Oliver Wendell Holmes
Holmes, Oliver Wendell
Holmes, Oliver Wendell
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. ( 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
(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.
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.
Holmes, Oliver Wendell, Jr.
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 ). 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.
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.
Holmes Jr., Oliver Wendell
Born: March 8, 1841
Died: March 6, 1935
American Supreme Court justice and legal writer
As a Supreme Court justice and a legal writer, Oliver Wendell Holmes Jr. was a key figure in the debate concerning the role of law in a rapidly changing America during the early twentieth century. Not only did he personally contribute to the debate, but he also served as a symbol to a generation of legal and political thinkers.
Born into a celebrated Boston family
Oliver Wendell Holmes Jr. was born in Boston, Massachusetts, on March 8, 1841, into one of the city's most celebrated families. His father, Oliver Wendell Holmes, was a leader in the medical profession as well as a famous writer for the Atlantic Monthly, a popular political magazine in its time. His family life brought young Oliver into contact with many of Boston's leading intellectuals, including Ralph Waldo Emerson (1803–1882), America's most famous essay writer and lecturer during this period.
Harvard and the impact of the Civil War
Holmes entered Harvard College in 1857. There is little evidence that his college education was of great importance to him. Instead, Holmes's greatest learning experience was his part in the American Civil War (1861–65). The Civil War began as an attempt by the federal government of the United States to preserve the Union after eleven Southern states chose to leave and form an independent nation. The war also involved the issue of whether or not slavery would remain legal in parts of the country. After the federal government and the Northern states won the war, the Union was preserved and slavery was no longer allowed in any part of the United States. Holmes's participation in many battles resulted in three wounds, of which he was very proud. 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. America was changing rapidly, and Holmes grew up in a world where many accepted beliefs were being challenged. Holmes responded by developing a belief in the importance of devoting oneself to a cause even if it was incomprehensible, or unable to be understood by everyone.
Furthermore, the war supported Holmes's belief that all of life is 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 peers, however, he pointed out that the strongest force in a society was its majority, a belief he would stand by during his later career as a judge.
After the war Holmes attended Harvard Law School and graduated in 1866. The following year he was admitted to the Massachusetts bar, an association for lawyers. After his first trip to England, he threw himself into his legal career. He eventually helped found the firm of Shattuck, Holmes and Munroe. The time that remained after law practice he used for law study. In 1872 Holmes married Fanny Bowditch Dixwell, the daughter of his former schoolmaster.
Between 1870 and 1873 Holmes edited the American Law Review, a distinguished law publication. Holmes also updated the publication of the classic work Commentaries on American Law (1873), written by Chancellor James Kent (1863–1847).
Throughout the 1870s Holmes was also researching the questions he would discuss 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 social problems, not simply a set of theories that are difficult to understand. His book contributed to the awakening interest in the United States in "sociological jurisprudence," or the relationship between law and other social institutions.
Career as a judge
Holmes then became a professor of law at Harvard Law School. He had worked in this position for less than a year when he became an associate justice of the Supreme Judicial Court of Massachusetts on January 3, 1883. He was promoted to chief justice on August 5, 1899, and his reputation as a daring thinker began to grow. Many of Holmes's groundbreaking opinions upheld the right of the state to regulate the economy and other social issues.
Theodore Roosevelt (1858–1919) became president in 1901. The new president was eager to appoint men to the Supreme Court who would help change the role of government and would uphold the new laws he himself wanted to pass. Viewing Holmes as such a man, Roosevelt appointed him to the U.S. Supreme Court. Holmes took his seat on December 8, 1902, at the age of sixty-one.
Holmes's most important early opinions dealt with regulation of the national economy. His most famous opinion of the economy is probably Lochner v. New York. In this case, Holmes strongly disagreed 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 thinking. For him the key question was not whether or not this was right or wrong but rather "the right of a majority to embody their opinions in law."
Freedom of speech
Holmes became even more famous after World War I (1914–18) because of his opinions regarding the regulation of freedom of speech. Although his reasoning was not always faultless, he used his superb writing skills to raise a powerful sense of the importance of civil liberties, or freedoms.
In Schenck v. United States (1919) Holmes upheld the conviction of a man who had encouraged people to resist the draft. (The draft was a federal law that ordered men to register with the military in case they would be needed in times of war.) Holmes's support of this conviction was not because the man ignored federal law, rather that he was a "clear and present danger" to the peace and order of society.
In Abrams v. United States (1919) Holmes wrote his most passionate defense of free speech. He argued that only a "free trade in ideas" could guarantee the truth and that defense of freedom of speech is essential.
The admired justice leaves the court
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 Supreme Court on January 12, 1932, before it accepted his theories concerning its role in regulating the economy. (The Court would later accept them in the 1940s.)
Holmes died on March 6, 1935, in Washington, D.C. Oliver Wendell Holmes Jr. was a legal trailblazer who helped define the role of law in the twentieth century. His theories and ideas are as relevant today as they were when he wrote them.
For More Information
Holmes, Oliver Wendell. The Essential Holmes. Edited by Richard A. Posner. Chicago: University of Chicago Press, 1992.
White, G. Edward. Oliver Wendell Holmes: Sage of the Supreme Court. New York: Oxford University Press, 2000.
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.
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.
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.
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). □
Holmes, Oliver Wendell
Born: August 29, 1809
Died: October 7, 1894
American physician, author, professor
American physician, teacher, and author Oliver Wendell Holmes contributed to the advancement of medicine and literature. He is also known for writing the famous poem "Old Ironsides."
Oliver Wendell Holmes was born in Cambridge, Massachusetts, on August 29, 1809, to a well-established New England family. His father, Abiel Holmes, was a reverend in the First Congregational Church. His mother, Sarah Wendell, daughter of a Boston merchant, came from a long line of Dutch ancestors who settled in New England. Although his father was a Calvinist (follower of John Calvin's study of religious faith, which strongly emphasized the supreme power of God and His foreknowledge of a believer's future) by training, he was very open to Christians of all faiths. He was a fair-minded man and a well-educated father, having a library of two-thousand books for his children to read. Oliver was the fourth of five Holmes' children, with three older sisters and one younger brother. Paul Bunyan's classic allegory (symbolic story) had a big impact on Oliver's lifetime religious views. He rejected many of the Calvinist ideas he was surrounded with in childhood, and this independence often leaned toward rebellion.
At age fifteen Oliver attended Phillips Andover Academy. He was instantly popular with his teachers his first year, when he translated Virgil's (70–19 b.c.e.) Aeneid from Latin into English. It is possible that Oliver's father thought the Calvinist focus at Andover would make a minister out of Oliver, but Oliver later wrote in Life and Letters, "I might have been a minister myself, if a [certain] clergyman had not looked and talked so like an undertaker."
Holmes continued his studies at Harvard University in 1825, graduating in 1829. Harvard's strong Unitarian (church stressing individual freedom of belief) influences only strengthened Oliver's rejection of Calvinism. This first time at Harvard was when he began to enjoy writing. Publishing poems in Harvard's The Collegian and later in the New England Galaxy and Amateur gave him quite a bit of pleasure. His writing did not keep him from being social, as he had many friends and joined Phi Beta Kappa (an honor society made up of American college students and graduates who have excelled in liberal arts and sciences). Holmes's joy in life was evident with his possession of a fast horse and buggy and several rowboats at the ready. Holmes was also a fan of the racetrack and boxing rings.
After Holmes graduated from Harvard in 1829, he studied at the law school for a year, during which time he wrote the popular poem "Old Ironsides". His pencil-written poem was about the destruction of a once useful warship, the USS Constitution.
A year after the publication of "Old Iron-sides," Holmes started writing prose (literature different from poetry because of its irregular patterns and lack of rhyme) in the New England Magazine. This was a new publication and Holmes was an early contributor (one who writes for the magazine or newspaper), publishing "The Autocrat at the Breakfast Table" in the fifth month's copy. A year later he published another by the same title, and then five years later, in November 1857, he published an even longer version in the brand new Atlantic Monthly. He found the perfect place to express his very definite ideas in the pages of the Atlantic Monthly. In addition to these articles and his volumes of verse, he also wrote biographies: John L. Motley's (1814–1877) in 1879, and Ralph Waldo Emerson's (1803–1882) in 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."
In the same year of Holmes's writing success, he decided to give up law in favor of a career in medicine. He started at the Boston Medical College and finished up at Harvard Medical School. He rounded out his training with two years of study in Paris from 1833 to 1835. France was considered the medical center of the world. Holmes was honored to work under the surgeon Larrey, reported to be Napoleon's (1769–1821) favorite. Here he learned new techniques and approaches in medicine, reflected in two important early papers: "Homeopathy, and Its Kindred Delusions" in 1842, and "The Contagiousness of Puerperal Fever" (an unpredictable and often deadly difficulty of childbirth) in 1843. This was to be the medical work for which he is most remembered.
Holmes took his medical degree at Harvard in 1836. Although he began a general practice (active medical office) in Boston, it was his medical writings and teaching of anatomy that set Oliver Wendell Holmes apart. Nevertheless, Ralph Waldo Emerson encouraged his poetry. Due to the encouragement, Holmes published Poetry.
Continuing to balance both writing and medicine, in 1836 Holmes received the Boylston Prize from Harvard for a medical essay, as well as two more in 1837. From 1838 to 1840 he served as professor of anatomy at Dartmouth College. Despite his inability to travel widely in the United States due to his asthma, Holmes delivered many lectures on the topics of both science and literature. His medical writing often became lecture material that only added to his popularity as a scholar and a public figure. Of his lecturing style students said, "He enters, and is greeted by a mighty shout and stamp of applause." The other professors requested that Holmes teach the last of the five morning lectures, because they knew he could hold the students' attention even though they were tired.
Both Holmes's writings and his lectures showed an open-minded understanding that his readers and listeners were educated people and should be spoken to as such.
In 1840 Holmes married Amelia Lee Jackson, daughter of the Massachusetts Supreme Court justice, and returned to general practice. They had three children: Oliver Wendell Holmes, Jr., a future justice of the United States Supreme Court; a daughter, Amelia (the future Mrs. Turner Sargent); and Edward Jackson Holmes, a future Boston lawyer. In 1847 Oliver was appointed Parkman professor of anatomy and physiology at Harvard Medical School, where he served as dean from 1847 to 1853. Holmes remained at Harvard until 1882.
Holmes's hobbies included interest in photography and the study of the microscope. He is credited with the invention of the stereoscope (an instrument with two eyeglasses for helping the observer combine the images of two pictures to get the effect of depth). His writing showed just as much variety as his training and his hobbies. He even wrote several well-remembered hymns. He died at his house in Boston on October 7, 1894, just two months after his eighty-fifth birthday.
Even though he was rebellious against some of his childhood religious training, he maintained a healthy relationship with his God. He once wrote in a letter to a friend, "There is a little plant called Reverence in the corner of my soul's garden." As a scientist, teacher, lecturer, author, and poet, Holmes left his mark on his time period, and many honors came to him both at home and abroad.
For More Information
Hoyt, Edwin Palmer. The Improper Bostonian: Dr. Oliver Wendell Holmes. New York : Morrow, 1979.
Tilton, Eleanor M. Amiable Autocrat: A Biography of Dr. Oliver Wendell Holmes. New York: Henry Schuman, 1947. Reprint, New York: Octagon Books, 1978.
Holmes, Oliver Wendell, Jr.
HOLMES, OLIVER WENDELL, JR.
Oliver Wendell Holmes, Jr. (March 8, 1841–March 6, 1935) was born in Boston, Massachusetts. His father was a physician and literary figure; his mother, Amelia Lee Jackson, a prominent society leader active in charitable causes. Holmes's mother, to whom the future Supreme Court justice bore a close physical resemblance, was the daughter of a prominent Boston lawyer and judge. Holmes attended private schools and Harvard but he benefited especially from the strong intellectual influence of his parents, whose visitors regularly included major writers and thinkers of the day.
A student at Harvard when the nation erupted in civil war, Holmes promptly enlisted in the infantry, graduated from college, and was given a commission as a second lieutenant. As a member of the Army of the Potomac, he developed an impressive record and was injured in combat on three occasions. When his injuries forced his resignation from the service in 1864, he held the rank of captain.
On returning to Boston, Holmes attended Harvard Law School, then toured Great Britain and the continent of Europe to complete his education. A clerkship in Boston and admission to the bar in 1867 followed. In 1872, Holmes married his childhood friend Fanny Dixwell and joined a Boston firm specializing in commercial and admiralty law. But he also had an enduring interest in legal scholarship, and in 1881, a few days before his fortieth birthday, his Lowell Lectures in Boston were published as a book. The Common Law would become one of the most influential studies of its kind, exerting a major impact on the development of the sociological and legal realist schools of jurisprudence.
Following publication of The Common Law, Holmes taught a semester at Harvard University, then accepted an appointment as a justice of the Massachusetts Supreme Judicial Court, on which he served twenty years, becoming its chief justice in 1899.
In 1902, President Theodore Roosevelt appointed Holmes to a seat on the United States Supreme Court. In his scholarly writings, Holmes had stressed the degree to which judges' life experiences, rather than logic, guided their decisions. As a justice, however, he generally opposed judicial interference with legislative judgments, especially in regulatory cases. Dissenting in Lochner v. New York (1905) and related cases, striking down maximum hour (Lochner), minimum wage, and other state and federal regulations, he attacked the Court's use of substantive due process as a weapon against economic legislation. Personally, he was skeptical of government efforts to control the economy. But in his view such decisions rested with legislators and the electorate, not with the courts.
Holmes usually gave non-economic substantive guarantees a narrow reading as well, refusing to equate laws forbidding tenant farmers to break their labor contracts with involuntary servitude. But the version of the clear and present danger test he ultimately embraced in Abrams v. United States (1919) and other World War I dissents was clearly more protective of free speech than the majority interpretation of the First Amendment in that era. He also joined Justice Louis Brandeis's dissent in Olmstead v. United States (1928), declaring that wiretapping should be subjected to Fourth Amendment requirements.
When Chief Justice William Howard Taft resigned from the bench in 1930, Holmes thrived in his brief role as acting chief justice. He also continued to challenge the Court's growing body of rulings restricting federal and state regulatory authority. When a majority, in Farmers Loan and Trust Co. v. Minnesota (1930), overturned his opinion generously construing state tax power in Blackstone v. Miller (1903), the justice dissented, expressing his "anxiety" over the Court's further encroachment on "the Constitutional rights of the States."
After Holmes' beloved wife Fanny died in 1929, however, his own health had begun to decline, as had his ability to keep abreast of the Court's work. In 1932, Chief Justice Charles Evans Hughes visited his home, explaining that a majority of the Court had asked Hughes to suggest that Holmes resign. Without apparent opposition or resentment, Holmes complied, sending the president his retirement letter on January 12, 1932. In 1935, he died at his home in Washington. He had served thirty years on the bench, under four chief justices. He is remembered as one of the Court's most outstanding jurists.
Alschuler, Albert W. Law without Values: The Life, Work, and Legacy of Justice Holmes. 2000.
Baker, Liva. The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes. 1991.
Novick, Sheldon M. Honorable Justice: The Life of Oliver Wendell Holmes. 1989.
White, G. Edward. Justice Oliver Wendell Holmes: Law and the Inner Self. 1993.
Tinsley E. Yarbrough
Holmes, Oliver Wendell (1809-1894)
Oliver Wendell Holmes (1809-1894)
Popularity. According to one of his students, when Dr. Oliver Wendell Holmes entered his classroom at Harvard College to lecture on anatomy, he was greeted “by a mighty shout and stamp of applause. Then silence, and there begins a charming hour of description, analysis, simile, anecdote [and] harmless pun, which clothes the dry bones with poetic imagery…” Holmes’s fame, however, went far beyond his medical lectures, for he also gained renown as a poet, novelist, biographer, and essayist. Indeed for more than half a century Holmes was a dominating force in the intellectual life of New England. His novels were much admired for their wit and humor, shrewd observations, originality of prose, and inventiveness of created characters. Furthermore, his writings exhibited an independent intellectual attitude, aversion to any restraint on free thought, and a scientific habit of mind.
Doctor. Oliver Wendell Holmes was born on 29 August 1809 in Cambridge, Massachusetts. His father, the Rev. Abiel Holmes was a Congregationalist minister. The young Holmes received his initial education at Phillips Academy. Between 1833 and 1835 he studied medicine in Paris. When he returned to America, he quickly wrote an essay on heart inflammation in order to fulfill a requirement for the Harvard Medical School and received the M.D. degree in February 1836. Over the course of the next two years Holmes won three Boylston prizes—an unprecedented feat—for medical essays on various topics. This achievement undoubtedly helped Holmes earn a professorship at Dartmouth Medical College in 1839. On 15 June 1840 he married Amelia Jackson and then settled in Boston to practice medicine. Holmes gained further recognition by publishing a landmark study on puerperal, or childbirth, fever. In 1847 he joined the faculty of Harvard Medical School, where he served as professor of anatomy and physiology for the next thirty-five years. (He also served a brief stint as medical school dean between 1847 and 1853).
Literary Interests. The work of being a physician did not detract from Holmes’s interests in the literary arts. He was an intimate friend with some of the leading New England writers of his day—Ralph Waldo Emerson, Nathaniel Hawthorne, James Russell Lowell, and John Greenleaf Whittier. In this circle of writers Holmes quickly became recognized as a brilliant conversationalist and poet. When Lowell became the editor of a new literary magazine in Boston, it was inevitable that Holmes was asked to submit contributions. Holmes suggested the name for the publication, The Atlantic Monthly, and its first issue in November 1857 had the opening installment of Holmes’s “The Autocrat of the Breakfast-Table,” a series of essays detailing the daily conversations of residents at a Boston boardinghouse. (In 1858 the twelve essays would appear in book form.) The essays included some of Holmes’s best poems and reflected the author’s ideas on the limitations of the human will, art, youth and age, and love. Holmes capitalized on his success with the publication of The Professor at the Breakfast-Table (1860), a book that followed the same conversational pattern but which dealt with the conflict between religion and science. In 1861 Holmes wrote his first major novel, Elsie Venner: A Romance of Destiny, in which he treats the life of a young girl as an allegory of original sin and moral responsibility.
Later Years. In 1872 Holmes published The Poet at the Breakfast-Table, bringing to a close his trilogy. He retired from Harvard Medical School in 1882 in order to devote more time to his active literary career. Four years later he toured England and wrote a book recounting his travels. In 1891 the Boston publishing house Houghton, Mifflin produced a thirteenvolume edition of The Writings of Oliver Wendell Holmes, a tribute to more than sixty years of observations on life, science, art, and philosophy. Among his other writings were The Guardian Angel (1867), Pages from an Old Volume of Life (1883), Ralph Waldo Emerson (1885), and Over the Teacups (1891). Holmes died at his home in Boston on 10 October 1894. He was the father of the eminent U.S. Supreme Court justice Oliver Wendell Holmes Jr.
Miriam Rossiter Small, Oliver Wendell Holmes (New York: Twayne, 1962);
Eleanor M. Tilton, Amiable Autocrat: A Biography of Dr. Oliver Wendell Holmes (New York: Henry Schuman, 1947).
Holmes, Oliver Wendell
HOLMES, OLIVER WENDELL
Oliver Wendell Holmes was born in Cambridge, Massachusetts, in 1809 and died in Boston in 1894. Known primarily as a writer and poet, Holmes embarked on a medical career in 1830. Three years later, he traveled to Paris to obtain more advanced training. He remained in Paris for two years before returning to finish his degree at Harvard Medical School in 1836. Holmes worked as a professor of anatomy at Dartmouth Medical College and as a private practitioner before obtaining a position as a professor of anatomy at Harvard in 1847, a post he held until his retirement in 1882. During his time in Paris, Holmes's instructors had introduced him to the importance of the microscope for medical studies, and he regularly instructed his students in the use of the instrument in anatomical study.
Holmes made his most significant contribution to public health in the area of maternal health. Puerperal fever, a disease that surfaces following childbirth, claimed a significant number of women's lives, and physicians were unable to predict when it would strike or what caused it. Holmes became intrigued by several presentations on the topic at the Boston Society for Medical Improvement and initiated his own study on the subject that resulted in his seminal work, The Contagiousness of Puerperal Fever, which he read before the Society in 1843 and subsequently published. His investigation convinced him that physicians were themselves responsible for carrying the disease from one patient to another. Consequently, Holmes advocated the washing of hands, changing of clothes, and a twenty-four-hour period between handling corpses and treating patients.
Holmes's directions, however, were met with derision by some who would not believe that physicians could be the source of disease, and, even when followed, his suggestions did not always work. Yet, his protocols offered some response to a pressing public health concern and questioned the relationship between disease, patients, and physicians.
(see also: Antisepsis and Sterilization; Maternal and Child Health; Pregnancy; Semmelweiss, Ignaz )
Parsons, G. P. (1997). "Puerperal Fever, Anticontagionists, and Miasmatic Infection 1840–1860: Toward a New History of Puerperal Fever in Antebellum America." Journal of the History of Medicine and Allied Sciences 52:424–452.
Holmes, Oliver Wendell (American jurist)
Oliver Wendell Holmes, 1841–1935, American jurist, associate justice of the U.S. Supreme Court (1902–32), b. Boston; son of the writer Oliver Wendell Holmes. He served (1861–64) with distinction in the Civil War, took a law degree at Harvard (1866), and began practice in Boston in 1867. Holmes taught (1870–73) constitutional law and jurisprudence at Harvard while editing the American Law Review and the 12th edition (1873) of Kent's Commentaries. In 1880, Holmes delivered a series of lectures on common law at the Lowell Institute. In them he attacked prevailing views of jurisprudence and proposed new conceptions of the origin and nature of law. He maintained that the law could be understood only as a response to the needs of the society it regulated, and that it was useless to consider it merely a body of rules developed logically by legal theorists. With the publication of the Lowell lectures in 1881, Holmes achieved international recognition. He became (1882) professor of law at Harvard and several months later was appointed to the Massachusetts supreme judicial court. There he served for 20 years, becoming chief justice in 1899. He was appointed to the U.S. Supreme Court by President Theodore Roosevelt in 1902.
The canons of Holmes's judicial faith were strict and demanding. He preached "judicial restraint" and firmly believed that popular majorities through their elected representatives should not have their will thwarted capriciously; when his colleagues on the court nullified social legislation—e.g., minimum wage and hour laws—as unconstitutional, Holmes vigorously objected. From his eloquent opinions in these cases he came to be regarded as the Great Dissenter. In cases dealing with free speech, however, Holmes felt it necessary for the judge to loose the bonds of restraint and prevent legislatures from assuming censorious powers. In defense of the First Amendment, he developed the "clear and present danger" rule, which allows for restrictions only when the public interest is faced with immediate threat. Set forth in the Abrams and Gitlow cases in dissenting opinions, the rule was generally accepted by the Supreme Court. Holmes's published works include The Common Law (1881), Speeches (1891, 1913), and Collected Legal Papers (1920).
See biographies by M. D. Howe (2 vol., 1957–63) and S. Bent (1932, repr. 1969); S. J. Konefsky, The Legacy of Holmes and Brandeis (1956, repr. 1974); F. Frankfurter, Mr. Justice Holmes and the Supreme Court (2d ed. 1961); A. W. Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes (2000); T. Healy, The Great Dissent (2013).
Oliver Wendell Holmes
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.
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). □