Vol. 2 No. 8 (August, 1992) pp. 105-106
THE ESSENTIAL HOLMES: SELECTIONS FROM THE LETTERS, SPEECHES,
JUDICIAL OPINIONS, AND OTHER WRITINGS OF OLIVER WENDELL HOLMES,
JR. by Richard A. Posner (editor). Chicago and London: The
University of Chicago Press, 1992. xxxi, 342 pp. Cloth $24.95.
Reviewed by Albert W. Alschuler, the University of Chicago Law
School.
The first complete biography of Oliver Wendell Holmes, Jr.,
Sheldon Novick's HONORABLE JUSTICE, appeared in 1989, more than a
half century after Holmes' death. Novick's biography was followed
in 1991 by Liva Baker's THE JUSTICE FROM BEACON HILL. Now Richard
Posner has added to these significant works a collection of
Holmes' writings. Posner's compilation is unquestionably the one
volume of Holmes' works to read if you are reading only one. The
volume provides a clear sense of a brilliant, engaging,
controversial, and extraordinarily influential jurist and
scholar, O. W. Holmes. As a bonus, it gives you a brief glimpse
of another brilliant, engaging, controversial and extraordinarily
influential jurist and scholar, Richard Posner.
Sparked in part by the two recent biographies, Holmes scholarship
is in renaissance; and although many scholars seem to idolize
Holmes, a few dissent. In a tentative working manuscript, I argue
that Holmes should be viewed as the principal villain of
twentieth century American legal thought. The first sentence of
Posner's introduction, by contrast, proclaims Holmes "the
most illustrious figure in the history of American law [p.
ix]." Our perspectives are nearly at opposite ends of the
spectrum, yet I would not vary significantly Posner's selection
from Holmes' writings.
My only regret (a minor one) is Posner's failure to include any
of Holmes' letters to his family during his military service in
the Civil War. Prior to the war, Holmes (unlike his noted father,
the physician and essayist) had been an abolitionist. Years
later, however, Holmes was to mock the abolitionists along with
all other true believers. Holmes' letters reveal how brutalizing
the war experience had been. For example, he wrote home,
"[I]t's odd how indifferent one gets to the sight of death
-- perhaps, because one gets aristocratic and don't value much a
common life -- Then they are apt to be so dirty it seems natural
.... [Howe, p. 77]"
The earliest of the writings included in Posner's collection is
Holmes' paper on ''The Gas-Stokers' Strike'' published in 1873.
This work -- Holmes' first significant piece of legal scholarship
-- reveals almost all that there would ever be to him, at least
until Brandeis and a few others came along relatively late in
Holmes' life and exerted a minor mellowing influence. In
"The Gas Stokers' Strike" one sees Holmes' brutality,
his social Darwinism, his ethical view that "in the last
resort a man rightly prefers his own interest to that of his
neighbors, [p. 127]" and the concept of judicial restraint
that, years later, produced his LOCHNER dissent and made him a
liberal hero. During the Civil War years, Holmes had written
home, "I loathe the thick-fingered clowns we call the people
... -- vulgar, selfish, and base, [Howe, 71]" yet this early
article set forth what would become the most distinctive feature
of Holmes' judicial career -- his unwillingness to deprive the
people of their spoils, an unwillingness that passed as
championship of democracy:
The more powerful interests must be more or less reflected in
legislation, which, like every other device of man or beast, must
tend in the long run to aid the survival of the fittest.... [I]t
is no sufficient condemnation of legislation that it favors one
class at the expense of another; for much or all legislation does
that.... [Legislation] is necessarily made a means by which a
body, having the power, put burdens which are disagreeable to
them on the shoulders of somebody else [p. 122].
Posner's introduction strives for moderation but does not conceal
Posner's great admiration for Holmes. Posner writes, for example,
that Holmes' "The Path of the Law" may
Page 106 follows:
be "the best article-length work on law ever written, [p.
x]" and he bristles at Sheldon Novick's statement that
Holmes "in personal letters seemed to espouse a kind of
fascist ideology [p. xxviii, n. 31; see Novick, xvii]."
That Holmes favored eugenics, glorified war, and believed that
might made right may not be sufficient reason for calling him a
fascist. As Posner observes, Holmes was not anti-Semitic, and he
said inspiring things about free speech. (A line from the movie,
"The Big Bus," noted how much people exaggerate:
"These days you eat one foot and they call you a
cannibal.") Posner writes, "Define 'fascist' broadly
enough, and we are all fascists [p. xxix]."
Virtually the only reform movement that Holmes' favored was
eugenics; and unlike other eugenicists of the time, Holmes
carried his fantasies to the point of favoring the execution of
unfit children. He wrote, "I can understand saying, whatever
the cost, so far as may be, we will keep certain strains out of
our blood [Lerner, p. 401]" -- and "I shall think
socialism begins to be entitled to serious treatment when and not
before it takes life in hand and prevents continuance of the
unfit [Shriver, p. 181]." (Father Francis E. Lucey noted
this second statement as early as 1941 and remarked that "if
recent reports are true" the socialist state in Germany
appeared to satisfy Holmes' standard for serious treatment
[Lucey, pp. 214-15].) Posner's comment is: "We may find
Holmes's eugenic enthusiasms shocking, although with the renewed
interest . . . in euthanasia, we may yet find those enthusiasms
prescient rather than depraved [p. xxix]."
You should take Posner's introduction with a grain of salt, take
my review with a grain of salt, and read the materials that
Posner has assembled. Posner has drawn these materials from
previously published (though often not readily available)
collections of letters, speeches, scholarly writings, and
judicial opinions. Because of what Posner calls "the
kaleidoscopic variety and succession of subjects in a single
[Holmes] document [p. xxiv]," the materials defy
organization. Yet Posner has managed to organize them, grouping
them under such creative headings as "Aging and Death,"
"Joie de Vivre," ''Culture and Personalities,"
"The Life Struggle," "The Activity of Law,"
"The Common Law," "Interpretation," and
"Liberty."
Posner's judgment that Holmes "was a great literary artist
[p. xvii]" seems unassailable. As a writer, Holmes was
unexcelled in the history of the Supreme Court. Holmes' engaging
turns of phrase, spare and forceful exposition, precise yet
arresting word selection, and imaginative aphorisms are
captivating. Take the appearance of this carefully crafted volume
as an occasion to read (or reread) and enjoy them. I hope that,
unlike Richard Posner, you won't be captured by them.
References
Baker, Liva. 1991. THE JUSTICE FROM BEACON HILL: THE LIFE AND
TIMES OF OLIVER WENDELL HOLMES. New York: Harper Collins.
Howe, Mark De Wolfe (ed.). 1946. TOUCHED WITH FIRE: CIVIL WAR
LETTERS AND DIARY OF OLIVEB ª 9 11BõªªÔ*KJR., 1861-1864.
Cambridge: Harvard University Press.
Lerner, Max (ed.). 1945. THE MIND AND FAITH OF JUSTICE HOLMES:
HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS. Boston:
Little, Brown & Co.
LOCHNER V. NEW YORK 198 US 45 (1905).
Lucey, Frances E. 1941. "Jurisprudence and the Future Social
Order." SOCIAL SCIENCE 16:211.
Novick, Sheldon M. 1989. HONORABLE JUSTICE: THE LIFE OF OLIVER
WENDELL HOLMES. Boston: Little, Brown & Co.
Shriver, Harry C. (ed.). 1936. JUSTICE OLIVER WENDELL HOLMES: HIS
BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS. New York:
Central Book Co.
Copyright 1992