Mr. Justice Holmes
The American Mercury, May 1930
A Review of The Dissenting Opinions of Mr. Justice Holmes
arranged by Alfred Lief, with a forward by George W. Kirchwey
Mr. Justice Holmes's dissenting opinions have got so much fawning praise from liberals that it is somewhat surprising to discover that Mr. Lief is able to muster but fifty-five of them, and even more surprising to hear from Dr. Kirchwey that in only one case did the learned justice stand quite alone, and that the cases "in which he has given expression to the judgement of the court, [sic] or in which he has concurred in its judgement, far outnumber, in the ratio of eight or ten to one, those in which he felt it necessary to dissent."There is even more surprising stuff in the opinions themselves. In three Espionage Act cases, including the Debs case, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside by any jury that has been sufficiently alarmed by a district attorney itching for higher office. In Fox v. the State of Washington, we learn that any conduct "which shall tend to encourage or advocate disrespect for the law" may be made a crime, and that the protest of a man who believes that he has been jailed unjustly, and threatens to boycott his persecutors, may be treated as such a crime. In Moyer v. Peabody, it appears that the Governor of a state, "without sufficient reason but in good faith," may call out the militia, declare martial law, and jail anyone he happens to suspect or dislike, without laying himself open "to an action after he is out of office on the ground that he had no reasonable ground for his belief." And, in Weaver v. Palmer Bros. Co. there is the plain inference that in order to punish a theoretical man, A, who is suspected of wrong-doing, a State Legislature may lay heavy and intolerable burdens upon a real man, B, who has admittedly done no wrong at all.
I find it hard to reconcile such notions with any plausible concept of Liberalism. They may be good law, but it is impossible to see how they can conceivably promote liberty. My suspicion is that the hopeful Liberals of the 20s, frantically eager to find at least one judge who was not violently and implacably against them, seized upon certain of Mr. Justice Holmes's opinions without examining the rest, and read into them an attitude that was actually as foreign to his ways of thinking as it was to those of Mr. Chief Justice Hughes. Finding him, now and then, defending eloquently a new and uplifting law which his colleagues proposed to strike of the books, they concluded that he was a sworn advocate of the rights of man. But all the while, if I do not misread his plain words, he was actually no more than an advocate of the rights of lawmakers. There, indeed, is the clue to his whole jurisprudence. He believed that the law-making bodies should be free to experiment almost ad libitum, that the courts should not call a halt upon them until they clearly passed the uttermost bounds of reason, that everything should be sacrificed to their autonomy, including apparently, even the Bill of Rights. If this [sic] is liberalism, then all I can say is that Liberalism is not what it was when I was young.
In those remote days, sucking wisdom from the primeval springs, I was taught that the very aim of the Constitution was to keep law-makers from running amok, and that it was the highest duty of the Supreme Court, following Marbury v. Madison, to safeguard it against their forays. It was not sufficient, so my instructors maintained, for Congress or a State Legislature to give assurance that its intentions were noble; noble or not, it had to keep squarely within the limits of the Bill of Rights, and the moment it went beyond them its most virtuous acts were null and void. But Mr. Justice Holmes apparently thought otherwise. He held, it would seem, that violating the Bill of Rights is a rare and deliberate malice, and that it is chief business of the Supreme Court to keep the Constitution loose and elastic, so that blasting holes through it may not be too onerous. Bear this doctrine in mind, and you will have an adequate explanation, on the one hand, of those forward-looking opinions which console the Liberals- for example in Lochner v. New York (the bakery case), in the child labor case, and in the Virginia case involving the compulsory sterilization for imbeciles- and on the other hand, of the reactionary opinions which they so politely overlook- for example in the Debs case, in Bartels v. Iowa (a war-time case, involving the prohibition of foreign-language teaching), in the Mann Act case (in which Dr. Holmes concurred with the majority of the court, [sic] and thereby helped pave the way for the wholesale blackmail which Mr. Justice McKenna, who dissented, warned against), and finally in the long line of Volstead Act cases.
Like any other man, of course, a judge sometimes permits himself the luxury of inconsistency. Mr. Justice Holmes, it seems to me, did so in the wiretapping case and again in the Abrams case, in which his dissenting opinion was clearly at variance with the prevailing opinion in the Debs case, written by him. But I think it is quite fair to say that his fundamental attitude was precisely as I have stated it. Over and over again, in these opinions, he advocated giving the legislature full head-room, and over and over again he protested against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at helpless minorities. If what he said in some of those opinions were accepted literally, there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.
The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased, save indirectly, to be even the creature of the people: it is the creature, in the main, of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty. Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle- a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.
It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have the powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even the legislature may not go. The Supreme Court, in Marbury v. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the corner-stone of American constitutional law. But it late years the court has taken the opposite line, and the public opinion seems to support it. Certainly, Dr. Holmes did not go as far in that direction as some of his brother judges, but equally certainly he went far enough. To call him Liberal is to make the word meaningless....
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