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Oliver Wendell Holmes Jr.

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Oliver Wendell Holmes Jr. was a justice of the U.S. Supreme Court and legal philosopher who has become a celebrated legal figure. His writings on JURISPRUDENCE have shaped discussions on the nature of law, and his court opinions have been studied as much for their style as for their intellectual content. Though Holmes has been widely praised, he does have critics who contend that he paid too much deference to the power of the state to control individual freedom.

Holmes was born March 8, 1841, in Boston. His father, Oliver Wendell Holmes Sr., was a well-known physician, a lecturer at Harvard Medical School, an author who was widely read in England and the United States, and a founder of the Atlantic Monthly. Holmes attended private school and then Harvard College, graduating in 1861. With the outbreak of the Civil War in 1861, Holmes enlisted as an officer in the Twentieth Massachusetts Volunteer Infantry.

His military service was difficult. Holmes was wounded three times, twice almost fatally, and suffered from dysentery. In 1863 he accepted a position as an aide to a Union general, and he served in that capacity until 1864. He resigned his commission before the end of the war and returned, exhausted, to Boston, where he began preparations for a legal career.

He attended Harvard Law School and graduated in 1866. He was admitted to the Massachusetts bar in 1867. Because of inherited wealth Holmes had the financial luxury of pursuing his intellectual interests. He edited the twelfth edition of jurist James Kent's Commentaries on American Law (1873) and wrote many articles for the American Law Review. Following his marriage to Fanny Dixwell in 1873, Holmes joined a prominent Boston law firm, where he practiced COMMERCIAL LAW.

Holmes did not abandon his inquiries into the nature of law. He was invited to Boston to present a series of lectures on the law, which were published in 1881 as The Common Law. This volume is the most renowned work of legal philosophy in U.S. history. It allowed Holmes systematically to analyze, classify, and explain various aspects of U.S. COMMON LAW, ranging from TORTS to contracts to crime and punishment.

In The Common Law, Holmes traced the origins of the common law to ancient societies where liability was based on feelings of revenge and the subjective intentions of a morally blameworthy wrongdoer. For example, Holmes observed that in such societies creditors were permitted to cut up and divide the body of a debtor who had breached the terms of a contract. Advanced societies, Holmes noticed, no longer settle contractual disputes in such a barbaric fashion. These societies have evolved to the point where liability is now premised on objective and external standards that separate moral responsibility from legal obligation, and wholly eliminate concerns regarding the actual guilt of the wrongdoer. Holmes noted that common-law principles require judges and juries to interpret contractual relations from the perspective of an average person with ordinary intelligence, regardless of how a particular agreement may have actually been understood or performed by the parties themselves.

The importance of The Common Law rests in its rejection of the idea that law is a logical system and that legal systems obey the rules of logic. In his most famous quotation, Holmes concluded,

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Holmes's jurisprudence led to the conclusion that judges first make decisions and then come up with reasons to explain them. His approach, which has been characterized as cynical, touched a nerve with succeeding generations of legal scholars. He had a profound effect on the development of sociological jurisprudence and LEGAL REALISM. Sociological jurisprudence and legal realism were twentieth-century schools of thought that emphasized the need to examine social, economic, and political forces rather than confine the study of law to logic and abstract thought.

Holmes joined the faculty of the Harvard Law School in 1882, then left after one semester to accept an appointment as justice on the Supreme Judicial Court of Massachusetts, the highest tribunal in the state. In 1899 he was appointed chief justice of that court, and he served in that position until 1902, when President THEODORE ROOSEVELT named him to the U.S. Supreme Court.

His service on the Supreme Court gave Holmes the opportunity to apply his philosophy.

He believed that judges should not impose their private beliefs on law, especially law created by a legislature. When reviewing the constitutionality of legislation, Holmes said a legislature can do whatever it sees fit unless a law it enacts is not justified by any rational interpretation of, or violates an express prohibition of, the Constitution (Tyson & Brothers United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S. Ct. 426, 71 L. Ed. 718 [1927]). Holmes was skeptical about his ability to determine the "goodness or badness of laws" passed by the legislature, and felt that in most situations he had no choice but to practice judicial restraint and defer to the desires of the popular will.

Holmes's dissenting opinion in LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), is recognized as his most famous opinion. It is based on the idea of judicial restraint. In Lochner Holmes disagreed with the majority, which struck down a New York law that limited the number of hours a baker could work during a week. The majority held that the law violated the "liberty of contract" guaranteed by the FOURTEENTH AMENDMENT, which provides that no state is to "deprive any person of life, liberty, or property, without DUE PROCESS of law" (§ 1). In his dissent Holmes suggested that the majority had based its decision on its members' personal ideological preference for freedom of contract, and not on the Constitution. He said it was improper to overturn a legislative act simply because the Court embraced an economic theory antagonistic to government work regulations.

But Holmes rarely deferred to the popular will in cases raising free speech questions under the FIRST AMENDMENT. If the law must correspond to powerful interests in society, Holmes reasoned, then all facets of society must be given a fair opportunity to compete for influence through the medium of public speech. In GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), Holmes dissented from a decision upholding the conviction of a man who had been arrested for violating the New York Criminal Anarchy Law (N.Y. Penal Law §§ 160, 161 [ch. 88, McKinney 1909; ch. 40, Consol. 1909]) by advocating the establishment of a socialist government. In his dissent he argued for "the free trade in ideas" as the best way of testing the truth of particular beliefs. He stated that FREEDOM OF SPEECH must be permitted unless it is intended "to produce a clear and

Oliver Wendell Holmes.

imminent danger." This "clear-and-imminent-danger" test for subversive advocacy was first labeled by Holmes as the "clear-and-present-danger" test in SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919). It remains influential as a way of protecting what Holmes termed the marketplace of ideas.

Holmes also contributed to modern FOURTH AMENDMENT jurisprudence. In OLMSTEAD V. UNITED STATES, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), the Supreme Court ruled that incriminating evidence illegally obtained by the police was admissible against a defendant during prosecution. Foreshadowing the Court's later recognition of an EXCLUSIONARY RULE that prohibits prosecutors from using illegally obtained evidence during trial, Holmes wrote that the "government ought not to use evidence" that is "only obtainable by a criminal act" of the police. While acknowledging the legitimate objectives of law enforcement, Holmes concluded that it was "a less[er] evil that some criminals should escape than that the government should play an ignoble part."


Despite Holmes's substantial reputation, he is not without critics. BUCK V. BELL, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927), is the case most frequently cited to point out faults in his jurisprudence. In his majority opinion in Buck, Holmes upheld the constitutionality of a state statute (Va. Law of March 20, 1924, ch. 394) authorizing the sterilization of "feeble-minded" (mentally retarded) persons. Reviewing the family history of Carrie Buck, her mother, and her daughter, Holmes stated, "Three generations of imbeciles are enough." He believed that sterilization was the best way to end the procreation of mentally retarded persons, and in looking at these three generations of women he believed they were all mentally retarded. Later evidence suggested that none of the three were in fact mentally retarded. The case also suggested that deference to legislative acts, such as forced sterilization, was not an unfettered good and that questions of morality and justice have a place in the law, despite Holmes's protests to the contrary.

Holmes's jurisprudence also suggested that the law is what the government says it is. This approach, called LEGAL POSITIVISM, was called into question in the 1930s and 1940s with the rise of totalitarian regimes in Germany and Italy and the rule of Stalin in the Soviet Union. Many legal scholars criticized POSITIVISM as lacking a basis in morality and fundamental societal values.

Holmes retired from the Supreme Court in 1932. He died in Washington, D.C., on March 6, 1935, two days before his ninety-fourth birthday.

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