Holmes, Oliver Wendell (b. Boston, Mass., 8 Mar. 1841; d. Washington, D.C., 6 Mar. 1935; interred Arlington National Cemetery, Arlington, Va.), associate justice, 1902–1932. Holmes was born in Boston to a family of moderate means. His father, for whom he was named, was a physician and littérateur who supplemented the income from a meager Boston medical practice with lectures on anatomy at the Harvard Medical School and lectures on literary subjects to general audiences. The elder Holmes was a gifted conversationalist and a compulsive writer of light verse; in 1856, when his son was just entering college, Dr. Holmes began writing a series of essays and poems, collectively titled The Autocrat of the Breakfast Table, for The Atlantic Monthly; his work became immensely popular in Great Britain and the United States. Like his father, the younger Holmes was intensely talkative, with a light, combative manner and a knack for verse rhythms and imagery.

Mrs. Holmes, born Amelia Lee Jackson, the daughter of a prominent Boston lawyer and judge, Charles Jackson, married late and devoted herself to her husband and three children, of whom the future Supreme Court justice was the first. Holmes—tall, thin, lantern‐jawed—resembled his mother more than his short, round‐faced father, and he was deeply affected by her. He was her favorite, and he acquired a secure self‐confidence as a result. He also received from his mother a powerful sense of duty and a talent for strong, warmly affectionate friendships. With his sense of duty came an unyielding adherence to the factual, a sharp skepticism for all but the self‐evident, and a near‐mystical acceptance of whatever in life seemed irrevocably given.

Influences

Holmes attended private schools and Harvard College, but the principle influences on his intellectual development were outside the classroom. He acquired early, as an article of faith, belief in a pre‐Darwinian doctrine of evolution compounded of the theories of Thomas Malthus and German romanticism. In later life, Holmes said that the great figures of his youth, other than his father, were John Ruskin, Thomas Carlyle, and Ralph Waldo Emerson. He probably absorbed their ideas as much from conversation in his father's house, where Emerson and other literary figures were occasional callers, as from his reading. Emerson passed on the “ferment” of philosophical inquiry to Holmes, partly by encouraging his combative independence of mind.

In his undergraduate essays Holmes announced the need for a “rational” explanation of duty, a sort of scientific substitute for religion, which he sought in an evolutionary, “scientific” account of both history and philosophy.

The other great influence on his youth was a revival of chivalry then sweeping over the United States and Great Britain, partly inspired by the poems and novels of Alfred, Lord Tennyson and Sir Walter Scott. Like many of his contemporaries Holmes acquired a lifelong commitment to courtly ideals and conduct. Chivalry was the code of duty for which he sought—and, ultimately believed he had found—scientific justification.

Early Career

Holmes enlisted in the federal army in July 1861, shortly after the Civil War had broken out; he obtained a commission as a lieutenant and served for two years in the Twentieth Massachusetts Volunteer Infantry at Ball's Bluff, the Peninsula campaign, and Antietam. In those two years he was wounded three times, twice almost fatally, and suffered from dysentery. Exhausted and reluctant to assume a command for which he had little aptitude, in the winter of 1863–1864 Holmes accepted a post as aide to General Horatio Wright (and then to General John Sedgwick) of the Sixth Corps. In the relative leisure of winter quarters he turned to philosophical writing, in notebooks he later destroyed, developing his combat experience into a materialist, evolutionary philosophy steeped in the conflict of rival nations and races and governed by the rules of chivalry.

He served through the Wilderness campaign and the siege of Vicksburg, and then, exhausted and telling himself that his duty lay in pursuing his philosophy, he left the army before the war's end and returned home to Boston.

Holmes attended Harvard Law School and in the summer of 1866, to complete his education, traveled to Great Britain and the Continent. He made a sort of debut in London polite society, was invited to a great many homes, and made lasting friendships. One of the most important was with Leslie Stephen, who greatly reinforced Holmes's interest in rationalist philosophy, evolution, and chivalry. Throughout his life, Holmes returned to England during the summer social season whenever he could, and kept up an energetic and extensive correspondence with British friends between visits.

On his return to Boston Holmes entered a clerkship and was admitted to the bar in 1867. He briefly gave up practice and attempted a career as an independent scholar, editing the twelfth edition of James Kent's Commentaries on American Law (1873), writing dozens of brief articles and reviews for the newly formed American Law Review and also occasional poetry. Elements of his later thought were formed in these years, but he did not put them into systematic form.

In 1872 he married a childhood friend, Fanny Dixwell, and joined a Boston law firm, Shattuck, Holmes, and Munroe, which had a busy commercial and admiralty practice. Fanny Holmes became seriously ill with rheumatic fever shortly after their marriage, and Holmes devoted himself to her care and to his law practice for several years. They never had children.

Scholarship

Holmes gradually returned to scholarly work in his spare hours, and in 1876, with “Primitive Notions in Modern Law,” he began a series of essays that presented a systematic analysis of the common law. He completed the series, somewhat hastily, and presented the essays as the Lowell Lectures in Boston in November and December 1880. They were published as a book, The Common Law, in 1881, a few days before Holmes's fortieth birthday.

The Common Law, often called the greatest work of American legal scholarship, became one of the founding documents of the sociological and, then, the realist schools of jurisprudence, and it had a considerable impact on tort and contract law in both the United States and Great Britain. It marked the beginning of empirical studies of judges' behavior and formed the basis of Holmes's later work on the Supreme Court.

In Holmes's view, acquired in twelve years of law practice, judges decided cases first and found reasons afterward. Their actual grounds of decision were based on the “felt necessities” of their time as much as on precedent or purely logical calculation. Consciously or unconsciously, judges expressed the wishes of their class. Law therefore was both an instrument and a result of natural selection. If law was simply an instrument to accomplish certain material ends, it seemed to follow that the law should concern itself solely with external behavior, and Holmes argued that he could discern in the developing common law a trend toward complete reliance on “external standards” of behavior rather than subjective states of mind or personal culpability.

Holmes had labored unsuccessfully, like his predecessors, to make sense of the tangled mass of legal rules of behavior. In 1880, however, he seems to have seen a new organizing principle. The question in every case, Holmes realized, was whether liability would be imposed. His general organizing principle then became clear: liability would be imposed when the breach of a rule of conduct resulted in injuries that an ordinary person would have foreseen. The injuries, and not the breach as such, were the central motive of policy; the law was founded on a policy of avoiding unjustified harms. (It was this insight that later made possible an economic analysis of the law.)

In The Common Law, Holmes argued that law had evolved from more primitive origins toward this still partly unconscious “external standard” and that law would continue to evolve toward a fully self‐conscious instrument of social purpose. Holmes's book itself, presumably, was an important step in this evolution toward self‐awareness.

Service on the Massachusetts Court

After The Common Law appeared, Holmes taught for a single semester at Harvard Law School and then accepted appointment to the Supreme Judicial Court of Massachusetts, where he served for twenty years, becoming chief justice in 1899.

Holmes wrote more than a thousand opinions for the Massachusetts court, most of them deciding common law questions or construing statutes in light of the common law, relentlessly working through the thesis of The Common Law. Holmes generally avoided writing opinions in constitutional cases, but when obliged to state a view he almost without exception expressed deference to the legislature. His opinions and letters of the time make clear that he based this deference on the English constitutional principle that the legislature was omnipotent, a principle modified in the United States only to the extent that written constitutions contained clear limitations on legislative authority. This was the reasoning of Thomas M. Cooley's famous treatise, Constitutional Limitations, a book Holmes had favorably reviewed and had used when teaching, but it would have been a natural enough conclusion from his own approach to jurisprudence.

In the 1890s, Holmes made one last major addition to his system to ideas. In “Privilege, Malice, and Intent,” published in 1894, Holmes discussed libel and slander cases in which liability was based, at least in part, on the defendant's state of mind—actual malice—rather than on an external standard of foreseeable harm. In these cases, Holmes argued, a common‐law privilege to do harm, like the privilege accorded to truthful speech, was based on a social policy favoring freedom of speech, but the privilege would be withdrawn when used for a malicious purpose. Holmes maintained that a general policy of avoiding unjustified harms was the basis of the privilege as well as the defense of actual malice, which accordingly were consistent with the thesis of The Common Law. He would later incorporate this theory into his opinions on the First Amendment. In 1896, he applied the theory in dissenting opinions in which he argued that a privilege should be extended to trade unions to organize and picket peacefully so long as these activities were carried on without malice.

Holmes strongly suggested that in English and American cases in which unions' right to conduct strikes or boycotts had been denied, judges had typically been biased by class prejudice. He argued forcefully that it was the duty of a judge to decide cases fairly, even if the result appeared dangerous to his class interests.

This argument seemed consistent with Holmes's theory that judges were instruments of the dominant force in society, but he never adequately explained the seeming contradiction of his Darwinist views, which he continued to affirm.

Service on the Supreme Court

On 11 August 1902, President Theodore Roosevelt nominated Holmes to the U.S. Supreme Court. He took his seat on 8 December 1902, and thereupon seemed to come into his own. After thirty‐five years of trying to extract philosophical principles from the most meager materials, petty disputes and sordid crimes, he for the first time was addressing great questions of public life and national policy. With a new self‐confidence, he developed opinion writing into an art with a very personal stamp; while his opinions were often difficult to follow and were criticized for over brevity and obscurity, they often achieved a unique beauty and power.

Holmes served on the Supreme Court for thirty years, under four chief justices. Through his longevity and his talent for getting cases assigned to him, he wrote 873 opinions for the Court, more than any other justice. He wrote proportionately fewer dissents than many justices, but as these were particularly forceful and well written they are the best‐known of his opinions. A handful of his dissents, especially in substantive due process and free speech cases, are now cited as precedent.

The Court in those years believed it had the power to base decisions on general principles of common law. Holmes, although he had done more to elucidate such general principles than anyone else, doubted whether they were a “brooding omnipresence in the sky” and insisted the Court must refer to the law of some actual jurisdiction. His views prepared the way for the decision after his death, in Erie Railroad Co. v. Tompkins (1938), that there was no general federal common law.

When construing statutes, the Court did not yet consult “legislative history,” and Holmes's readings of statutes were carefully limited to the four corners of the statutes themselves. Where meanings of terms were not clear he consulted the common law, in accordance with the canon that if words had an established meaning in common law, Congress was assumed to have used them in that sense.

Antitrust Cases

Thus, in a famous line of dissents, Holmes insisted that that Sherman Antitrust Act, by its plain language, did not prevent former competitors from merging, as at common law such mergers were not “combinations in restraint of trade.” On similar grounds, he argued that the Sherman Act did not prohibit retail price maintenance agreements or forbid trade associations in which price and production data were exchanged. In these opinions Holmes insisted that the majority read their own unstated economic views into the statute. Holmes was at pains to expose these “inarticulate premises,” and in the process he expressed his own views of economics in compressed form.

Holmes believed that the Sherman Antitrust Act was an “imbecile statute” that, he said in a letter, aimed “at making everyone fight and forbidding anyone to be victorious.” Dissenting from the Court's opinion that retail price maintenance agreements violated the Sherman Act, Holmes said that the Court majority's apparent policy was mistaken: competition within a sector of industry had little effect on price, and accordingly their reason for applying the Sherman Act failed even on policy grounds. Similarly, while upholding trade unions' right to organize and strike, he maintained that higher wages would be obtained by unions only at the cost of other workers. (See also Antitrust.)

The basis for these views was his often‐expressed conviction that the “stream of products,” by which he apparently meant something like the gross national product, was fixed at any one time and that any increase was quickly absorbed by the growth of population. He believed further that the share withdrawn by the wealthy capitalist class for its own consumption was minuscule in comparison to the total (see Capitalism). If essentially all the wealth in society was consumed by the large mass of its citizens, it seemed to follow by an iron logic that workers competed with each other, not with capitalists, for a larger share of the national product and that prices reflected not costs or competition but the share of the product that consumers were willing to give to any one commodity. Proposals for economic reform, redistribution of wealth, and enhanced competition, therefore seemed to him equally wrong. He insisted that the only hope for improved living conditions lay in eugenics and population control—“taking life in hand”—a view brutally expressed in his opinion in Buck v. Bell, upholding Virginia's compulsory sterilization law.

Constitutional Cases

Holmes's most important opinions concerned constitutional law. Holmes believed that the Constitution, too, should be construed in light of the common law. The general terms of the Constitution—freedom of speech, due process of law—were to be understood as embodying “relatively fundamental principles of right” found in the common law (see Fundamental Rights). As that law was changing, so too were the meanings of constitutional terms evolving: as he wrote, “A word is not a crystal, transparent and unchanging, but the skin of a living thought.” Fundamental principles were to be viewed from the perspective of centuries, a perspective from which universal suffrage was a recent innovation, and property rights were by no means fixed or eternal.

To Holmes the fundamental guarantees revolved around fairness in judicial proceedings. He objected to the unrestrained investigations of the Interstate Commerce Commission, which seemed to compel self‐incrimination. He refused to accept a procedure of empty forms when African‐American and Jewish defendants were tried in lynch‐mob settings in the South. He insisted on the right of the federal courts to intervene in state proceedings by writ of habeas corpus. He wrote opinions limiting the power of courts to punish contempt summarily, without trial. But when a lynch mob defied the Court's habeas corpus decree, he managed the criminal contempt trial, the only criminal trial ever held in the Supreme Court (United States v. Shipp, 1906).

Holmes was much more deferential to the states and to the other branches of government with regard to substantive guarantees of the Constitution. In his first opinion for the Court, Otis v. Parker (1902), he embraced the doctrine of “substantive due process” but gave it sharply narrowed scope. Substantive due process was the doctrine that the guarantee of due process of law extended by the Fifth and Fourteenth Amendments ensured more than a fair hearing in court. It was held to ensure that legislation also met some minimum requirements, but the Court had not very clearly articulated what those requirements were. In Otis Holmes identified them as “relatively fundamental principles of right” of the common law. His opinions over the years elucidated these fundamental principles, which were essentially those rights recorded in the Bill of Rights, which Holmes called evolving institutions “transplanted from English soil” (Gompers v. United States, 1914, p. 610).

Although the term “substantive due process” has been discredited, Holmes's opinions and dissents presage the modern view that the due process guarantee in the Fourteenth Amendment *“incorporates” the Bill of Rights and makes it applicable to the states (see Incorporation Doctrine). Holmes did not take an expansive view of these rights. He had grown up in a world in which the right to vote was still limited to men of property, and his views of the power of government were formed in the Civil War. Although he had nearly given his life in the Abolitionist cause and was nearly free of racial prejudice as anyone of his time in public life, he repeatedly avoided any defense of the right of African‐Americans to vote. In Bailey v. Alabama (1911) and United States v. Reynolds (1914), he dissented from the Court's decision that southern statutes making it a crime for tenant farmworkers to break their contracts were a form of peonage. He did not believe that wiretaps were unreasonable searches and seizures forbidden by the Fourth Amendment, and he expressly rejected a right of privacy based on the Fourth and Fifth Amendments.

If Holmes took a narrow view of civil rights, he took a similarly restrained approach to rights of property. He believed that property rights were created by legislatures and could be undone pretty much at will, the only question usually being whether compensation was owed when the government destroyed a form of property. His opinion in Pennsylvania Coal Co. v. Mahon (1922) gave the modern formulation of when such compensation is due.

Dissenting in Lochner v. New York (1905), perhaps his most famous opinion, Holmes argued for the right of New York's legislature to enact a statute limiting the labor of bakery workers to ten hours per day. Holmes said that the majority of the Court, in striking down the statute as a violation of due process, had based their opinion on an inarticulate “major premise,” an economic theory that was plainly not a fundamental principle of right. “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,” Holmes famously remarked (p. 75). This dissent is often cited as if it were critical of the whole method of substantive due process, but, as others have noted, Holmes was simply saying that economic principles were not fundamental principles of law.

Free Speech Cases

Of all Holmes's opinions the most important and the most controversial were in cases concerning the First Amendment's guarantee of freedom of speech. During World War I the federal government had prosecuted thousands of men and women who opposed or resisted mobilization. The first of these cases to come to the Court concerned speeches and leaflets that the government claimed were intended to obstruct the draft, in violation of the Espionage Act. In the first such case (Schenck v. United States, 1919) Holmes, writing for a unanimous Court, said that Congress had the power to forbid speeches and publications that threatened to interfere with the draft. Freedom of speech was not absolute: someone could legitimately be punished for falsely crying fire in a theater and causing a panic. As Congress could make it a crime to obstruct the draft, so it might also punish speech that posed a clear and present danger of having this forbidden result. Holmes then applied this standard to affirm a series of convictions for obstructing the draft, including the conviction of Eugene Debs, the Socialist candidate for President, for a speech critical of the war and of the draft.

Holmes's opinion in Schenck was generally approved at the time, but the Court never cited the clear and present danger standard except to uphold convictions, and it gradually came to be identified with the prosecutor's view. Modern commentators have criticized the Schenck opinion for giving too little protection to speech.

Holmes himself, however, strenuously objected to this one‐sided use of his opinion, and in a second group of cases decided in 1919 he dissented. It appeared to Holmes that, in this second group of cases, the federal government had broadened its campaign of prosecutions to include political dissidents as well as draft resisters and that these new defendants were being convicted for their socialist and anarchist ideas, not for any acts intended or likely to harm the war effort. In Abrams v. United States (1919), the first of these cases to be decided, Holmes restated the clear and present danger test in terms drawn from his 1894 article “Privilege, Malice, and Intent.” The defendants in Abrams had thrown leaflets from a garment factory window; neither by the external standard of foreseeability nor by the test of actual intent, Holmes said, did the defendants' acts pose a clear and present danger to the war effort.

Holmes went on to give his statement of the policy that he believed underlay the privilege afforded by the Constitution to honest expressions of opinion that posed no clear and present danger: “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 our wishes safely can be carried out [in law]” (p. 630). Political dissent was to be freely allowed; it was precisely those ideas that challenged and tested the principles of American society in the free competition of discourse that were to be most jealously protected.

Legacy

Holmes's constitutional opinions fit into a coherent view of the American system evolved from his own experiences and his studies of the common law. Holmes believed that the law of the English‐speaking peoples was an experiment in peaceful evolution in which a fair hearing in court substituted for the violent combat of more primitive societies. In the American federal system, a refinement of this experiment, the states provided “insulated chambers” for experiments in law and political economy; these experiments were to be tolerated so long as they were conducted in accordance with the rules for making fair decisions. Experiments, even in socialism, were not foreclosed by any principle fundamental to the law. Nor did Holmes believe that any religious or ethical precepts were fundamental.

To Holmes, life was a continual clash of groups—nations, races, classes—representing great conflicting principles, struggling for survival in a world of limited resources. The Constitution required only that the domestic struggle be fair and peaceful. The task of the judge was to choose fairly between contending forces. Political truth was to be worked out in the competition of the marketplace and not imposed by armies or police.

The inconsistency in Holmes's idea of the judge's role became more marked as he grew older. His Darwinist, quasi‐scientific system called for judges to serve, in the end, the survival of their own class or nation. Yet in the chivalrous system of law Holmes described, the judge must set aside his personal loyalties and views, deciding cases fairly even when that would mean death to the existing order.

Holmes's self‐denying sense of duty, his loyalty to the future of humanity rather than its present order, apparently was founded on faith in something outside the evolutionary system of law. It could not be reconciled with Holmes's system and indeed seemed to contradict it. As he grew older, Holmes's sense of duty came to predominate, so that his opinions seemed to be the impersonal voice of duty itself.

His health failed in the summer of 1931, and on 12 January 1932 he submitted his resignation to President Herbert Hoover. He died of pneumonia at his Washington, D.C., home in the early hours of 6 March 1935.

Bibliography

Alexander M. Bickel and and Benno C. Schmidt, Jr. , The Judiciary and Responsible Government, 1910–1921 (1984).
George A. Bruce , The Twentieth Regiment of Massachusetts Volunteer Infantry, 1861–1865 (1906).
Oliver Wendell Holmes, Jr. , Privilege, Malice, and Intent, Harvard Law Review 8 (1894): 1–14.
Mark DeWolfe Howe, ed., Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861–1864 (1946).
Mark DeWolfe Howe , Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 (1957).
Mark DeWolfe Howe , comp., The Occasional Speeches of Justice Oliver Wendell Holmes (1962).
Mark DeWolfe Howe , Justice Oliver Wendell Holmes: The Proving Years, 1870–1882 (1963).
Max Lerner , The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions (1943).
Sheldon M. Novick , Honorable Justice: The Life of Oliver Wendell Holmes (1989).

Sheldon M. Novick

Holmes, Oliver Wendell

WORKS BY HOLMES

WORKS ABOUT HOLMES

The career of Oliver Wendell Holmes, Jr., as a judge spanned half a century. Yet quite apart from this long and distinguished service on the highest courts of his state and nation, his pervasive influence as historian and philosopher of the law is bound to assure him a permanent place in American jurisprudence. It is his 30 notable years as an associate justice of the United States Supreme Court, however, that no doubt constitute his special claim to importance and fame as a jurist. In so many ways a true product of New England’s intel lectual aristocracy, in time he came to capture the popular imagination of the whole country.

His father was Dr. Oliver Wendell Holmes, whose work as poet, essayist, and physician was in itself a significant chapter in the flowering of America’s cultural and scientific maturity. The future judge was born in Boston on March 8, 1841, and died in Washington, D.C., on March 6, 1935. In July 1861, shortly after graduating from Harvard College, he enlisted with the Twentieth Massachusetts Volunteers and was mustered out three years later with the rank of captain. Holmes was wounded three times—at Bull’s Bluff, at Antietam, and at Marye’s Hill, Fredericksburg. Both his philosophy and his rhetoric were destined to reflect his Civil War experience. That experience may help explain “the inner resolution he felt bound to achieve …between skepticism and faith,” as Paul A. Freund has phrased it (see the foreword in Frankfurter 1938).

Once out of uniform, Holmes resolved his doubts concerning the choice of a life’s calling—philos ophy versus law—by enrolling at the Harvard Law School, where he studied between 1864 and 1866. “A man may live greatly in the law as well as else where,” he was to say many years later in “The Profession of the Law” (1962, p. 29).

It is significant that almost from the start of his law practice, scholarly interests claimed Holmes’s chief attention. As Mark DeWolfe Howe has noted, “the young lawyer’s affiliations of mind and sympathy had early shown themselves to be more with the Brahmins than with the merchants of New England” (Howe 1957-1963, vol. 2, p. 2). He served as editor of the American Law Review from 1870 to 1873 and edited the twelfth edition of James Kent’s Commentaries on American Law. But it was the publication of his book The Common Law in 1881 that doubtless established his reputation as a legal scholar, leading in the following year to his appointment as Feld professor of law at Harvard and shortly thereafter to his selection as an associate justice of the Massachusetts Supreme Judicial Court. The book is permeated by all of the major strains of thought that have come to be identified with Holmes’s outlook and method both as scholar and judge: his deep sense of history, his rejection of the rigidities of legal logic, his aversion to the confusion between law and morals, and his awareness of the psychological roots of judicial decisions. Some of the sentences of the opening paragraph have become famous in themselves:

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, 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. ([1881] 1963, p. 7)

Holmes served on the Massachusetts bench for 20 years, 1882 to 1902, the last three as chief justice. Most of his opinions dealt with the traditional concerns of common law litigation—torts, contracts, and crimes—but there were cases in which he had the opportunity to discuss broader issues of public policy and constitutional law. When that happened he usually gave expression to ideas that can also be found in his legal essays; they foreshadowed the dominant themes of his philosophy as a Supreme Court justice. He insisted that the judiciary has but a limited role to play in the process of government and that the judge must allow ample scope to the provisions of constitutions and the discretion of legislators.

It was Holmes’s dissenting opinions in labor cases, especially those in which he vindicated the rights to peaceful picketing and the closed shop, that made some circles think of him as a radical. Yet these seemingly pro-labor opinions were the result of his basically conservative slant—what he called “the battle of trade” or the “free struggle for life.” If the pursuit of economic advantage was leading businessmen to combine, he saw no reason for keeping workers from cooperating with each other in promoting their interests.

Judging from the correspondence between Henry Cabot Lodge and Theodore Roosevelt, it may have been Holmes’s views on the labor problem that induced Roosevelt to name him to the Supreme Court in 1902. Ironically, when Holmes, much to Roose velt’s displeasure, dissented only a year later from the Court’s opinion upholding the dissolution of the Northern Securities Company, he invoked the same general economic beliefs implicit in his Mas sachusetts labor opinions.

Although the number of occasions on which Holmes differed from Supreme Court majorities was comparatively small, he came to be regarded as the “great dissenter” on the Court. It was largely these dissenting opinions that made the public think of him as a liberal judge, not realizing that in private he was opposed to many of the reforms that, as a judge, he was seeking to save (Biddle 1961, p. 68).

Holmes’s reputation as a liberal no doubt originated with his celebrated 1905 dissent in Locher v. New York—an opinion which Roscoe Pound char acterized as the “best exposition” of sociological jurisprudence. In eloquent and increasingly sharp language, the justice continued to protest against the tendency of many of his colleagues to annul labor and social welfare laws because they disapproved of the policies these laws embodied. He furnished one of the best clues to the reason why he often dissented on such questions in a case in which a majority of the Supreme Court had struck down an Arizona law forbidding the use of injunctions in labor disputes. “There is nothing I more deprecate,” Holmes confessed in 1921, “than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect” (Truax v. Corrigan, 257 U.S. 312, 344).

There is still another reason for the popular image of Holmes as a liberal dissenter. In a number of free speech cases he voted against the government and spoke out in defense of the individual’s right of free expression. But he had also delivered the Court’s opinions in several cases upholding convictions under the Espionage Act of 1917, including the conviction of Eugene V. Debs, the militant head of the Socialist party. It was in the first of these wartime cases—Schenck v. United States— that he set forth his celebrated formula of “clear and present danger.” “The question in every case,” he wrote, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (249 U.S. 47, 52, 1919).

When Holmes became convinced—possibly through the influence of his frequent companion in dissent, Justice Louis D. Brandeis—that the objectionable speech or publication was not likely to bring about “a clear and present danger,” he did not hesitate to register his disagreement. His opinions in Abrams v. United States and Gitlow v. New York (268 U.S. 652, 1925) are perhaps most notable. In the Abrams dissent, Holmes said:

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. (Abrams v. United States, 250 U.S. 616, 630, 1919)

What Justice Frankfurter once said about these dissents is a good measure of Holmes’s lasting contribution as a constitutional judge: “…some of his weightiest utterances are dissenting opinions —but they are dissents that record prophecy and shape history” (Mr. Justice Holmes [1916-1930] 1931, p. 116).

Samuel J. Konefsky

[For the historical context of Holmes’s work, see the biographies ofBrandeis; Cardozo; Pound.]

WORKS BY HOLMES

(1861–1864) 1946 Touched With Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861–1864.Edited by Mark DeWolfe Howe. Cambridge, Mass.: Harvard Univ. Press.

(1861–1932) 1954 The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions. Selected and edited with introduction and commentary by Max Lerner. New York: Modern Library.

(1870–1935) 1936 Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers. Edited and annotated by Harry C. Shriver, with an introduction by Harlan Fiske Stone. New York: Central.

(1874–1932) 1961 Holmes, Oliver wendell; and Pollock, FrederickHolmes-Pollock Letters: The Cor respondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932. 2d ed., 2 vols. Edited by Mark DeWolfe Howe. Cambridge, Mass..- Belknap Press.

(1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.

(1883–1902) 1940 The Judicial Opinions of Oliver Wendell Holmes. Edited by Harry C. Shriver. Buffalo, N.Y.: Dennis.

(1885–1918) 1952 Collected Legal Papers. Edited by Harold J. Laski. New York: Smith.

(1902–1928) 1929 The Dissenting Opinions of Mr. Justice Holmes. Edited by Alfred Lief. New York: Vanguard.

(1903–1930) 1931 Representative Opinions of Mr. Justice Holmes. Edited by Alfred Lief. New York: Vanguard.

(1903–1935) 1964 Holmes, Oliver Wendell; and Ein stein, LewisThe Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein. 1903–1935. Edited by James Bishop Peabody. New York: St. Martins.

(1916–1935) 1953 Holmes, Oliver Wendell; and Laski, harold J. Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935. Edited by Mark DeWolfe Howe, with a foreword by Felix Frankfurter. 2 vols. Cambridge, Mass.: Harvard Univ. Press.

1948 Holmes, Oliver wendell; and Cohen, morris R. Holmes-Cohen Correspondence. Journal of the History of Ideas 9:3–52.

1962 Occasional Speeches. Compiled by Mark DeWolfe Howe. Cambridge, Mass.: Belknap Press.

WORKS ABOUT HOLMES

Bent, silas 1932 Justice Oliver Wendell Holmes: A Biography. New York: Vanguard.

Biddle, francis B. 1942 Mr. Justice Holmes. New York: Scribner.

Biddle, francis B. 1961 Justice Holmes, Natural Law and the Supreme Court. New York: Macmillan.

Bowen, catherine drinker 1944 Yankee From Olympus: Justice Holmes and His Family. Boston: Little.

Frankfurter, Felix (1938) 1961 Mr. Justice Holmes and the Supreme Court. 2d ed. Foreword by Paul A. Freund. Cambridge, Mass.: Belknap Press.

Howe, mark dewolfe 1957-1963 Justice Oliver Wendell Holmes. 2 vols. Cambridge, Mass.: Belknap Press. → Volume 1: The Shaping Years, 1841–1870. Volume 2: The Proving Years, 1870–1882.

Konefsky, samuel J. 1956 The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas. New York: Macmillan.

Mr. Justice Holmes: Contributions by Benjamin N. Car-dozo, Morris R. Cohen, John Dewey…. (1916–1930) 1931 Edited by Felix Frankfurter. New York: Coward-McCann.

HOLMES, OLIVER WENDELL, JR.

Oliver Wendell Holmes Jr. was a justice of the U.S. Supreme Court and legal philosopher who has become a celebrated legal figure. His writings on jurisprudence have shaped discussions on the nature of law, and his court opinions have been studied as much for their style as for their intellectual content. Though Holmes has been widely praised, he does have critics who contend that he paid too much deference to the power of the state to control individual freedom.

Holmes was born March 8, 1841, in Boston. His father, Oliver Wendell Holmes Sr., was a well-known physician, a lecturer at Harvard Medical School, an author who was widely read in England and the United States, and a founder of the Atlantic Monthly. Holmes attended private school and then Harvard College, graduating in 1861. With the outbreak of the Civil War in 1861, Holmes enlisted as an officer in the Twentieth Massachusetts Volunteer Infantry.

His military service was difficult. Holmes was wounded three times, twice almost fatally, and suffered from dysentery. In 1863 he accepted a position as an aide to a Union general, and he served in that capacity until 1864. He resigned his commission before the end of the war and returned, exhausted, to Boston, where he began preparations for a legal career.

He attended Harvard Law School and graduated in 1866. He was admitted to the Massachusetts bar in 1867. Because of inherited wealth Holmes had the financial luxury of pursuing his intellectual interests. He edited the twelfth edition of jurist James Kent's Commentaries on American Law (1873) and wrote many articles for the American Law Review. Following his marriage to Fanny Dixwell in 1873, Holmes joined a prominent Boston law firm, where he practiced commercial law.

Holmes did not abandon his inquiries into the nature of law. He was invited to Boston to present a series of lectures on the law, which were published in 1881 as The Common Law. This volume is the most renowned work of legal philosophy in U.S. history. It allowed Holmes systematically to analyze, classify, and explain various aspects of U.S. common law, ranging from torts to contracts to crime and punishment.

In The Common Law, Holmes traced the origins of the common law to ancient societies where liability was based on feelings of revenge and the subjective intentions of a morally blameworthy wrongdoer. For example, Holmes observed that in such societies creditors were permitted to cut up and divide the body of a debtor who had breached the terms of a contract. Advanced societies, Holmes noticed, no longer settle contractual disputes in such a barbaric fashion. These societies have evolved to the point where liability is now premised on objective and external standards that separate moral responsibility from legal obligation, and wholly eliminate concerns regarding the actual guilt of the wrongdoer. Holmes noted that common-law principles require judges and juries to interpret contractual relations from the perspective of an average person with ordinary intelligence, regardless of how a particular agreement may have actually been understood or performed by the parties themselves.

The importance of The Common Law rests in its rejection of the idea that law is a logical system and that legal systems obey the rules of logic. In his most famous quotation, Holmes concluded,

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, 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.

Holmes's jurisprudence led to the conclusion that judges first make decisions and then come up with reasons to explain them. His approach, which has been characterized as cynical, touched a nerve with succeeding generations of legal scholars. He had a profound effect on the development of sociological jurisprudence and legal realism. Sociological jurisprudence and legal realism were twentieth-century schools of thought that emphasized the need to examine social, economic, and political forces rather than confine the study of law to logic and abstract thought.

Holmes joined the faculty of the Harvard Law School in 1882, then left after one semester to accept an appointment as justice on the Supreme Judicial Court of Massachusetts, the highest tribunal in the state. In 1899 he was appointed chief justice of that court, and he served in that position until 1902, when President theodore roosevelt named him to the U.S. Supreme Court.

His service on the Supreme Court gave Holmes the opportunity to apply his philosophy.

He believed that judges should not impose their private beliefs on law, especially law created by a legislature. When reviewing the constitutionality of legislation, Holmes said a legislature can do whatever it sees fit unless a law it enacts is not justified by any rational interpretation of, or violates an express prohibition of, the Constitution (Tyson & Brothers United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S. Ct. 426, 71 L. Ed. 718 [1927]). Holmes was skeptical about his ability to determine the "goodness or badness of laws" passed by the legislature, and felt that in most situations he had no choice but to practice judicial restraint and defer to the desires of the popular will.

Holmes's dissenting opinion in lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), is recognized as his most famous opinion. It is based on the idea of judicial restraint. In Lochner Holmes disagreed with the majority, which struck down a New York law that limited the number of hours a baker could work during a week. The majority held that the law violated the "liberty of contract" guaranteed by the fourteenth amendment, which provides that no state is to "deprive any person of life, liberty, or property, without due process of law" (§ 1). In his dissent Holmes suggested that the majority had based its decision on its members' personal ideological preference for freedom of contract, and not on the Constitution. He said it was improper to overturn a legislative act simply because the Court embraced an economic theory antagonistic to government work regulations.

But Holmes rarely deferred to the popular will in cases raising free speech questions under the first amendment. If the law must correspond to powerful interests in society, Holmes reasoned, then all facets of society must be given a fair opportunity to compete for influence through the medium of public speech. In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), Holmes dissented from a decision upholding the conviction of a man who had been arrested for violating the New York Criminal Anarchy Law (N.Y. Penal Law §§ 160, 161 [ch. 88, McKinney 1909; ch. 40, Consol. 1909]) by advocating the establishment of a socialist government. In his dissent he argued for "the free trade in ideas" as the best way of testing the truth of particular beliefs. He stated that freedom of speech must be permitted unless it is intended "to produce a clear and

imminent danger." This "clear-and-imminent-danger" test for subversive advocacy was first labeled by Holmes as the "clear-and-present-danger" test in schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919). It remains influential as a way of protecting what Holmes termed the marketplace of ideas.

Holmes also contributed to modern fourth amendment jurisprudence. In olmstead v. united states, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), the Supreme Court ruled that incriminating evidence illegally obtained by the police was admissible against a defendant during prosecution. Foreshadowing the Court's later recognition of an exclusionary rule that prohibits prosecutors from using illegally obtained evidence during trial, Holmes wrote that the "government ought not to use evidence" that is "only obtainable by a criminal act" of the police. While acknowledging the legitimate objectives of law enforcement, Holmes concluded that it was "a less[er] evil that some criminals should escape than that the government should play an ignoble part."

"If there is any principle of our Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but for the thought that we hate."
—Oliver Holmes Holmes Jr.

Despite Holmes's substantial reputation, he is not without critics. buck v. bell, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927), is the case most frequently cited to point out faults in his jurisprudence. In his majority opinion in Buck, Holmes upheld the constitutionality of a state statute (Va. Law of March 20, 1924, ch. 394) authorizing the sterilization of "feeble-minded" (mentally retarded) persons. Reviewing the family history of Carrie Buck, her mother, and her daughter, Holmes stated, "Three generations of imbeciles are enough." He believed that sterilization was the best way to end the procreation of mentally retarded persons, and in looking at these three generations of women he believed they were all mentally retarded. Later evidence suggested that none of the three were in fact mentally retarded. The case also suggested that deference to legislative acts, such as forced sterilization, was not an unfettered good and that questions of morality and justice have a place in the law, despite Holmes's protests to the contrary.

Holmes's jurisprudence also suggested that the law is what the government says it is. This approach, called legal positivism, was called into question in the 1930s and 1940s with the rise of totalitarian regimes in Germany and Italy and the rule of Stalin in the Soviet Union. Many legal scholars criticized positivism as lacking a basis in morality and fundamental societal values.

Holmes retired from the Supreme Court in 1932. He died in Washington, D.C., on March 6, 1935, two days before his ninety-fourth birthday.

further readings

Alschuler, Albert W. 2000. Law Without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: Univ. of Chicago Press.

Burton, David H. 1998. Taft, Holmes, and the 1920s Court: An Appraisal. Madison, N.J.: Fairleigh Dickinson Univ. Press; London; Cranbury, N.J.: Associated Univ. Presses.

Coper, Michael. 2003. "The Path of the Law: A Tribute to Holmes." Alabama Law Review 54 (spring): 1077–89.

George, Robert P. 2003. "Holmes on Natural Law." Villanova Law Review 48 (February): 1–11.

Kellogg, Frederic R. 2003. "Holmes, Common Law Theory, and Judicial Restraint." John Marshall Law Review 36 (winter): 457–505.

cross-references

Clear and Present Danger; Judicial Review; Labor Law; "The Path of the Law" (Appendix, Primary Document).

HOLMES, OLIVER WENDELL, JR. 1841-1935

Associate justice of the supreme court

A New Age Arrives

The evolution of the Supreme Court as an institution has historically occurred in a series of stages, each of which tends to overlap the next, thus blurring the boundaries between them, and sometimes obscuring the significance of events occurring during these transitional periods. More often than not, these stages serve as a framework within which the forces that have influenced the Court's decisions are to be understood. Occasionally, but rarely, the transition from one era to another has been symbolized by the presence on the Court of a justice whose stature, ability, and performance make him the embodiment of the new age. Oliver Wendell Holmes Jr. was that kind of a justice. Despite his strengths, however, he was never able entirely to escape the Darwinian and Spencerian influences of his formative years as a lawyer. Like the judges he often criticized, Holmes possessed preconceptions of his own, notions and biases reflecting the values by which he had been reared and that represented the views of the age in which he lived. But he developed a deep skepticism for the legal doctrines and precedents that his contemporaries were disposed to treat as truths, both universal in scope and unchanging in nature. This above all sets him apart from his contemporaries and places him well ahead of his time. During his lengthy term as an associate justice, the U.S. Supreme Court issued more than six thousand opinions, only seventy of which were accompanied by the dissents for which he would become so famous. What made these dissents so significant, however, was the fact that in almost every instance they reflected a line of reasoning that foreshadowed things to come. They proved to be the harbingers of a new age in legal thought and constitutional development.

Soldier, Lawyer, Legal Scholar, Educator, and State Supreme Court Justice

Born and raised in Boston, this son of one of the city's established and most distinguished families would forever revere his cultural heritage and the unique history with which his surroundings were so imbued. Though temperamentally and intellectually rooted in his milieu, Holmes possessed a restless mind and was given to ruminations that would often inspire him to view his environment from an entirely different perspective, a trait that would remain with him throughout his long life. In 1857 he enrolled at Harvard University and would have graduated but for the outbreak of the Civil War. Commissioned an officer in the Twentieth Massachusetts Regiment, he served for three years and suffered three wounds, each of which was serious enough to require a period of convalescence before he could to return to duty. No other event would so deeply affect his personality and outlook as his experience on the battle-field, where whatever assurance he had found in the orderliness of his life, in his faith in the inevitability of human progress, had been seriously shaken. For him, nothing could ever again be thought of as unchanging, and change itself could no longer be thought of as being always for the good. In 1864 Holmes somewhat reluctantly took up the study of law, graduating from the Harvard Law School in 1866 and gaining admission to the Massachusetts State Bar the following year. Although he diligently applied himself to the grinding routine so characteristic of the practice of law, it was his work between 1870 and 1873, as an editor of the American Law Review, to which he truly and happily devoted himself. Taking what advantage he could of the opportunity to immerse himself in the legal literature of the day, he indulged his interest in the philosophical underpinnings and origins of the law and developed a much-deserved reputation as a legal scholar. In 1880 he completed and published a collection of his essays, The Common Law, which came to be regarded as a work of great significance. Holmes's writings revealed him as a man who rejected the traditional view of the law as a fixed and unchanging set of maxims and whose pragmatism placed far heavier emphasis upon the lessons of experience than they did upon blind and unbending adherence to established rules and concepts. In January 1882 he was appointed to a newly created chair at the Harvard Law School, where he served as an instructor until his appointment to the Massachusetts Supreme Court in December of that year. He remained a highly visible and sometimes controversial figure on that bench until 1902, three years after he had assumed the duties of chief justice of the state's highest court.

The New Associate Justice

At some point Theodore Roosevelt, then president of the United States, was forced to set aside the misgivings he had regarding his nominee for the Supreme Court and to throw his full weight behind Holmes's confirmation as an associate justice. Holmes's record as a state supreme court justice had been impressive and, for the president, somewhat reassuring; but could he be trusted to promote and preserve the administration's program of reform? Many of Holmes's decisions, reaching beyond the conservatism so characteristic of the other members of the Massachusetts high court, had been well received by the progressive circles in the region from which the president had drawn much needed support. It would not be long, however, before Holmes would give Roosevelt reason to regret his choice, to move the president to compare the strength of the justice's backbone with that found in a banana. Though the majority had decided in favor of the government and had extended the reach of the antitrust laws in the case of Northern Securities Company v. United States, Holmes had found reason to dissent, and did so in a manner that, while infuriating the president, had clearly affirmed his independence as a judge.

The Great Dissenter

As time passed, certain distinctive patterns in Holmes's performance as a justice began to emerge. Holding firmly to his faith in the process of trial and error, Holmes early embraced and became an advocate for the policy of judicial restraint. Unlike his friend and frequent fellow dissenter, Justice Louis D. Brandeis, he did not believe that every exercise of power for or in the public's interest would necessarily result in some measure of progress. Tinkering with the system bore no special attraction for him, but he remained a firm believer in the public's and the legislature's right to tinker, and to do so unimpeded by a judicial process he viewed as often reactionary. Holmes had no regard for the "black letter" approach to the interpretation of the law, the tradition of accepting the dictates of precedent as the only permissible view. He believed, instead, that the Constitution served as a framework within which the most significant issues of the day could be determined, addressed, and, with a little patience, quite possibly resolved. Though increasingly uncomfortable with the results of the political process to which he felt such responsibility, Holmes remained acutely aware of his own small place in that process, striving, as he often remarked, to remind himself that he was not God, nor, necessarily, an effective arbiter between what was good and what was considered bad. There are those who credit him with the introduction of a new age on the Court, with being among the first to appreciate and accept changes in the nation's attitude toward and perception of the government's role in all facets of national life. That is not entirely correct. It would be more accurate to say that he believed all the world and everything in it to be in a state of transition and that he recognized the folly of attempting to bring order to a universe that resisted order and imposed its own will upon the affairs of men. Man's efforts to achieve some degree of order required guidance, a point of reference, and he readily acknowledged that, but the function of law, he believed, was to provide the means by which people could contend with the challenges they faced. At the center of Holmes's insight was his view of the law as an evolving process, which, like the world itself, was in constant movement. He believed that it was the function of the courts to reconcile this process with changes in the country's social, economic, and political life, while scrupulously avoiding the temptation to interfere, Holmes's dissents, for which he gained much fame, often revealed the high regard he held for the principles he believed were embodied in the Constitution. His dissent in the 1919 case of Abrams v. United States, for example, was a masterful statement of his belief that free expression was the greatest protection any democracy could hope for in controlling its propensity for excess or, as was the case, the repression of opposing or unpopular views. In time the Great Dissenter's perspectives would become those of the majority of the justices, and a new era for the Court would begin.

Source:

Liva Baker, The Justice From Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: HarperCollins, 1991).

Oliver Wendell Holmes Jr.

As a jurist and a legal writer, Oliver Wendell Holmes, Jr. (1841-1935), contributed mightily to the debate in the early 20th century concerning the role of law in a rapidly changing America.

The U.S. government is based on a document written in 1787, the Constitution, and an issue almost from the beginning of the new nation was the extent to which the demands of an ever-changing society could be encompassed within this structure. Few men played a more important role in this discourse than Oliver Wendell Holmes, Jr. Not only did he personally contribute to the debate, but he also served as a symbol to a generation of legal and political thinkers.

Oliver Wendell Holmes, Jr., was born in Boston, Mass., on March 8, 1841, into one of the city's most illustrious families. His father, Oliver Wendell Holmes, among the leading medical practitioners of his day, was also a writer and wit, famous to readers of the Atlantic Monthly as "the autocrat of the breakfast table." His family life brought young Oliver into contact with many of Boston's leading intellectuals, including Ralph Waldo Emerson, America's foremost essayist and lecturer during this period.

Harvard and the Civil War

Holmes entered Harvard College in 1857. There is little evidence that his college education was of great importance to him. Aside from the education he received simply by virtue of his family's ties, Holmes's greatest learning experience was his part in the Civil War. His participation in many battles resulted in three wounds, of which he was very proud. Thoughout the rest of his life he marked his wounds' anniversaries in letters to various correspondents. He left the military in July 1864.

The impact of the war on Holmes had less to do with the political issues over which it had been fought than with its demonstration of the importance of commitment to a higher cause. Holmes grew up in a world where many accepted beliefs were being challenged, and his response stressed the importance of devoting oneself to a cause even if it was incomprehensible. In his speech "The Soldier's Faith, " he said: "I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there 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, in a plan of campaign of which he has no notion, under tactics of which he does not see the use."

Furthermore, the war confirmed Holmes's rejection of sentimentality and even humanitarianism. He regarded all of life as a battle, with victory going to the strongest. In this way he fully accepted the emphasis of his age on "survival of the fittest." Unlike many of his contemporaries, however, he pointed out that the strongest force in a society was its majority. When he became a judge, he used this argument to favor judicial acquiescence before majority rule.

Legal Career

After leaving the regiment Holmes attended Harvard Law School, from which he graduated in 1866. He was admitted to the Massachusetts bar the following year. After his first trip to England, he threw himself into his legal career, both as a practitioner and as a scholar. After experience in other firms, he helped found the firm of Shattuck, Holmes and Munroe, where he primarily practiced commercial law. The time that remained after practice he used for scholarly work.

Between 1870 and 1873 Holmes edited the American Law Review. Furthermore, 1873 saw the publication of the twelfth edition of Chancellor James Kent's classic Commentaries on American Law, which Holmes had brought up to date. Throughout the 1870s Holmes was also researching the questions he would consider in a set of lectures at the Lowell Institute in 1880. These, published the following year as The Common Law, brought him worldwide fame.

The first paragraph of The Common Law contains what is probably Holmes's most famous sentence: "The life of the law has not been logic: it has been experience." He goes on to argue that law is a series of responses to felt social problems, not simply a set of logical deductions from abstract theories. His book contributed to the awakening interest in the United States in "sociological jurisprudence, " the interrelation between law and other social institutions.

Judicial Career

After less than a year as professor of law at Harvard Law School, Holmes became an associate justice of the Supreme Judicial Court of Massachusetts on Jan. 3, 1883. He was promoted to chief justice on Aug. 5, 1899. His reputation as a daring thinker grew during his tenure on the court, principally because of several opinions, some dissenting, in which he upheld the right of the state to engage in regulation of the economy and other social issues.

When Theodore Roosevelt became president in 1901, he was eager to appoint men to the Supreme Court who would uphold the new laws he himself wanted passed and who would confirm the changing conception of the role of government with which he was identified. Viewing Holmes as such a man, Roosevelt appointed him to the U.S. Supreme Court; Holmes took his seat on Dec. 8, 1902, at the relatively advanced age of 61. He served on the Court until Jan. 12, 1932.

Holmes's most important early opinions dealt with regulation of the national economy. He argued vigorously for wide latitude for the states in this and in other areas of social policy. His most famous opinion in the economic sphere is probably Lochner v. New York; he dissented when the Court struck down a New York law limiting the hours a baker could be made to work. He rejected the Court's social theorizing; for him the key question was not the correctness or incorrectness of economic theories but rather "the right of a majority to embody their opinions in law."

Holmes became even more famous after World War I because of his opinions regarding the regulation of freedom of speech. Though his reasoning was not always impeccable, he used his writing skills (probably the greatest of any Supreme Court justice in American history) to evoke a powerful sense of the importance of civil liberties. In Schenck v. United States (1919) he upheld the conviction of a man who had advocated draft resistance, but only after finding him a "clear and present danger" to the peace and order of society. He later dissented from other convictions of political dissidents whom he did not regard as presenting that threat.

In Abrams v. United States (1919) Holmes wrote his most passionate defense of free speech, arguing that only a "free trade in ideas" could guarantee the attainment of truth. He argued 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 immediately threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

Tall, erect, and handsome in his youth, Holmes had grown into an even more imposing man, with a splendid handlebar moustache and white hair. As an elderly judge, he was surrounded often by admiring younger men and was, by all accounts, a lively figure. In his old age he was increasingly admired by many of those who would lead the next political generation. He left the Court before it accepted his theories concerning its role in regulating the economy (as it did, indeed, accept them in the 1940s).

Holmes had married Fanny Dixwell on June 17, 1872. The marriage lasted until her death in 1929; they had no children. Holmes died on March 6, 1935.

Further Reading

A source for Holmes's own writings is Max Lerner, ed., The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions, which also contains Lerner's important introduction to Holmes. Catherine Drinker Bowen, Yankee from Olympus: Justice Holmes and His Family (1944), is a popular biography that has had a great public impact. Mark DeWolfe Howe completed two volumes of the definitive scholarly biography before his death; Justice Oliver Wendell Holmes: The Shaping Years, 1841-1870 (1957) and The Proving Years, 1870-1882 (1963). Felix Frankfurter, Mr. Justice Holmes and the Supreme Court (1938; 2d ed. 1961), is a laudatory assessment of Holmes. For specific treatment of Holmes's judicial career see Samuel J. Konefsky, The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas (1956). Recommended for general background are Eric F. Goldman, Rendezvous with Destiny: A History of Modern American Reform (1952; rev. ed. abr. 1956), and Arthur M. Schlesinger, Jr., The Age of Roosevelt, vol. 1 (1957). □

Oliver Wendell Holmes

Oliver Wendell Holmes (1809-1894), American physician and author, contributed to the advancement of medicine and wrote witty essays and popular poems.

Oliver Wendell Holmes was born in Cambridge, Mass., on Aug. 29, 1809, scion of a well-established New England family. Following his graduation from Harvard in 1829, he studied at the law school for a year (during which time he wrote the popular poem "Old Ironsides"). He gave up law in favor of a career in medicine. He rounded out his training at the Harvard Medical School with 2 years of study in Paris (1833-1835), where he learned new techniques and approaches in medicine, reflected in two important early papers, "Homeopathy, and Its Kindred Delusions" (1842) and "The Contagiousness of Puerperal Fever" (1843).

Holmes took his medical degree at Harvard in 1836. From 1838 to 1840 he served as professor of anatomy at Dartmouth College. In 1840 he married Amelia Lee Jackson and returned to general practice. He was appointed Parkman professor of anatomy and physiology at Harvard Medical School in 1847 and served as dean from 1847 to 1853. Holmes remained at Harvard until 1882 and established himself as an excellent lecturer and teacher.

Holmes's deterministic belief that man was the product of his heredity and environment provided the direction for his three pioneering, psychologically oriented "medicated" (as he termed them) novels: Elsie Venner (1861), The Guardian Angel (1867), and A Mortal Antipathy (1885).

Holmes held very definite opinions on a wide variety of subjects. He found the perfect outlet for expressing his ideas in the pages of the Atlantic Monthly, to which he contributed several series of chatty essays interspersed with light poetry. These were gathered in The Autocrat of the Breakfast-Table (1858), The Professor at the Breakfast-Table (1860), The Poet at the Breakfast-Table (1872), and Over the Teacups (1891). In addition to these and his volumes of verse, he also wrote biographies of John L. Motley (1879) and Ralph Waldo Emerson (1885). Among his best-known poems are "The Deacon's Masterpiece, " "The Last Leaf, " "The Chambered Nautilus, " "My Aunt, " "The Moral Bully, " and "Brother Jonathan's Lament for Sister Caroline."

As scientist, teacher, lecturer, essayist, and writer of light verse, Holmes left his mark on his age, and many honors came to him both at home and abroad. He died on Oct. 7, 1894.

Further Reading

The Writings of Oliver Wendell Holmes (13 vols., 1891-1892) is standard. The Complete Poetical Works of Oliver Wendell Holmes (1895) is an excellent one-volume edition. The best biography is Eleanor M. Tilton, Amiable Autocrat: A Biography of Dr. Oliver Wendell Holmes (1947). A sound study is Mark A. De Wolfe Howe, Holmes of the Breakfast-Table (1939). Clarence P. Oberndorf offers a stimulating discussion and abridgments of Holmes's "medicated" novels in The Psychiatric Novels of Oliver Wendell Holmes (1943; 2d ed. 1946). □

Holmes, Oliver Wendell, Jr. (1841–1935), son and namesake of the well‐known writer and professor of medicine, was himself professor of law at Harvard, chief justice of the Massachusetts supreme court (1899–1902), and associate justice of the U.S. Supreme Court (1902–32). His writings include The Common Law (1881), Speeches (1891, 1913), and Collected Legal Papers (1920), all exhibiting his distinction of mind and liberal views. Felix Frankfurter wrote Mr. Justice Holmes and the Constitution (1927). Touched with Fire (1946) collects his Civil War diary and letters. His correspondence with Sir Frederick Pollock was published in 1941, and his letters to and from Harold J. Laski, in 1953. He is the subject of more popular treatment in Catherine Drinker Bowen's biography, Yankee from Olympus (1944), and Emmet Lavery's play The Magnificent Yankee (1946).

Holmes, Oliver Wendell (1809–94), American writer, was professor of anatomy and physiology at Harvard University (1847–82). His Autocrat of the Breakfast-Table appeared in the Atlantic Monthly in 1857–8, The Professor at the Breakfast-Table in 1860, The Poet at the Breakfast-Table in 1872, and Over the Tea-cups in 1891. His essays in the Breakfast-Table series are notable for their kindly humour and width of erudition; they take the form of discourses by the author, the other characters being listeners, who interpose occasional remarks. He also wrote novels, essays, and memoirs of Emerson and Motley, and a considerable quantity of mainly light and occasional verse.

Holmes, Oliver Wendell, Jr (1841–1935) US jurist and legal scholar, son of Oliver Wendell Holmes. He co-edited the American Law Review (1870–73) and Kent's Commentaries (1873), and wrote The Common Law (1881). A justice (1882–99) and then chief justice (1899–1902) of the Massachusetts Supreme Court, he became an associate justice of the US Supreme Court (1902–32). He supported laws protecting child labour and was a champion of civil liberties.

Holmes, Oliver Wendell (1809–94) US writer and physician. Holmes' best literary work takes the form of humorous table talk, such as The Autocrat of the Breakfast Table (1857–58), The Professor at the Breakfast Table (1860), and The Poet at the Breakfast Table (1872). He was also a respected professor of medicine at Harvard University.