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John McGinnis on Stephen Budiansky on Oliver Wendell Holmes
Michael Ramsey

At Law & Liberty, John McGinnis: Holmes: An Uncommon Common Lawyer, but No Constitutionalist (reviewing Stephen Budiansky, Oliver Wendell Holmes: A Life in War, Law and Ideas (W.W. Norton, 2019)).  From the introduction:

Oliver Wendell Holmes: A Life in War, Law and Ideas might well be one of the most stimulating judicial biographies ever written. Of course, the life and career of Holmes (1841-1935) offer Stephen Budiansky much richer material than those of a typical judge. No other Supreme Court justice was seriously wounded three times on the battlefield, twice almost mortally. No other justice grew up in such a distinctive intellectual milieu with a father of the same name who was nationally famous. No other justice had from the earliest age soon-to-be world famous friends, like “Bill” and “Harry” (William and Henry James to the rest of us).

But Budiansky makes the most of this material. His descriptions of the Civil War battles in which Holmes fought are as intensely gripping as any written by a veteran military historian. And he appears to have ferreted out new material in the well-plowed archives of our bloodiest war. For instance, he includes a map of the Battle of Ball’s Bluff (Loudoun County, Virginia, October 1861) sketched by one Holmes’s friends, to show exactly where the first lieutenant in the 20th Massachusetts Regiment was shot through the chest. And the biographer nicely relates Holmes’s battlefield experiences to the rest of his life and work. Holmes came away from the Civil War profoundly concerned about human beings’ capacity to believe conflicting ideas with complete certitude, and pessimistic about the capacity of intellectual argument to convince them of the truth.

And from later on:

The greatest weakness of the book is its treatment and evaluation of Holmes’s distinctively legal ideas. ...

The real problem with Holmes is that he was a common lawyer who did not take the time to understand the meaning of the written law. All of his academic work concerned the common law of judges, and he spent almost two decades on the Massachusetts Supreme Judicial Court, which had a heavy common law docket. He was elevated to the Supreme Court of the United States when he was 61—a relatively old age for appointment.

It is striking that his most famous dissent (Lochner) is a rhetorical tour de force, yet it offered no analysis of what the relevant portions of the 14th Amendment meant, other than to say for effect that they did not “incorporate Herbert Spencer’s Social Statics.” (No one, of course, was arguing that they did.) Even his test for judicial restraint was less textually based than that of his contemporary, Thayer. Thayer wanted the Court to defer to any reasonable interpretation of the text. Holmes wanted to defer so long as the law the legislature enacted did not make him “puke.” A real contradiction, therefore, is his very subjective test for unconstitutionality, as against his view that the common law had evolved to make decisions on the basis of objective tests. For instance, the common law treats the standard of negligence as related to the care a “reasonable man” would take, ignoring the limitations and peculiarities of the individuals involved in the case

In conclusion:

Budiansky misses this fundamental problem with Holmes, being content to praise him as a founder of living constitutionalism, whose practitioners indeed often do neglect the text. But like many other living constitutionalists, Holmes never offered a theory about why the original meaning should not be binding. While his ideas about the common law still command respect today, his constitutional law contributions are much shallower. Some of his constitutional results still guide the Court, but he has not left behind an enduring theory of constitutional jurisprudence.