The View From 1776

Edward A. Kole emailed a request for the source of my characterization of the legal precepts of Justice Oliver Wendell Holmes, Jr. as “the law is no more than whatever a particular judge declares it to be in a specific case.”

There is no single statement to that effect by Justice Holmes of which I am aware.  That is my summation of his views.

I should add that this summation also accounts for my assessment that Holmes was our first socialist Supreme Court Justice.

Holmes, of course, is hailed as the progenitor of the loose collection of views called legal realism.  Other advocates of legal realism forthrightly declared that the law is whatever a judge rules.

My characterization of Justice Holmes’s views is based on the following:

1.  The common law, as Mr. Kole has noted in prior postings on this website, is judge-made law, within the confines of legal precedent and long established custom.  Holmes in his 1881 “The Common Law” espoused the view that judges should abandon precedent and tradition wherever they conflicted with current social-science ideas of public benefit.

2.  Holmes flatly rejected the concept of natural law or of any sort of higher law as a basis for judges’ decisions (see his 1918 essay, “Natural Law.") He also wrote that the concept of morality should be banished from the law.  Law was to be simply a method for imposing penalties upon people who acted in prohibited ways. 

Natural law, before the French Revolution, was an important basis of European jurisprudence, including Hugo Grotius’s seminal work on international law, a current-day liberal shibboleth.  It was also a foundation block of Christian theology after Thomas Aquinas’s 13th century “Summa Theologica.”

Most importantly for us, natural law was the ruling paradigm for the people who settled the British North American colonies in the 17th century.

The Declaration of Independence clearly being based upon John Locke’s conception of natural law as embodying inalienable rights to life, liberty, and property, and the Constitution being built upon the same foundational ethos, Holmes is simply declaring, if nothing else, that the clear understandings of those who wrote those two documents is not binding upon a judge, who is free to make up the law to suit his own sociological views. 

For Holmes, truth was no more than the currently dominant public opinion (see point 6 below).

3.  In place of natural law, he said that the law should be scientific, that is, based upon the so-called social sciences, particularly economics.  See, among other sources, “Law in Science and Science in Law,” his 1889 address to the New York State Bar Association:

“I have in mind an ultimate dependence [of law] upon science because it is finally for science to determine, so far as it can, the relative worth of our different social ends.”

That viewpoint became the dominant one among the liberal establishment when Harvard and other universities swung toward the atheistic materialism of French, German, and English socialism of the late 19th century.  Holmes’s emphasis on economics made him sympathetic to the Marxist labor theory of value.  Though he never cited that hypothesis specifically, he aligned himself with Justice Brandeis’s view of social justice, albeit perhaps not to the extreme of Brandeis’s opinion that socialized business is more efficiently run and more beneficial to the public than privately-owned business.

It is not coincidence that the published volume of Holmes’s legal essays was edited by his Cambridge friend and Harvard professor Harold Laski, an ardent champion of socialism.

4.  One effect of legal realism was to introduce socialism and Auguste Comte’s sociology as an acceptable basis for judicial opinion.  An example is Holmes’s statement in his dissent to Lochner v. New York, 198 U.S. 45 (1905):

“General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law.”

Translation with respect to Lochner: private property rights, the impetus for our War of Independence, are henceforth less important than the French Revolution’s doctrines of social justice.

5.  Holmes’s paradigm of society and law in society led him to oppose judicial nullification of state legislation that established elements of the welfare state.  That position is congruent with the present-day idea of judicial restraint and would prevent Federal courts from overruling state laws against same-sex marriage, for example.

But, apart from his 1919 opinion for the Court in Schenk v. United States, Holmes abandons such restraint whenever states or the Federal government attempt to prevent public mayhem arising from irresponsible, inflammatory public speech or revolutionary action.

We have the spectacle of his 1925 dissent in Gitlow v. New York, in which he saw “no present danger to overthrow the government by force” resulting from socialist propaganda that included statements such as “Humanity can be saved.....only by the Communist Revolution....Revolutionary Socialism alone is capable of mobilizing the proletariat for Socialism, for the conquest of the power of the state, by means of revolutionary mass action and proletarian dictatorship....”

Holmes’s indifference to danger in socialist activity to promote lethal violence closely tracks then just-developing ACLU interpretation of First Amendment free speech as the absence of any limitations upon actions as well as words of socialists and anarchists.

But this interpretation of the First Amendment was more than an abstract, theoretical exercise.  There were real, life-and-death consequences for the average citizen.

Terrorist actions still fresh in memory at the time of Holmes’s Gitlow
dissent included the 1920 Wall Street bombing by socialist activists that killed 38 people and wounded more than 300, as well as numerous earlier murders and bombings by socialists and anarchists, including the assassination of President William McKinley in 1901.  McKinley’s assassin said that he was motivated by anarchist propaganda calling for revolutionary action.

6.  Another implication of legal realism was Holmes’s acceptance of raw political power as the source of the law.  Ironically Holmes is depicted as a champion of the Bill of Rights.  In fact, his position was the antithesis of the intent of the Bill of Rights to protect individuals’ inalienable natural-law rights from arbitrary government action, including Supreme Court decisions.  His then-novel interpretation of the First Amendment made him a supporter of what Tocqueville called the tyranny of the masses.

“If in the long run the beliefs expressed in proletarian dictatorships are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Gitlow v. New York (1925).

As we have seen, imposition of proletarian dictatorship would mean abolition of the Bill of Rights entirely.

7.  In Holmes’s paradigm, there being no truth or morality beyond easily manipulated public opinion, there was nothing to stand against the the atheistic materialism of American liberalism, in his day called Progressivism.

“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...” Abrams v. United States (1919).

If truth is whatever wins out in the market place, then Hitler’s National Socialist propaganda minister Joseph Goebbels was the voice of truth to which Justice Holmes would have been obliged to adhere. 

At the least, Holmes’s embrace of moral relativism provided cover for a judge to view the law as whatever he believed it ought to be.

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