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.
Further Reading on Oliver Wendell Holmes Jr
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).