The View From 1776

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Recently my earlier article, “Socialism: Our Unconstitutionally Established National Religion,” was published on the AmericanDaily website.

A reader wrote:
“I have no issues with your letter over all, but I think it requsite that I point out that Mr. Justice Holmes was not a socialist. Indeed, in his private letters he found that socialism made him “want to barf” ("The Essential Holmes”, edited by Richard Posner). In fact, he personally admired many of the great captains of industry of his day, including Rockefeller, Carnegie and Ford. Whatever your persuasion, any honest investigation would clearly prove that Holmes was anything but a socialist.”

My reply:

Possibly the grounds for the reader’s disagreement with my characterization is that we have different definitions of socialism.  I, of course, do not know the reader’s definition, but many people mistakenly believe that socialism is simply, and exclusively, government ownership of the means of production and distribution. 

The definition of socialism is, in fact, far broader than that, as I noted in the referenced article.  The late Bertrand Russell, one of the world’s most prominent spokesmen for socialism, said of the World War I German socialist party,

“For Social Democracy is not a mere political party, nor even a mere economic theory; it is a complete self-contained philosophy of the world and of human development; it is, in a word, a religion and an ethic.  To judge the work of Marx, or the aims and beliefs of his followers, from a narrow economic standpoint, is to overlook the whole body and spirit of their greatness.” (from “Lecture One, German Social Democracy").

Irving Howe was a leading New York socialist intellectual after World War II, as well as the founding editor of Dissent magazine.  In “A Margin of Hope: An Intellectual Autobiography,” he wrote,

“Call it liberal, call it social democratic, a politics devoted to incremental reform even while still claiming a utopian vision — how can such a politics satisfy that part of our imagination still hungering for religious exaltation, still drawn to gestures of heroic violence, still open to the temptations of the apocalypse? …Perhaps it was recognition of this fact that led the leadership of the European social democracy in the years just before the First World War to maintain some of the “revolutionary” symbols and language of early Marxism, though their parties had ceased to be revolutionary in any serious respect.  Intuitively they grasped that the parties they led were not just political movements but, in some sense, branches of a “church” …”

Justice Oliver Wendell Holmes, an agnostic, clearly subscribed to those philosophical tenets, even though he never advocated public ownership of the means of production or distribution. 

It is true that he wrote in various venues that he saw no problem with business leaders like Rockefeller in principle, viewing them only as the leadership element in the production process and entitled to compensation according to worth.  In the same breath, however, he spoke of them as being part of the process for providing social needs.

In a letter to a magazine, published in “Collected Legal Papers: Oliver Wendell Holmes,” (1920, compiled by Holmes’s friend Harold Laski, an eminent socialist and at the time a Harvard professor, later head of the London School of Economics, a world center of socialistic economic doctrine), Holmes wrote:

“The real problem is not who owns, but who consumes the annual product… I conceive that economically it does not matter whether you call Rockefeller or the United States owner of all the wheat in the United States, if that wheat is annually consumed by the people...”

In that same collection of papers, in an essay entitled “Holdsworth’s English Law,” Holmes wrote:

“And after all, those of us who believe with Mr. Lester Ward, the sociologist, in the superiority of the artificial to the natural, may see in what has been done some ground for believing that mankind may yet take its own destiny consciously and intelligently in hand.”

Those words might have been lifted directly out of Auguste Comte’s “A General View of Positivism,” one of the volumes in which Comte sets forth his Religion of Humanity that formed the basis of John Stuart Mill’s advocacy of socialism in England.

The “natural” which Holmes rejects in favor of the artificial is natural law, the doctrine underlying Jefferson’s assertion in the Declaration of Independence that all men are created equal and endowed with certain unalienable rights. 

In his essay titled “Natural Law,” Holmes describes himself as a skeptic, in the sense of agnostic.  He wrote:

“The jurists who believe in natural law seem to me to be in a naive state of mind that accepts what has been familiar [the Declaration and the Constitution, for example?] and accepted by them and their neighbors as something that must be accepted by all men everywhere.”

Then, establishing the basis for later judicial activism, he continues, “...the question remains as to the Ought of natural law [not what is established natural law, reaching back into classical Greek and Roman jurisprudence].”

Regarding Lester Frank Ward, to whom Holmes refers approvingly, the Wikipedia says:

“He worked as a government geologist and paleontologist from 1881 to 1906, when he became professor of sociology at Brown. One of the first and most important of American sociologists, Ward developed a theory of planned progress called telesis, whereby man, through education and development of intellect, could direct social evolution....On the basis of his idea of humanizing society he assumed that poverty could be minimized by systematic state interventions, here in the understanding of meliorism as a science of the improvement in the society.  A sociology interfering in the social and economic life of the American society should regulate the competition, connect the people together on the basis of equal opportunities and cooperation, and promote the happiness and the freedom of everyone.”

Holmes’s parallel theory of jurisprudence asserts that the law is no more than what a particular judge, at a particular time, declares it to be.  Legal precedent, natural-law rights of individuals, or centuries-old custom are relevant only to the extent that a judge chooses to employ them as justifications for legal decisions based on his ideas about social justice.

In “Rendezvous With Destiny: A History of Modern American Reform,” Eric F. Goldman wrote:

“The process of removing the legal link in the conservative chain of ideas went ahead on two levels, but along essentially the same line of Reform Darwinism… Law was and should be a constantly evolving set of ideas, the dissident legalists argued.....The first steps toward legal Reform Darwinism were taken by the redoutable Oliver Wendell Holmes, Jr.....In 1881 Holmes’s book “The Common Law” presented the first distinguished statement of a sweeping Darwinism in the law.  ‘The life of the law has not been logic; it has been experience,’ he declared… In 1897, in his famous address entitled “The Path of the Law,” Holmes bluntly denied the possibility of avoiding judge-made law:  “....behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds.”

This was a firm declaration in favor of the moral relativism championed by John Dewey, the leading American exponent of Darwinism in morals and education, of which Thomas Huxley had said that there is no sin, no right or wrong, merely the struggle for survival.

This legal theory, first espoused by Justice Holmes, came to be known as “legal realism” and has been taught for many years in elite Ivy League law schools, which have produced a stream of socialistic, activist judges.

Employing the Dewey and Holmes principle, under the liberal welfare state that has come into being since 1933, there can be no inherent limit on collectivized government power, because liberal ideology places its faith entirely in materialistic and secular, so-called scientific, sociology that expressly denies the concept of natural law and its corollary of a spiritual human nature amenable to eternal moral truths. 

When judges start, as did Holmes, from the presumption that society is evolving in accordance with some vast, inherent, and inevitable process, immanent within abstract “history,” (i.e., Hegel’s spirit of Liberty or Marx’s materialist socialism), it is not really possible to balance competing desires.  Such legal theory merely justifies the judge’s prejudices about what he considers fair and rationalizes overturning existing law in order to implement the evolving liberal concepts of social justice.

Rejecting the concept that law is the product of human reason, and preferring to view it as a matter of social evolution, Holmes opined that there is no independent truth, that “truth” is no more than whatever wins out in the market place.  That definition, of course, would have made slavery a “truth,” if the South had won the war.  It was also a definition with which Joseph Goebbels, Hitler’s propaganda minister, would have been perfectly comfortable.

Indeed, Holmes wrote that, if public opinion should swing toward instituting Soviet Bolshevism, then neither the Constitution nor the Supreme Court should stand in the way.

Finally, it must be noted that one of the most profound innovations of the French Revolution and its subsequent imposition of socialism in France was the reliance on volatile public opinion alone as the source of legitimacy for government action.  Condorcet noted that public opinion, manipulated by government controlled newspapers and pamphlets, was to be the intellectuals’ instrument of governance. 

Holmes falls right into line, flatly rejecting the idea that there is such a thing as established law that people can know and follow beforehand.  The law must forever be a gamble in which the outcome depends upon which judge is rolling the dice and what he believes to be the then-current fashion in liberal social-justice ideas.

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