Oliver Wendell Holmes

Oliver Wendell Holmes

Oliver Wendell Holmes Jr. Born to a prominent Boston family, Holmes was wounded at the Civil War battles of Ball’s Bluff, Antietam and Chancellorsville. After graduating from Harvard Law School in 1866, he prepared a series of lectures that were published as “The Common Law” in 1881. Holmes then served on the Supreme Judicial Court of Massachusetts from 1882 until his appointment to the U.S. Supreme Court in 1902. During his 30 years with the country’s highest court, he became known for his “clear and present danger” argument for the limitation of free speech and his convincing dissents.

Holmes was the son of an important Boston family. Through his father, a distinguished doctor and writer-poet, he was brought into contact with leading New England thinkers, drawing from them not only ideas but also the desire to achieve great things intellectually.

Holmes graduated from Harvard College in 1861, but the most formative influence on his life was his service in the Civil War. He was seriously wounded three times, experiences that led him to develop a harsh, unsentimental view of life as endless conflict, with an individual’s destiny in the hands of an almost whimsical Fate.

After graduating in 1866 from the Harvard Law School (which he found a notably uninspiring institution), Holmes briefly practiced law and then devoted the next decade to the preparation of lectures on the history and structure of the common law. These lectures, published as The Common Law in 1881, brought him lasting fame. He emphasized both that the ‘life of the law has not been logic: it has been experience’ and that the law develops according to the ‘felt necessities of the time’ rather than according to any set of deductive premises.

After teaching briefly at the Harvard Law School, Holmes was appointed in 1882 to the Supreme Judicial Court of Massachusetts where he served until President Theodore Roosevelt appointed him to the U.S. Supreme Court in 1902. He served on that Court until 1932. Although many of his most notable opinions were written as dissents, he was probably the most important member of the Court during his long tenure because these opinions reflected and shaped the consciousness of the time. Although he was far more a social Darwinist than a social reformer, his very respect for brute power led him to give state legislatures and Congress vast discretion to legislate in behalf of their visions of the general welfare. He wrote powerful dissents in cases such as Lochner v. New York (1905), in which the Court struck down a New York law limiting the workweek of bakers, and Hammer v. Dagenhart (1918), in which the Court ruled invalid a congressional statute prohibiting child labor. Political progressives cited his views, which would become settled law after his death with the appointment by President Franklin D. Roosevelt of Felix Frankfurter and others who had drunk deeply from Holmes’s well.

Also contributing to his influence was his talent for the pithy aphorism. Thus, in Lochner, Holmes attacked the economic laissez-faire position of the majority by noting that ‘the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,’ and he went on to say that ‘the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.’ Perhaps his best-known phrase is from Schenck v. United States, where he introduced the ‘clear-and-present-danger’ test as a means of limiting the power of the state to restrict speech and illustrated it by reference to a person’s ‘falsely shouting fire in a theater.’ His later development of this test, coupled with his emphasis on a basically unregulated ‘marketplace of ideas,’ was seminal for the development of modern free-speech law.

His retirement in 1932 was a national event, and he has remained, along with John Marshall, among the best known of all those who have served on the Supreme Court.

The Reader’s Companion to American History. Eric Foner and John A. Garraty, Editors. Copyright © 1991 by Houghton Mifflin Harcourt Publishing Company. All rights reserved.


U.S. Permanent Committee for the Oliver Wendell Holmes Devise

The U.S. Permanent Committee for the Oliver Wendell Holmes Devise is a committee within the Library of Congress, established by Congress in 1955 after the late Associate Justice Oliver Wendell Holmes Jr. bequeathed a portion of his estate to the United States in 1935. The Congress used the gift to create a garden on the grounds of the U.S. Supreme Court and to establish the Committee to document and disseminate the history of the Court. The Committee is composed of five members - the Librarian of Congress and four additional members appointed by the President to serve eight-year terms. [1] As of October 2020, the Commission has published ten volumes detailing the history of the Supreme Court. [2]

Oliver Wendell Holmes, Jr., Associate Justice of the United States Supreme Court, died on March 6, 1935, his will contained the following residuary clause,

“All of the rest, residue and remainder of my property of whatsoever nature, wheresoever situate, of which I may die seized and possessed, or in which I may have an interest at the time of my death, I give, devise, and bequeath to the UNITED STATES OF AMERICA.” [3]

The value of the bequest was roughly $263,000 at the time of Holmes's death and it was President Franklin Roosevelt who recommended the gift be used to document and promote the law. In 1938 a committee of three Congressmen, three Senators, and three Supreme Court members recommended four options for the gift. The options were: (1) establish a collection of legal literature in the Library of Congress, (2) turning Holmes residence into a permanent memorial, (3) publishing Holmes writings, or (4) creating a memorial park in Washington dedicated to Holmes. Congress approved the third and fourth recommendations in 1940, however, World War II pre-empted execution of the plans. The matter was finalized in 1955 with Public Law 84-246 which established the Permanent Committee for the Oliver Wendell Holmes Devise to publish an official history of the Supreme Court. The Committee has four members appointed by the President as recommended by the Association of American Law Schools, the American Philosophical Society, the American Historical Association, and the Association of American Universities, with the Librarian of Congress serving as ex officio chairperson. [4] The series has not been published in volume order, the first published were, Volume 1: Antecedents and beginnings to 1801 and Volume 6: Reconstruction and reunion, 1864-88 in 1971. The most recent publication was Volume 12: The birth of the modern Constitution in 2006 and the volume covering the Earl Warren court was expected in 2017 but has yet to be published. [1]


The Most Powerful Dissent in American History

A smart new book reveals precisely how and why Oliver Wendell Holmes changed his mind about the first amendment.

If there is a more relevant or powerful passage in American law, I am not aware of it. Relevant because it expressed a universal concept -- free trade in ideas -- that 125 years after the Constitution was ratified still had not yet taken hold in our democracy. Powerful because it went beyond legal precepts to a fundamental fact of human existence: We all make mistakes. We all have good opinions and bad ones. None of us are right all the time. All of us at one point or another have to respect what someone else says. And life is an experiment from the moment we wake in the morning until the moment we lay our heads down at night.

It's a passage written 94 years ago that both explains and preserves our op-ed pages and the Internet, talk-radio shows, and blogs, in the brilliant blending of two American institutions that were not always destined to go together: the free market and free speech. It's a passage that both acknowledges human weakness and strives to master it, that recognizes the roiling diversity of American thought and seeks to make something clear and profound from it. From United States Supreme Court Justice Oliver Wendell Holmes in his dissent in Abrams v. United States:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- 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 safely can be carried out.

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Of course, the story of free speech in America neither begins nor ends with Abrams. But it is a clear pivot point. In that 1919 case, a dispute decided one year minus one day after the end of the first "war to end all wars," the United States Supreme Court sustained the convictions of five Russian-born men who were prosecuted under the Espionage Act of 1917, as it had been amended by the Sedition Act of 1918, for "provoking and encouraging" resistance to the government's war efforts (and its hostile maneuvers toward Russia) through a series of pamphlets.

Such prosecutions would be unthinkable today, not because modern officials embrace criticism more bravely than their predecessors but because we have come as a nation and as a people to acknowledge that the First Amendment's protections are (and ought to be) especially stout when it comes to dissent about the public workings of government. And that nearly universal acknowledgment, which has survived America's four major wars since World War I and guides the way we both conduct business and handle our own personal affairs, was born in Justice Holmes' dissent.

Just in time for your August beach reading, Thomas Healy, a former federal appeals court law clerk and reporter for The Baltimore Sun, has written an excellent book about how Justice Holmes, perhaps the most famous and influential justice of all time, came to write this passage -- and came around, at last, to a rousing defense of the First Amendment. Titled The Great Dissent: How Oliver Wendell Holmes Changed His Mind-- and Changed the History of Free Speech in America, the book is a fascinating glimpse into an art that seems lost in law and politics today: the art of changing one's mind.

In meticulous detail, Healy tells us how the great jurist, who had staunchly upheld criminal convictions in free speech cases just months before, changed his mind in Abrams. He changed it because of an intense lobbying effort by his political friends and fellow judges. He changed it because he had been reading the work of legal and political philosophers in Europe, both living and dead. He changed it because he came gradually to realize how broadly the Justice Department was relying upon federal statutes to punish even that dissent which was obviously unlikely to undermine the government's ability to function.

Healy begins his book with an anecdote about a visit Justice Holmes received at home from three of his fellow justices, after he had distributed his dissent in Abrams but before he would publicly announce it. What transpired in that meeting isn't just "a remarkable piece of constitutional history," as Healy puts it, but remarkable for what it suggests about the way the Supreme Court does (or does not) operate today. Can you imagine Justices Scalia, Thomas and Alito visiting Justice Anthony Kennedy in this fashion? I cannot. From Healy's book, on the 1919 Court's initial reaction to Holmes' words:

No one else on the Court wrote like this. Only Holmes could translate the law into such stirring, unforgettable language. Yet even by his high standards this was unusually fine, and his colleagues worried about the effect it might have. Although the war had ended a year earlier, the country was still in a fragile state. There had been race riots that summer, labor strikes that fall. A bomb had exploded on the attorney general's doorstep-- the opening strike, the papers warned, in a grand Bolshevik plot. A dissent like this, from a figure as venerable as Holmes, might weaken the country's resolve and give comfort to the enemy.

The nation's security was at stake, the justices told Holmes. As an old soldier, he should close ranks and set aside his personal views. They even appealed to [Holmes' wife] Fanny, who nodded her head in agreement. The tone of their plea was friendly, even affectionate, and Holmes listened thoughtfully. He had always respected the institution of the Court and more than once had suppressed his own beliefs for the sake of unanimity. But this time he felt a duty to speak his mind. He told his colleagues he regretted he could not join them, and they left without pressing him further.

Three days later, Holmes read his dissent in Abrams v. United States from the bench. As expected, it caused a sensation. Conservatives denounced it as dangerous and extreme. Progressives hailed it as a monument to liberty. And the future of free speech was forever changed.

There have been other instances where a justice changed his mind in a case of profound constitutional import. As Harvard Law School professor Laurence Tribe reminded me this week, Justice Potter Stewart shifted on the issue of reproductive autonomy from dissent in Griswold v. Connecticut in 1965 to the majority in Roe v. Wade in 1973. Justice William J. Brennan shifted on obscenity standards from Roth v. United States in 1957 to Paris Adult Theatre v. Slaton in 1973. Justice Harry Blackmun belatedly changed his mind about the constitutionality of the death penalty. Then there was Justice Owen Roberts' "switch in time" in West Coast Hotel v. Parrish in 1937. None come close to Holmes' "fighting faith" passage.

Judges, and politicians, are too often criticized for changing their minds. Are you not smarter today than you were 10 years ago? Twenty years ago? Have not life's many "experiments" given you wisdom that you did not previously have? The genius of Justice Holmes' dissent in Abrams wasn't just its eloquence it was "meta-ness." He was changing his mind about the need, the value, the glory, the benefit, of changing one's mind and of accepting the changing of other people's minds. Healy has written a magnificent book about a magnificent moment in American legal history -- and in the life of a magnificent man who was smart enough to understand just how wrong people can be.


History of the Court – Timeline of the Justices – Oliver Wendell Holmes, Jr., 1902-1932

OLIVER WENDELL HOLMES, JR., was born on March 8, 1841, in Boston, Massachusetts. He was graduated from Harvard College in 1861. Holmes served for three years with the Massachusetts Twentieth Volunteers during the Civil War. He was wounded three times. In 1866 he returned to Harvard and received his law degree. The following year Holmes was admitted to the bar and joined a law firm in Boston, where he practiced for fifteen years. Holmes taught law at his alma mater, edited the American Law Review, and lectured at the Lowe Institute. In 1881, he published a series of twelve lectures on the common law, which was translated into several languages. In 1882, while working as a full professor at Harvard Law School, Holmes was appointed by the Governor to the Supreme Court of Massachusetts. He served on that Court for twenty years, the last three as Chief Justice. On December 4, 1902, President Theodore Roosevelt nominated Holmes to the Supreme Court of the United States. The Senate confirmed the appointment four days later. Holmes served on the Supreme Court for twenty-nine years and retired on January 12, 1932. He died on March 6, 1935, two days short of his ninety-fourth birthday.


Oliver Wendell Holmes - HISTORY

The reader of this biographical profile will probably be wondering why the famous American jurist, Oliver Wendell Holmes, Jr., appears on the prominent Dutch American listing. Well, the answer is because his grandmother came from an impeccable Dutch American background. His paternal grandmother was Sarah Wendell, the daughter of a wealthy family. Her ancestry goes back to the first Wendell, Evert Jansen, who left Holland in 1640 and settled in Albany, New York. If you look through the phone book pages in Albany, New York today, you will find a plethora of Wendells, all distant cousins of Oliver Wendell Holmes.

Oliver Wendell Holmes, Jr. was appointed to the Supreme Court of the United States in 1902. He was nominated by another famous Dutch American, President Theodore Roosevelt, and his nomination passed the United States Senate unanimously. Holmes became one of the most widely cited United States Supreme Court justices in history. He would serve until 1932, when he was asked to resign because of his advanced age. Holmes, by that time, had reached the advance age of 90 years.

Holmes was born in Boston, Massachusetts, on March 8, 1841, and was the son of Oliver Wendell Holmes, Sr., and Amelia Lee Jackson, a noted abolitionist. As a young man he liked literature and graduated from Harvard University in 1861. But note that 1861 was the start of the Civil War. Holmes enlisted in the Massachusetts Militia. He rose to the rank of a first lieutenant, and saw much action in the Civil War. He was wounded at the Battle of Ball’s Bluff, at Antietam and at Fredericksburg, Virginia.

Following the war, Holmes returned to Harvard and studied law, and was admitted to the bar in 1866. He practiced law in Boston, and focused on admiralty law and commercial law for fifteen years. In 1870, just five years out of law school he became the editor of the “American Law Review”. Following that time period he published many papers on common law. He also published his well-regarded book, “The Common Law” in 1881.

In 1882, Holmes was appointed to a professorship at Harvard Law School. Shortly thereafter he was appointed to the Supreme Judicial Court of Massachusetts, and resigned from his Harvard appointment. In 1889, Holmes was appointed to chief Justice of the Massachusetts Supreme Court.

In 1902, President Theodore Roosevelt nominated Holmes to the United States Supreme Court. The United States Senate unanimously confirmed the nomination. For the next 30 years Holmes would be a member of the Court, and would become one of the most influential American common-law judges. Holmes viewed the Bill of Rights as codifying privileges obtained over the centuries in English and American law.

During his early years as a lawyer, prior to his Supreme Court years, Holmes would often spend time in London, England, during the social season of spring and summer. While there he became associated with the “sociological” school of jurisprudence in England. This movement would, a generation later, be known as the “legal realist” school in the United States.

Following his graduation from Harvard Law School, Holmes married his childhood friend, Fanny Bowditch Dixwell. Their marriage would last until her death in 1929. Unfortunately their marriage did not produce any children. They did, however, adopt and raise an orphaned cousin, named Dorothy Upham. Oliver Wendell Holmes, Jr., passed away on March 6, 1935, two day short of his 94th birthday. He was interred in Arlington National Cemetery.

Oliver Wendell Holmes, Jr. is recognized as one of the greatest justices of the United States Supreme Court. In his will, he also expressed his love and devotion to his country by leaving his estate to the United States government. He had stated earlier that taxes we pay to the government are a price we pay for being able to live in a civilized society.

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Holmesdale, Oliver Wendell Holmes Sr.'s Pittsfield estate, 'has history upon history upon history'

After being vacant for two years, the historic Holmesdale, poet Oliver Wendell Holmes Sr.'s historic 19th-century estate on Holmes Road in Pittsfield, was purchased in 2016 by two men from Florida, who are using it as a private residence.

Holmesdale, poet Oliver Wendell Holmes Sr.'s historic 19th-century estate on Holmes Road in Pittsfield, has had several owners since 1928, and the property has been subdivided many times over the past 91 years.

Oliver Wendell Holmes Sr., the father of U.S. Supreme Court Justice Oliver Wendell Holmes Jr., built the Holmesdale estate for use as a summer residence that he called Canoe Meadow. The estate, located across Holmes Road from Miss Hall's School in Pittsfield, originally consisted of 217 acres.

A postcard by the Detroit Publishing Co. depicts Holmesdale, the Oliver Wendell Holmes Sr. estate on Holmes Road in Pittsfield.

A real estate advertisement posted in The Berkshire County Eagle of June 25, 1863, lists the "Holmes Place," later known as Holmesdale, for sale.

PITTSFIELD — Henry Wadsworth Longfellow was a frequent visitor. Herman Melville lived just down the street.

Holmesdale, poet Oliver Wendell Holmes Sr.'s historic 19th-century estate on Holmes Road, has had its share of famous neighbors and visitors. And now it has new owners.

After being vacant for two years, the historic home was purchased in 2016 by two men from Florida, who are using it as a private residence.

"This house has history upon history upon history," said Michael Cabana, who bought the 16-acre estate from the Holmesdale Revocable Trust for $375,000 three years ago.

Holmesdale, built by Holmes in 1849 on what was then a much larger parcel of land, had been on the market for several years and was listed for as much as $2.3 million in 2007.

Former owners Arthur and Sylvia Stein, who bought the estate in 1974, tried to hold on to it as they got older and needed to downsize — "it meant an awful lot to them," said their daughter, Maxine Stein, of Northampton.

But, when the couple's health declined, they moved out in 2014. The listing eventually caught the eye of Cabana, who works for the Veterans Administration, and Michael Nicholas, a retired interior designer, who were living in Winter Park, Fla. Cabana, originally from Cumberland, R.I., had lived in Florida for 30 years and was thinking about coming back to New England when he learned that the house was available.

"I sold my home in Florida," he said. "I've always been interested in historic homes, and this fit the ticket."

Nicholas, who originally is from New York, was familiar with the area, from attending concerts at the former Music Inn in Lenox.

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"I always remembered how beautiful it was," he said, referring to the Berkshires.

Holmes (1809-1894), the father of U.S. Supreme Court Justice Oliver Wendell Holmes Jr., built the estate for use as a summer residence that he called Canoe Meadow. The estate, located across Holmes Road from Miss Hall's School, originally consisted of 217 acres, what remained of the 24,000 acres Holmes' great-grandfather, Col. Jacob Wendell, acquired when he laid out the township of Pontoosuck in 1738, the area that later became Pittsfield. After seven summers, Holmes sold the estate because it became too expensive to maintain, according to Eagle files. The Kernochan family, of Tuxedo Park, N.Y., who owned the estate from 1872 to 1928, renamed it Holmesdale.

Holmesdale has had several owners since 1928, and the property has been subdivided many times over the past 91 years. It contained 30 acres when the Stein family purchased the property from Miss Hall's 45 years ago. The property currently houses the main house, which now has eight rooms, according to Cabana and Nicholas, and a four-room guesthouse that the two men have begun to use as an Airbnb. Their property still runs down to the Housatonic River, Cabana said.

Despite the house being vacant for so long, Cabana said it was structurally sound when he bought it and that the majority of the $50,000 that he and Nicholas spent restoring the property went toward cosmetic improvements. The property also includes a pool, fountain and tennis court. It also has nine bathrooms.

"We were lucky that it's still in great shape," Cabana said.

Cabana and Nicholas have cleaned up the interior but have maintained several of the home's historic features. A portrait of Holmes hangs in a first-floor study. They also have placed a sign on the driveway's entrance that signifies the property is the former Holmesdale estate.


The Best Sentence in Atlantic History?

After the Battle of Antietam, Oliver Wendell Holmes wrote a gripping story about his search for his wounded son. But one of the most memorable lines had nothing to do with the Civil War.

In September 1862, the future Supreme Court Justice Oliver Wendell Holmes Jr. was one of 22,717 men who fell during the Battle of Antietam. His father, Oliver Sr., set out on an epic journey to find him and, a couple of months later, wrote about it for The Atlantic.

“My Hunt After the Captain” is an incredible firsthand account of what Maryland looked and felt like just after the bloodiest battle of the Civil War. Holmes describes what he saw on the streets of Frederick: “Delicate boys, with more spirit than strength, flushed with fever or pale with exhaustion or haggard with suffering, dragged their weary limbs along as if each step would exhaust their slender store of strength.” He notes what the ground looked like after the battle, with “dark red patches where a pool of blood had curdled and caked, as some poor fellow poured his life out on the sod.”

But there’s one especially memorable sentence that has nothing to do with the war. It comes near the beginning, as Holmes is recalling his train ride down from New England:

Many times, when I have got upon the cars, expecting to be magnetized into an hour or two of blissful reverie, my thoughts shaken up by the vibrations into all sorts of new and pleasing patterns, arranging themselves in curves and nodal points, like the grains of sand in Chladni's famous experiment,—fresh ideas coming up to the surface, as the kernels do when a measure of corn is jolted in a farmer's wagon,—all this without volition, the mechanical impulse alone keeping the thoughts in motion, as the mere act of carrying certain watches in the pocket keeps them wound up,—many times, I say, just as my brain was beginning to creep and hum with this delicious locomotive intoxication, some dear detestable friend, cordial, intelligent, social, radiant, has come up and sat down by me and opened a conversation which has broken my day-dream, unharnessed the flying horses that were whirling along my fancies and hitched on the old weary omnibus-team of every-day associations, fatigued my hearing and attention, exhausted my voice, and milked the breasts of my thought dry during the hour when they should have been filling themselves full of fresh juices.

This sentence (and it is one single sentence!) is amazing for all kinds of reasons. First, there’s the sheer length—it’s 198 words long. Then there are the metaphors. Holmes’s thoughts are “magnetized,” then “shaken up by vibrations.” He casually alludes to “Chladni’s famous experiment” (you can read about it on Wikipedia if you don’t own a copy of the 1787 classic Entdeckungen über die Theorie des Klanges). Then he compares his thoughts to kernels of corn, cogs in a self-winding watch, and carriages being pulled by flying horses. By the end, his thoughts are breasts, which his chatty friend has milked dry.

It’s not just Holmes’s writing that’s remarkable. It’s also the actual experience he’s describing. In this age of smartphones, it’s hard to remember a time when people actively sought out opportunities to daydream. But you can see it in just about every Atlantic article from the 19th century—our writers were in no hurry. They were enjoying the process of thinking on paper, letting their associations carry them along without worrying about where they might end up (or when they might need to use a period). Emerson wrote that way: James Russell Lowell once described the Concord sage’s prose as “a chaos full of shooting-stars, a jumble of creative forces.” But I never really understood the mindset behind this kind of writing until I read that sentence by Oliver Wendell Holmes.

To find out more, I called up David S. Reynolds, a distinguished professor at the CUNY Graduate Center who specializes in 19th century literature and history. As someone who studies that era, Reynolds chuckled affectionately at Holmes’s sentence. He said it reminded him of Herman Melville: All throughout Moby Dick and Bartleby, the Scrivener, “there are a lot of these longer sentences that go on and on, and yet they hang together and are filled with metaphors that are just wonderful.”

Reynolds pointed out that the 19th century was the Romantic age, a time when writers wanted to “luxuriate in language” and explore their inner worlds. A classic example, he said, was Walt Whitman’s 1855 “Song of Myself.” Reynolds’s students often have trouble understanding what Whitman meant when he wrote, “I lean and loafe at my ease . observing a spear of summer grass.” “Some of them say, ‘What is this guy, a space cadet or something?’ But that’s the way Whitman was. He was able to really slow down and enjoy his environment.”

What made writers stop loafing in the grass? Mark Twain, another Atlantic contributor, had a lot to do with it. According to Reynolds, Ernest Hemingway was right when he observed, “All modern American literature comes from one book by Mark Twain called Huckleberry Finn.”

“I mean, the Holmes sentence was really designed for an educated reading public,” Reynolds said. “It doesn’t pretend to be at all vernacular. What Mark Twain did was to try and register the voices of people who weren’t necessarily educated, barely literate kids.” And Twain didn’t hide his disdain for those who wrote 200-word sentences. According to Reynolds, “He once stood up before a literary crowd at a formal banquet and went on and on about the windy, excessive language of writers like James Fenimore Cooper.”

American literature didn’t change all at once Reynolds points out that Henry James went right on doing his thing even as Twain was writing his down-to-earth dialogue. But history was on Twain’s side. The spread of mass media, the rise of motion pictures, and the popularity of Strunk and White all helped shape the sensibilities we have now. Today’s Atlantic editors would never let some of the metaphors Holmes used into a finished story, let alone all of them in one endless sentence.

But that’s part of what makes Holmes’s writing so mischievously appealing. It breaks all our modern rules, but somehow, it works. He manages to capture the motion of the mind, the almost physical ways it floats and vibrates and whirs. Writers may write differently now, but our words and ideas still come from somewhere, and the process of bringing them to the surface is as wonderful and mysterious as it ever was. Sometimes it takes a 198-word sentence by a masterful writer to remind us of that.


Contents

Holmes was born in Boston, Massachusetts, to the prominent writer and physician Oliver Wendell Holmes Sr. and abolitionist Amelia Lee Jackson. Dr. Holmes was a leading figure in Boston intellectual and literary circles. Mrs. Holmes was connected to the leading families Henry James Sr., Ralph Waldo Emerson and other transcendentalists were family friends. Known as "Wendell" in his youth, Holmes, Henry James Jr. and William James became lifelong friends. Holmes accordingly grew up in an atmosphere of intellectual achievement, and early formed the ambition to be a man of letters like Emerson. While still in Harvard College he wrote essays on philosophic themes, and asked Emerson to read his attack on Plato's idealist philosophy. Emerson famously replied, "If you strike at a king, you must kill him." He supported the Abolitionist movement that thrived in Boston society during the 1850s. At Harvard, he was a member of the Hasty Pudding and the Porcellian Club his father had also been a member of both clubs. In the Pudding, he served as Secretary and Poet, as his father did. [6] Holmes graduated Phi Beta Kappa from Harvard in 1861 and in the spring of that year, he enlisted in the Massachusetts militia, when the president first called for volunteers following the firing on Fort Sumter, but returned briefly to Harvard College to participate in commencement exercises. [7] In the summer of 1861 with his father's help he obtained a lieutenant's commission in the Twentieth Massachusetts Volunteer Infantry.

Civil War Edit

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 Massachusetts Volunteer Infantry. He saw much action, taking part in the Peninsula Campaign, the Battle of Fredericksburg and the Wilderness, suffering wounds at the Battle of Ball's Bluff, Antietam, and Chancellorsville, and suffered from a near-fatal case of dysentery. He particularly admired and was close to Henry Livermore Abbott, a fellow officer in the 20th Massachusetts. Holmes rose to the rank of lieutenant colonel, but eschewed promotion in his regiment and served on the staff of the VI Corps during the Wilderness Campaign. Abbott took command of the regiment in his place, and was later killed.

Holmes is said to have shouted to Abraham Lincoln to take cover during the Battle of Fort Stevens, although this is commonly regarded as apocryphal. [8] [9] [10] [11] 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. . ") [12] and other sources state he likely was not present on the day Lincoln visited Fort Stevens. [13]

Holmes received a brevet (honorary) promotion to colonel in recognition of his services during the war. He retired to his home in Boston after his three-year enlistment ended in 1864, weary and ill, his regiment disbanded.

Lawyer and state judge Edit

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 Harvard Law School, "kicked into the law" by his father, as he later recalled. [14] 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, Massachusetts, the following year. [15] Their marriage lasted until her death on April 30, 1929. They never had children together. They did adopt and raise an orphaned cousin, Dorothy Upham. Fanny disliked Beacon Hill society, and devoted herself to embroidery. She was described as devoted, witty, wise, tactful, and perceptive.

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 judge in Boston, he formed romantic friendships with English women of the nobility, with whom he corresponded while at home in the United States. The most important of these was his friendship with the Anglo-Irish Clare Castletown, the Lady Castletown, whose family estate in Ireland, Doneraile Court, he visited several times, and with whom he may have had a brief affair. [16] [17] He formed his closest intellectual friendships with British men, and became one of the founders of what was soon called the "sociological" school of jurisprudence in Great Britain, followed a generation later by the "legal realist" school in America.

Holmes practiced admiralty law and commercial law in Boston for fifteen years. It was during this time that he did his principal scholarly work, serving as an editor of the new American Law Review, reporting decisions of state supreme courts, and preparing a new edition of Kent's Commentaries, which served practitioners as a compendium of case law, at a time when official reports were scarce and difficult to obtain. He summarized his hard-won understanding in a series of lectures, collected and published as The Common Law in 1881.

The Common Law Edit

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 the 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. [2]

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. Holmes famously contrasted his own scholarship with the abstract doctrines of Christopher Columbus Langdell, dean of Harvard Law School, who viewed the common law as a self-enclosed set of doctrines. Holmes viewed Langdell's work as akin to the German philosophic idealism he had for so long resisted, opposing it with his own scientific materialism. [18]

State court judge Edit

—Oliver Wendell Holmes Jr, "The Path of the Law", 10 Harvard Law Review 457, 478 (1897)

Holmes was considered for a federal court judgeship in 1878 by President Rutherford B. Hayes, but Massachusetts Senator George Frisbie Hoar persuaded Hayes to nominate another candidate. In the fall of 1882, Holmes became a professor at Harvard Law School, accepting an endowed professorship that had been created for him, largely through the efforts of Louis D. Brandeis. On Friday December 8, 1882, Supreme Judicial Court of Massachusetts associate justice Otis Lord decided to resign, giving outgoing Republican governor John Davis Long a chance to appoint his successor, if he could do so before the Massachusetts Governor's Council adjourned at 3 pm. Holmes' partner George Shattuck proposed him for the vacancy, Holmes quickly agreed, and there being no objection by the council, he took the oath of office on December 15, 1882. His resignation from his professorship, after only a few weeks and without notice, was resented by the law school faculty, with James Bradley Thayer finding Holmes' conduct "selfish" and "thoughtless." [19] On August 2, 1899, Holmes became Chief Justice of the Massachusetts Supreme Judicial Court following the death of Walbridge A. Field.

During his service on the Massachusetts court, Holmes continued to develop and apply his views of the common law, usually following precedent faithfully. He issued few constitutional opinions in these years, but carefully developed the principles of free expression as a common-law doctrine. He departed from precedent to recognize workers' right to organize trade unions and to strike, as long as no violence was involved, and coercion was not exerted through impermissible means such as secondary boycotts, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers. He continued to give speeches and to write articles that added to or extended his work on the common law, most notably "Privilege, Malice and Intent", [20] in which he presented his view of the pragmatic basis of the common-law privileges extended to speech and the press, which could be defeated by a showing of malice, or of specific intent to harm. This argument would later be incorporated into his famous opinions concerning the First Amendment.

He also published an address, "The Path of the Law", [21] 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. [21]

Overview Edit

On August 11, 1902, President Theodore Roosevelt nominated Holmes to a seat on the United States Supreme Court vacated by Justice Horace Gray, who had retired in July 1902 as a result of illness. The nomination was made on the recommendation of Senator Henry Cabot Lodge, the junior senator from Massachusetts, but was opposed by the senior senator and chairman of the Senate Judiciary Committee, George Frisbie Hoar. Hoar was a strenuous opponent of imperialism, and the legality of the annexation of Puerto Rico and the Philippines was expected to come before the Court. Lodge, like Roosevelt, was a strong supporter of imperialism, which Holmes was expected to support as well. [22] As a result of Hoar's opposition, there was a delay in the vote for confirmation, but on December 2, 1902, Roosevelt resubmitted the nomination and Holmes was unanimously confirmed by the United States Senate on December 4, receiving his commission the same day. On the bench, Holmes did vote to support the administration's position favoring the annexation of former Spanish colonies in the "Insular Cases". However, he later disappointed Roosevelt by dissenting in Northern Securities Co. v. United States, a major antitrust prosecution [23] the majority of the court, however, did rule against Holmes and sided with Theodore Roosevelt's belief that Northern Securities violated the Sherman Antitrust Act. [23] The dissent by Holmes permanently damaged his formerly close relationship with Theodore Roosevelt. [24]

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. [14]

From the departure of William Howard Taft on February 3, 1930 until Charles Evans Hughes took office on February 24, 1930, Holmes briefly acted as the Chief Justice and presided over court sessions.

Noteworthy rulings Edit

Otis v. Parker Edit

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 only to those fundamental principles enshrined in the common law and did not protect most economic interests.

Schenck v. United States Edit

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 Justice Louis D. Brandeis, newly appointed by President Woodrow Wilson) abandoned the case, and it was dismissed by the Court. The Chief Justice then asked Holmes to write opinions in which they could be unanimous, upholding convictions in three similar cases, where there were jury findings that speeches or leaflets were published with an intent to obstruct the draft, a crime under the 1917 law. Although there was no evidence that the attempts had succeeded, Holmes, in Schenck v. United States (1919), held for a unanimous Court that an attempt, purely by language, could be prosecuted in cases where the expression, in the circumstances in which it was uttered, posed a "clear and present danger" that the legislature had properly forbidden. In his opinion for the Court, Holmes famously declared that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic". Although much criticized, Schenck remained an important precedent until it was superseded by the 1969 Supreme Court decision in Brandenburg v. Ohio, which held that "advocacy of the use of force or of law violation" is protected unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [25]

Abrams v. United States Edit

Later in 1919, however, in Abrams v. United States, Holmes was again in dissent. The Wilson Administration was vigorously prosecuting those suspected of sympathies with the recent Russian Revolution, as well as opponents of the war against Germany. The defendants in this case were socialists and anarchists, recent immigrants from Russia who opposed the apparent efforts of the United States to intervene in the Russian Civil War. They were charged with violations of the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917 that made criticisms of the government or the war effort a crime. Abrams and his co-defendants were charged with distributing leaflets (one in English and one in Yiddish) that called for a "general strike" to protest the US intervention in Russia. A majority of the Court voted to uphold the convictions and sentences of ten and twenty years, to be followed by deportation. Holmes dissented. The majority claimed to be following the precedents already set in Schenck and the other cases in which Holmes had written for the Court, but Holmes insisted that the defendants' leaflets neither threatened to cause any harm, nor showed a specific intent to hinder the war effort. Holmes condemned the Wilson Administration's prosecution, and its insistence on draconian sentences for the defendants in passionate language: "Even if I am technically wrong [regarding the defendants' intent] and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper . the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer, not for what the indictment alleges, but for the creed that they avow. " Holmes then went on to explain the importance of freedom of thought in a democracy:

[W]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 safely can be carried out. That, at any rate, is the theory of our 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". [26] [27] 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. [28] 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 Edit

In 1920, in the case Silverthorne Lumber Co. v. United States, Holmes ruled that any evidence obtained, even indirectly, from an illegal search was inadmissible in court. He reasoned that otherwise, police would have an incentive to circumvent the Fourth Amendment to obtain derivatives of the illegally obtained evidence, so any evidence resulting from this must be discouraged. This later became known as the "fruit of the poisonous tree".

Buck v. Bell Edit

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. Later scholarship has shown that the suit was collusive, in that "two eugenics enthusiasts . had chosen Buck as a bit player in a test case that they had devised," and "had asked Buck's guardian to challenge [the Virginia sterilization law]. [29] In addition, Carrie Buck was probably of normal intelligence. [30] [31] The argument made on her behalf was principally that the statute requiring sterilization of institutionalized persons was unconstitutional, as 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. [32]

Sterilization rates under eugenics laws in the United States climbed from 1927 until Skinner v. Oklahoma, 316 U.S. 535 (1942), in which the U.S. Supreme Court declared unconstitutional an Oklahoma statute that provided for the sterilization of "habitual criminals."

Buck v. Bell continues to be cited occasionally in support of due process requirements for state interventions in medical procedures. For instance, in 2001, the United States Court of Appeals for the Eighth Circuit cited Buck v. Bell to protect the constitutional rights of a woman coerced into sterilization without procedural due process. [33] The court stated that error and abuse will result if the state does not follow the procedural requirements, established by Buck v. Bell, for performing an involuntary sterilization. [33] Buck v. Bell was also cited briefly, though not discussed, in Roe v. Wade, in support of the proposition that the Court does not recognize an "unlimited right to do with one's body as one pleases". [34] However, although Buck v. Bell has not been overturned, "the Supreme Court has distinguished the case out of existence." [35]

Critique of formalism Edit

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 [2] that legal rules are not deduced through formal logic but rather emerge from an active process of human self-government. [36] He explored these theories in his 1881 book The Common Law. His philosophy represented a departure from the prevailing jurisprudence of the time: legal formalism, which held that law was an orderly system of rules from which decisions in particular cases could be deduced. Holmes sought to consciously reinvent the common law – to modernize it as a tool for adjusting to the changing nature of modern life, as judges of the past had done more or less unconsciously. [36] He has been classed with the philosophic pragmatists, although pragmatism is what he attributed to the law, rather than his personal philosophy. [B]

Central to his thought was the notion that the law, as it had evolved in modern societies, was 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 failed to reflect the 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. [2]

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. [37] 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. [ citation needed ]

Legal positivism Edit

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. Law was what the state would enforce, through violence if necessary echoes of his experience in the Civil War were always present in his writings. Judges decided where and when the force of the state would be brought to bear, and judges in the modern world tended to consult facts and consequences when deciding what conduct to punish. The decisions of judges, viewed over time, determined the rules of conduct and the legal duties by which all are bound. Judges did not and should not consult any external system of morality, certainly not a system imposed by a deity.

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. . " [38] : 49 "The common law is not a brooding omnipresence in the sky. . " [39] Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principles, Holmes said that, "[T]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." [21] : 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 United States. As a justice of the U.S. Supreme Court, Holmes rejected the argument that the text of the Constitution should be applied directly to cases that came before the court, as if it were a statute. He shared with most of his fellow judges the belief that the Constitution carried forward principles derived from the common law, principles that continued to evolve in American courts. The text of the Constitution itself, as originally understood, was not a set of rules, but only a directive to courts to consider the body of the common law when deciding cases that arose under the Constitution. It followed that constitutional principles adopted from the common law were evolving, as the law itself evolved: "A word [in the Constitution] is not a crystal, transparent and unchanged, it is the skin of a living thought. " [40]

—Holmes's dissent in Lochner v. New York 198 U.S. 45 at 76 (1905)

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. [41]

Holmes also insisted on the separation of "ought" and "is", confusion of which he saw as an obstacle in understanding the realities of the law. [21] : 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." [21] : 458 [38] : 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." [38] : 40 Holmes said, "I think our morally tinted words have caused a great deal of confused thinking." [42] : 179

Nevertheless, in rejecting morality as a form of natural law outside of and superior to human enactments, 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." [21] : 457 Holmes' insistence on the material basis of law, on the facts of a case, has led some to characterize him as unfeeling, however. George Washington University law professor Jeffrey Rosen summarized Holmes' views this way: "Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold." [43]

Reputation as a dissenter Edit

Although Holmes did not dissent frequently — during his 29 years on the U.S. Supreme Court, 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 Justice Taft complained that "his opinions are short, and not very helpful." [44] Two of his most famous dissents were in Abrams v. United States and Lochner v. New York.

Speeches Edit

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 Law School. Harvard Law Professor Mark De Wolfe Howe undertook to edit the papers and was authorized by the school to publish them and to prepare a biography of Holmes. Howe published several volumes of correspondence, beginning with Holmes's correspondence with Frederick Pollock, [45] [46] and a volume of Holmes's speeches, [47] before his untimely death. Howe's work formed the basis of much subsequent Holmes scholarship.

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 Justice Holmes. [48] The public addresses are Holmes's effort to express his personal philosophy in Emersonian, poetic terms. They frequently advert to the Civil War and to death, and frequently express a hope that personal sacrifice, however pointless it may seem, serves to advance the human race toward some as-yet unforeseen goal. This mysterious purpose explained the commitment to duty and honor that Holmes felt deeply himself and that he thought was the birthright of a certain class of men. As Holmes stated at a talk upon receiving an honorary degree from Yale:

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? [49] : 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. [50]

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 Spanish–American War.

On May 30, 1895, Holmes gave the address at a Memorial Day function held by the Graduating Class of Harvard University in Boston, Massachusetts. The speech, which came to be known as "The Soldier's Faith", expressed Holmes' view of the nature of war, and the conflict between the high ideals that motivated his generation to fight in the civil war, and the reality of a soldier's experience personal pledge to follow orders into battle. [51] Holmes stated:

[T]here is one thing I do not doubt . and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands. [50]

That the joy of life is living, is to put out all one's powers as far as they will go that the measure of power is obstacles overcome to ride boldly at what is in front of you, be it fence or enemy to pray, not for comfort, but for combat to keep the soldier's faith against the doubts of civil life, more besetting and harder to overcome than all the misgivings of the battle-field, and to remember that duty is not to be proved in the evil day, but then to be obeyed unquestioning. [50]

In the conclusion of the speech, Holmes said:

We have shared the incommunicable experience of war we have felt, we still feel, the passion of life to its top. [50]

Theodore Roosevelt reportedly admired Holmes' "Soldier's Faith" speech, and it is believed to have contributed to his decision to nominate Holmes to the Supreme Court. [52]

Letters Edit

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 Harold Laski and Frederick Pollock contain frank discussion of his decisions and his fellow justices. In the United States, letters to male friends Morris R. Cohen, Lewis Einstein, Felix Frankfurter, and Franklin Ford are similar, although the letters to Frankfurter are especially personal. Holmes's correspondence with women in Great Britain and the U.S. was at least as extensive, and in many ways more revealing, but these series of letters have not been published. An extensive selection of letters to Claire Castletown, in Ireland, is included in Honorable Justice: The Life of Oliver Wendell Holmes, by Sheldon Novick. [53] These letters are closer to Holmes's conversation, and cast light upon the style he adopted in judicial opinions, which were often designed to be read aloud.

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." [54]

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. 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 and 10 months of age, he was the oldest justice to serve in the court's history, and his record has only been challenged by John Paul Stevens in 2010, who retired when only 8 months younger than Holmes had been at retirement. On Holmes's ninety-second birthday, newly inaugurated President Franklin Delano Roosevelt and his wife Eleanor, called on Holmes at his home in Washington, D.C. Holmes died of pneumonia in Washington on March 6, 1935, two days short of his 94th birthday. He was the last living Justice of the Fuller Court and had been between 1925 and 1932 the last Justice of that Court to remain on the bench.

In his will, Holmes left his residuary estate to the United States government (he had earlier said that "taxes are what we pay for civilized society" in Compañia General de Tabacos de Filipinas vs. Collector of Internal Revenue, 275 U.S. 87, 100 (1927).) After his death, his personal effects included his Civil War Officer's uniform still stained with his blood and 'torn with shot' as well as the Minié balls that had wounded him three times in separate battles. Holmes was buried beside his wife in Arlington National Cemetery. [55] [56]

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 1946 Broadway play and 1950 Hollywood motion picture The Magnificent Yankee were based on a biography of Holmes by Francis Biddle, who had been one of his secretaries. Much of the scholarly literature addressing Holmes's opinions was written before much was known about his life, and before a coherent account of his views was available. The Harvard Law Library eventually relented and made available to scholars the extensive Holmes papers, collected and annotated by Mark DeWolfe Howe, who died before he was able to complete his own biography of the justice. In 1989, the first full biography based on Holmes's papers was published, [57] and several other biographies have followed.

Congress established the U.S. Permanent Committee for the Oliver Wendell Holmes Devise within the Library of Congress with the funds he left to the United States in his will which were used to create a memorial garden at the Supreme Court building and to publish an ongoing series on the history of the Supreme Court. [58]

Holmes' summer house in Beverly, Massachusetts, was designated a National Historic Landmark in 1972, recognition for his contributions to American jurisprudence. [59]

Justice Holmes was an honorary member of the Connecticut Society of the Cincinnati.

"Many secretaries formed close friendships with one another," wrote Tony Hiss, son of Alger Hiss, about the special "club" of clerks of Oliver Wendell Holmes Jr. They included:

  • Robert M. Benjamin (later, lawyer for an appeal by Alger Hiss) , U.S. Representative
  • Alger Hiss, president of the Carnegie Endowment for International Peace and convicted perjurer , partner, Covington & Burling law firm , chairman of U.S. Steel
  • H. Chapman Rose, Undersecretary of the United States Treasury[60]
  • Chauncey Belknap, partner at Patterson, Belknap, Webb & Tyler, one of largest law firms in New York during his time, and an attorney for the Rockefeller Foundation [61]
  • American actor Louis Calhern portrayed Holmes in the 1946 play The Magnificent Yankee, with Dorothy Gish as Holmes's wife Fanny. In 1950, Calhern repeated his performance in Metro-Goldwyn-Mayer's film version The Magnificent Yankee, for which he received his only Academy Award nomination. Ann Harding co-starred in the film. A 1965 television adaptation of the play starred Alfred Lunt and Lynn Fontanne in one of their few appearances on the small screen.
  • In the movie Judgment at Nuremberg (1961), defense advocate Hans Rolfe (Maximilian Schell ) quotes Holmes twice. First, with one of his earlier opinions:

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.

And secondly, on the sterilization laws enacted in Virginia, and upheld by the Supreme Court in Buck v. Bell.

We have seen, more than once, that the public welfare may call upon the best citizens for their lives. It would be strange, indeed, if it could not call upon those who already sap the strength of the State for these lesser sacrifices, in order to prevent being swamped by 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 their propagation, by medical means, in the first place. Three Generations of imbeciles are enough.


Justice Oliver Wendell Holmes, Jr. (1841-1935)

Oliver Wendell Holmes, Jr. was born in Boston on March 8, 1841. He would live until two days short of his 94th birthday. His father, Oliver Wendell Holmes, Sr., was a physician, a professor of medicine at Harvard, and an author of novels, verse, and humorous essays. Thus, Holmes grew up in a literary, and prosperous, family.

Holmes attended private schools in Boston and then, like his father, Harvard. Young Holmes was not overly impressed with the Harvard of that time, finding the curriculum stultifying (Henry Adams later remarked that "Harvard taught little, and that little ill."). He exercised his literary talents as editor of the Harvard Magazine, and in numerous essays. His graduation was even in some doubt, as he had been publicly admonished by the faculty for "disrespect" towards a professor. Holmes evidently took this as an affront and left to train for the Civil War. His unit was not immediately sent to the front, and Holmes was persuaded to return and receive his degree.

After graduating from Harvard, Holmes began his Civil War service. He was wounded in battle three times and also suffered numerous illnesses. Though he was later to glorify wartime service, he declined to renew his term of service when it expired. Holmes apparently, and justifiably, felt that he had done more than his duty, and had survived one battle too many to continue tempting fate.

Holmes returned to Boston, decided to study law, and entered Harvard Law School in 1864. Though at first uncertain that law would be his profession, he soon became immersed in study and decided that the law would be his life's work. He committed himself to the law, but not necessarily to the private practice.

After passing the required oral examination, Holmes was admitted to the Massachusetts bar in 1867. For the next fourteen years he practiced law in Boston. But his love for legal scholarship, rather than the mundane daily practice, was evident during this period. He worked on a new edition of Kent's Commentaries, a mammoth endeavor that took some four years, and became the editor of the American law Review.

Holmes married Fanny Dixwell in 1872. They had known each other since Holmes was about ten years old, as she was the daughter of the proprietor of the private school he attended. Their marriage was to be childless, and endured until her death in 1929.

Holmes's most famous work, The Common Law, published in 1881 grew out of a series of twelve lectures he was invited to deliver, which required that he explain the fundamentals of American law. Holmes questioned the historical underpinnings of much of Anglo-American jurisprudence. The work contains Holmes's most famous quote, "The life of the law has not been logic it has been experience." Holmes had come to believe that even outdated and seemingly illogical legal doctrines survived because they found new utility. Old legal forms were adapted to new societal conditions.

Shortly after publication of The Common Law, Holmes was offered a post teaching law at Harvard. After some intense negotiation, mainly centered on money, because Holmes was not wealthy and needed the income to live, he accepted the professorship. But after teaching only one semester, he resigned to accept an appointment to the Supreme Judicial Court of Massachusetts, the state's highest court. The opening had arisen at the end of the current Republican governor's term, and as he was to be succeeded by a Democrat, the appointment had to be accomplished with dispatch. Holmes's departure from Harvard caused some consternation, however, as he was one of only five full-time professors, and an endowment had been specially raised to fund his professorship.

Holmes served on the Supreme Judicial Court for twenty years, becoming chief justice. He loved the work-the legal research and the "writing up" of cases. Holmes found the work easy, at least for him. He could see immediately to the heart of an issue, and his intellectual powers were far superior to his colleagues. Holmes was never accused of modesty, especially concerning his superiority to his fellow judges. Though he was happy on the Supreme Judicial Court, he desired greater fame and challenge.

The opportunity for ultimate professional advancement came in 1902, when Holmes was appointed by President Theodore Roosevelt to the United States Supreme Court. His appointment might never have happened, except that the "New England seat" on the court became vacant during Roosevelt's term, and Roosevelt and Holmes were both friends with Massachusetts Senator, Henry Cabot Lodge. Lodge persuaded Roosevelt that Holmes was "safe," meaning favorable towards Roosevelt's progressive policies. Roosevelt would later regret the appointment, after Holmes participated in striking down some of Roosevelt's initiatives.

Oliver Wendell Holmes, Jr. would serve on the Supreme Court longer than any other person-thirty years. He was called "The Great Dissenter" because he was often at odds with his fellow justices and was capable of eloquently expressing his dissents. Louis Brandeis often joined him in dissents, and their views often became the majority opinion in a few years' time. Holmes resigned due to ill health in 1932, at age ninety. He died in 1935 and is buried in Arlington National Cemetery next to his wife.

Holmes's legal philosophy evolved over the sixty-odd years he wrote on the law. At first, he attempted a rational, systematic, or "scientific" conceptualization. But over time, he came to realize that the law was more of a compendium of decisions reflecting individual judges' resolutions of actual cases. Thus, the growth of the law was by experience molded to actual controversies in the society of the day.

Widely considered a "liberal" because he believed in free speech and the right of labor to organize, Holmes was very conservative in his response to injury cases. He was a champion of "judicial restraint"-deferring to the judgment of the legislature in most matters of policy.


Oliver Wendell Holmes - HISTORY

Are Oliver Wendell Holmes, Senior and Junior, both Dutch Americans? Yes, they are. Their Dutch lineage comes from the mother of Holmes, Sr. and the grandmother of Holmes, Jr. Her name was Sarah Wendell, the daughter of a wealthy Dutch American family. Her ancestry goes back to the first Wendell, Evert Jansen, who left Holland in 1640 and settled in Albany, New York. If you look through the telephone book pages in Albany, New York, you will find a plethora of Wendells, all distant cousins of the two Oliver Wendell Holmes.

Oliver Wendell Holmes, Sr.’s interests and expertise ranged widely over a number of different areas. He was an American physician, a professor, a writer, and a lecturer. He is probably best known for his poetry, because he is considered to be one of the best poets of the nineteenth century, by his peers. He is also considered to be a member of the “Fireside Poets”. His most famous prose works are the “The Breakfast Table” series.

Holmes was educated at Phillips Academy and Harvard College. He graduated from Harvard College in 1829, and then briefly studied law before turning to the study of medicine. His medical education and training took place at Harvard and at Paris, France medical institutions. In 1836, he received his medical degree, the M.D., from Harvard Medical School. Following his medical training, he joined the Medical School faculty at Dartmouth, and later returned as a faculty member to the Harvard Medical School, where he later also served as Dean of the Medical School.

While engaged in his medical studies, Holmes began writing poetry. One of his earliest works, and also one of his most famous pieces, was “Old Ironsides”, which was published in 1830, only one year following his graduation from Harvard College. He would continue to write poetry and prose during the remainder of his life. However, he did much of his writing after he retired from Harvard Medical School in 1882. He then continued writing poetry, novels and essays until his death in 1894.

Although Holmes is best remembered as a poet and writer, we must remember that Holmes’s main profession during his life was medicine and the teaching of medicine. Having obtained much of his medical training in the famous Paris Ecole de Medicine, Holmes was well positioned to impart and teach the latest medical knowledge to future American medical practitioners. At that time American medicine was still in a rather formative stage. Even Holmes was known to refer to much of American medicine as “quackery”. Holmes became a strong advocate of the French “mode expectante”, a medical therapy method of not interfering with the body’s natural healing process. The physician’s role in the “mode expectante” is to do everything possible to aid nature in the healing process of disease recovery, and to do nothing to interfere with it.

As a poet Holmes made an indelible imprint on the literary world of the nineteenth century. Much of his work was published by the prestigious “Atlantic Monthly”. He also received a number of honorary degrees for his literary work by universities around the world. One of his better known poems was “The Last Leaf”, a poem partially inspired by one of Boston’s historical figures, Thomas Melville, a member of the 1774 Boston Tea Party.

Oliver Wendell Holmes, Sr. was born in Cambridge, Massachusetts, on August 29, 1809. He was the first son of Abiel Holmes [1763-1837] who was a minister of the First Congregational Church, and an avid historian. Holmes’ mother was Sarah Wendell, the daughter of a judge. On June 15, 1840, Holmes married Amelia Lee Jackson. She was the daughter of Judge Charles Jackson, who had been an Associative Justice of the Massachusetts Supreme Judicial Court. The couple had three children, consisting of the future United States Supreme Court Justice, Oliver Wendell Holmes, Jr. [1841-1935], a daughter, Amelia Jackson Holmes [1843-1889], and another son, Edward Jackson Holmes [1846-1884]. Oliver Wendell Holmes, Sr. passed away on October 7, 1894 at the advanced age of 85 years.

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