who long for tickling with a great and tragic longing, were occasionally lifted to the heights of ecstasy by the learned judge's operations, and in fact soared so high that they were out of earshot of the next day's thwack of the club. I suspect that Dr. Holmes himself, when he heard of their enthusiasm, was quite as much amused as flattered.

Reminds me of Mr. Justice Kennedy today, with his sonorous "freedom extends beyond spatial bounds" nonsense, which sends libertarians swooning and applauding the assertion of federal oversight authority over the most private of relationships.

Another part of the probably-obituary reminds one of some of the criticism of Mr. Justice Scalia:

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.

I wonder what Henry really thought.

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