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This is a thread about Oliver Wendell Holmes. Everyone knows Oliver Wendell Holmes as the Supreme Court Justice; but many do not know of Oliver Wendell Holmes - the legal pragmatist and member of the Metaphysical Club.

This thread will focus on the philosophical Holmes and is a "spoiler thread".

This is where "expansive discussions" concerning Holmes can take place beyond the scope of the book discussion of The Metaphysical Club.

Here is a brief write-up from the write-up on the Pragmatism Cybrary by John Shook.

"The Metaphysical Club was an informal discussion group of scholarly friends, close from their associations with Harvard University, that started in 1871 and continued until spring 1879. This Club had two primary phases, distinguished from each other by the most active participants and the topics pursued. The first phase of the Metaphysical Club lasted from 1871 until mid-1875, while the second phase existed from early 1876 until spring 1879. The dominant theme of first phase was pragmatism, while idealism dominated the second phase. The "pragmatist" first phase of the Metaphysical Club was organized by Charles Peirce (Harvard graduate and occasional lecturer), Chauncey Wright (Harvard graduate and occasional lecturer), and William James (Harvard graduate and instructor of physiology and psychology). These three philosophers were then formulating recognizably pragmatist views. Other active members of the "Pragmatist" Metaphysical Club were two more Harvard graduates and local lawyers, Nicholas St. John Green and Oliver Wendell Holmes, Jr., who were also advocating pragmatic views of human conduct and law. The "idealist" second phase of the Metaphysical Club was organized and led by idealists who showed no interest in pragmatism: Thomas Davidson (independent scholar), George Holmes Howison (professor of philosophy at nearby Massachusetts Institute of Technology), and James Elliot Cabot (Harvard graduate and Emerson scholar). There was some continuity between the two phases. Although Peirce had departed in April 1875 for a year in Europe, and Wright died in September 1875, most of the original members from the first phase were available for a renewed second phase. By January 1876 the "Idealist" Metaphysical Club (for James still was referring to a metaphysical club in a letter of 10 February 1876) was meeting regularly for discussions first on Hume, then proceeding through Kant and Hegel in succeeding years. Besides Davidson, Howison, and Cabot, the most active members appear to be William James, Charles Carroll Everett (Harvard graduate and Dean of its Divinity School), George Herbert Palmer (Harvard graduate and professor of philosophy), and Francis Ellingwood Abbott (Harvard graduate and independent scholar). Other occasional participants include Francis Bowen (Harvard graduate and professor of philosophy), Nicholas St. John Green, Oliver Wendell Holmes, Jr., and G. Stanley Hall (Harvard graduate and psychologist).

The Metaphysical Club was a nine-year episode within a much broader pattern of informal philosophical discussion that occurred in the Boston area from the 1850s to the 1880s. Chauncey Wright, renowned in town for his social demeanor and remarkable intelligence, had been a central participant in various philosophy clubs and study groups dating as early as his own college years at Harvard in the early 1850s. Wright, Peirce, James, and Green were the most active members of the Metaphysical Club from its inception in 1871. By mid-1875 the original Metaphysical Club was no longer functioning; James was the strongest connection between the first and second phases, helping Thomas Davidson to collect the members of the "Idealist" Metaphysical Club. James also was a link to the next philosophical club, the "Hegel Club", which began in fall 1880 in connection with George Herbert Palmer's seminar on Hegel. By winter 1881 the Hegel Club had expanded to include several from the Metaphysical Club, including James, Cabot, Everett, Howison, Palmer, Abbott, Hall, and the newcomer William Torrey Harris who had taken up residence in Concord. This Hegel Club was in many ways a continuation of the St. Louis Hegelian Society from the late 1850s and 1860s, as Harris, Howison, Davidson, and their Hegelian students had moved east. The Concord Summer School of Philosophy (1879-1888), under the leadership of Amos Bronson Alcott and energized by the Hegelians, soon brought other young American scholars into the orbit of the Cambridge clubs, such as John Dewey.

The "Pragmatist" Metaphysical Club met on irregular occasions, probably fortnightly during the Club's most active period of fall 1871 to winter 1872, and they usually met in the home of Charles Peirce or William James in Cambridge. This Club met for four years until mid-1875, when their diverse career demands, extended travels to Europe, and early deaths began to disperse them. The heart of the club was the close bonds between five very unusual thinkers on the American intellectual scene. Chauncey Wright and Charles Sanders Peirce shared the same scientific interests and outlook, having adopted a positivistic and evolutionary stance, and their common love for philosophical discussion sparked the club's beginnings. Wright's old friend and lawyer Nicholas St. John Green was glad to be included, as was Peirce's good friend William James who had also gone down the road towards empiricism and evolutionism. William James brought along his best friend, the lawyer Oliver Wendell Holmes, Jr., who like Green was mounting a resistance to the legal formalism dominating that era. Green brought fellow lawyer Joseph Bangs Warner, and the group also invited two philosophers who had graduated with them from Harvard, Francis Ellingwood Abbott and John Fiske, who were both interested in evolution and metaphysics. Other occasional members were Henry Ware Putnam, Francis Greenwood Peabody, and William Pepperell Montague.

Activities of the "Pragmatist" Metaphysical Club were recorded only by Peirce, William James, and William's brother Henry James, who all describe intense and productive debates on many philosophical problems. Both Peirce and James recalled that the name of the club was the "Metaphysical" Club. Peirce suggests that the name indicated their determination to discuss deep scientific and metaphysical issues despite that era's prevailing positivism and agnosticism. A successful "Metaphysical Club" in London was also not unknown to them. Peirce later stated that the club witnessed the birth of the philosophy of pragmatism in 1871, which he elaborated (without using the term 'pragmatism' itself) in published articles in the late 1870s. His own role as the "father of pragmatism" should not obscure, in Peirce's view, the importance of Nicholas Green. Green should be recognized as pragmatism's "grandfather" because, in Peirce's words, Green had "often urged the importance of applying Alexander Bain's definition of belief as 'that upon which a man is prepared to act,' from which 'pragmatism is scarce more than a corollary'." Chauncey Wright also deserves considerable credit, for as both Peirce and James recall, it was Wright who demanded a phenomenalist and fallibilist empiricism as a vital alternative to rationalistic speculation.

The several lawyers in this club took great interest in evolution, empiricism, and Bain's pragmatic definition of belief. They were also acquainted with James Stephen's A General View of the Criminal Law in England, which also pragmatically declared that people believe because they must act. At the time of the Metaphysical Club, Green and Holmes were primarily concerned with special problems in determining criminal states of mind and general problems of defining the nature of law in a culturally evolutionary way. Both Green and Holmes made important advances in the theory of negligence which relied on a pragmatic approach to belief and established a "reasonable person" standard. Holmes went on to explore pragmatic definitions of law that look forward to future judicial consequences rather than to past legislative decisions.


The Metaphysical Club by Louis Menand by Louis Menand Louis Menand

Please feel free to discuss Oliver Wendell Holmes on this thread.

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Oliver Wendell Holmes, Jr. (1841-1935)

Holmes was born on 8 March 1841 in Boston, the son of Amelia Jackson and Oliver Wendell Holmes, Sr., the latter a professor of anatomy at the Harvard Medical School and a well-known poet and writer.

Holmes began his studies at Harvard College in 1857, graduated in 1861, and joined the Twentieth Massachusetts regiment. After a distinguished military record and serious wounds, he entered Harvard Law School in 1864 and graduated in 1866. He engaged in the private practice of law in Boston from 1867 until 1882, when he taught for a short time at Harvard Law School.

Holmes was appointed to the Massachusetts Supreme Judicial Court in 1882 and became Chief Justice in 1899. He was appointed by Theodore Roosevelt to the United States Supreme court in 1902. Holmes retired from the Supreme Court in 1932 and died on 6 March 1935 in Washington, D.C.

Holmes's most famous writings formulating his pragmatic theory of law are The Common Law (1881), especially pp. 1-4 and 34-38; and "The Path of the Law," Harvard Law Review 10 (1897): 457-478.

The Common Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.

The Path of the Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.

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Justice Oliver Wendell Holmes, Jr. (1841-1935)

Oliver Wendell Holmes, Jr. was born in Boston on March 8, 1841. He would live until two days short of his 94th birthday. His father, Oliver Wendell Holmes, Sr., was a physician, a professor of medicine at Harvard, and an author of novels, verse, and humorous essays. Thus, Holmes grew up in a literary, and prosperous, family.

Holmes attended private schools in Boston and then, like his father, Harvard. Young Holmes was not overly impressed with the Harvard of that time, finding the curriculum stultifying (Henry Adams later remarked that "Harvard taught little, and that little ill."). He exercised his literary talents as editor of the Harvard Magazine, and in numerous essays. His graduation was even in some doubt, as he had been publicly admonished by the faculty for "disrespect" towards a professor. Holmes evidently took this as an affront and left to train for the Civil War. His unit was not immediately sent to the front, and Holmes was persuaded to return and receive his degree.

After graduating from Harvard, Holmes began his Civil War service. He was wounded in battle three times and also suffered numerous illnesses. Though he was later to glorify wartime service, he declined to renew his term of service when it expired. Holmes apparently, and justifiably, felt that he had done more than his duty, and had survived one battle too many to continue tempting fate.

Holmes returned to Boston, decided to study law, and entered Harvard Law School in 1864. Though at first uncertain that law would be his profession, he soon became immersed in study and decided that the law would be his life's work. He committed himself to the law, but not necessarily to the private practice.

After passing the required oral examination, Holmes was admitted to the Massachusetts bar in 1867. For the next fourteen years he practiced law in Boston. But his love for legal scholarship, rather than the mundane daily practice, was evident during this period. He worked on a new edition of Kent's Commentaries, a mammoth endeavor that took some four years, and became the editor of the American law Review.

Holmes married Fanny Dixwell in 1872. They had known each other since Holmes was about ten years old, as she was the daughter of the proprietor of the private school he attended. Their marriage was to be childless, and endured until her death in 1929.

Holmes's most famous work, The Common Law, published in 1881 grew out of a series of twelve lectures he was invited to deliver, which required that he explain the fundamentals of American law. Holmes questioned the historical underpinnings of much of Anglo-American jurisprudence. The work contains Holmes's most famous quote, "The life of the law has not been logic; it has been experience." Holmes had come to believe that even outdated and seemingly illogical legal doctrines survived because they found new utility. Old legal forms were adapted to new societal conditions.

Shortly after publication of The Common Law, Holmes was offered a post teaching law at Harvard. After some intense negotiation, mainly centered on money, because Holmes was not wealthy and needed the income to live, he accepted the professorship. But after teaching only one semester, he resigned to accept an appointment to the Supreme Judicial Court of Massachusetts, the state's highest court. The opening had arisen at the end of the current Republican governor's term, and as he was to be succeeded by a Democrat, the appointment had to be accomplished with dispatch. Holmes's departure from Harvard caused some consternation, however, as he was one of only five full-time professors, and an endowment had been specially raised to fund his professorship.

Holmes served on the Supreme Judicial Court for twenty years, becoming chief justice. He loved the work-the legal research and the "writing up" of cases. Holmes found the work easy, at least for him. He could see immediately to the heart of an issue, and his intellectual powers were far superior to his colleagues. Holmes was never accused of modesty, especially concerning his superiority to his fellow judges. Though he was happy on the Supreme Judicial Court, he desired greater fame and challenge.

The opportunity for ultimate professional advancement came in 1902,when Holmes was appointed by President Theodore Roosevelt to the United States Supreme Court. His appointment might never have happened, except that the "New England seat" on the court became vacant during Roosevelt's term, and Roosevelt and Holmes were both friends with Massachusetts Senator, Henry Cabot Lodge. Lodge persuaded Roosevelt that Holmes was "safe," meaning favorable towards Roosevelt's progressive policies. Roosevelt would later regret the appointment, after Holmes participated in striking down some of Roosevelt's initiatives.

Oliver Wendell Holmes, Jr. would serve on the Supreme Court longer than any other person-thirty years. He was called "The Great Dissenter" because he was often at odds with his fellow justices and was capable of eloquently expressing his dissents. Louis Brandeis often joined him in dissents, and their views often became the majority opinion in a few years' time. Holmes resigned due to ill health in 1932, at age ninety. He died in 1935 and is buried in Arlington National Cemetery next to his wife.

Holmes's legal philosophy evolved over the sixty-odd years he wrote on the law. At first, he attempted a rational, systematic, or "scientific" conceptualization. But over time, he came to realize that the law was more of a compendium of decisions reflecting individual judges' resolutions of actual cases. Thus, the growth of the law was by experience molded to actual controversies in the society of the day.

Widely considered a "liberal" because he believed in free speech and the right of labor to organize, Holmes was very conservative in his response to injury cases. He was a champion of "judicial restraint"-deferring to the judgment of the legislature in most matters of policy.

Holmes is considered one of the giants of American law. Not just because he wrote so well, but also because he wrote so much, and for so long. A lawyer seeking a quote from Holmes is never left wanting. Even the Internal Revenue Service building in Washington, D.C. bears his writing, "Taxes are the price we pay for a civilized society." (Source:

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On the first Sunday in March of 1931, about 500 people gathered in Langdell Hall at Harvard Law School to listen to a CBS Radio broadcast by Supreme Court Justice Oliver Wendell Holmes Jr., the ambitious, egotistical Civil War veteran and Harvard graduate (A.B. 1861, LL.B. 1866) who pioneered the concept of legal realism. The law was “a practical weapon,” Holmes believed, and legal cases are best judged according to realities rather than abstractions.

The radio address celebrated Holmes’ 90th birthday, one of many moments of adulation that spring that amused and pleased him — so much praise, he said, even though “self is so near vanishing.”

Holmes should not have worried about his “self” vanishing. He remained a household name after his death. He was the first Supreme Court judge to merit a biographical movie (“The Magnificent Yankee,” in 1950). Besides being a judicial pioneer, his many aphorisms outlived him. One is especially apt today: “I like paying taxes. With them I buy civilization.”

Now there is another reason to remember the fiercely mustachioed Holmes: the Oliver Wendell Holmes Jr. Digital Suite, which went live on the Web Tuesday, the culmination of years of teamwork at the Harvard Law School Library (HLSL).

The Oliver Wendell Holmes, Jr. Digital Suite offers unprecedented access to the Harvard Law School Library’s rich collection of Holmes archival material. Using a new search platform developed by the Library’s Digital Lab users can now search over 100,000 digitized documents and over 1,000 images from multiple collections from a single access point. A search may also be easily refined using the site’s faceted search functions …

Note: Today it seems to be having some technical difficulties but I am sure that this will be up again soon - what a trove of wonderful material.


With Louis Brandeis:

The great dissenter, strolling on the arm of his Supreme Court colleague and fellow HLS alumnus Louis Brandeis, ca. 1927

Childhood photo with his older siblings: Amelia and Edward, ca. 1856

The flask of laudanum that Holmes carried with him in the Civil War

The tin ammunition box he used to carry his lunch when he served on the Court

Evidence that conjures small moments in the life of a legal giant: the receipt for a bird, its cage and some seed, bought by his wife

Fanny Bowditch Dixwell, shown here, ca. 1870, a few years before she and Holmes married

Holmes ca. 1903, toward the beginning of his 29 years on the Supreme Court

Lieutenant Holmes at 21, posing for a photo in his Civil War uniform

John Ching Hsiung Wu, who was a student at HLS in 1923 and would be the principal author of the Constitution of the Republic of China, inscribed this photo in 1930 to his “intellectual godfather.”

A first edition of “The Common Law” (1881), with notes in the margin scrawled by the author


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1. Justice Oliver Wendell Holmes - The Shaping Years

Justice Oliver Wendell Holmes: The Shaping Years, 1841-1870

(no image) Justice Oliver Wendell Holmes by Mark DeWolfe Howe (no photo)


Mark DeWolfe Howe had intended to write a multi-volume biography of Justice Holmes from his birth in 1841 to his eventual death in 1935. Unfortunately, Howe died unexpectedly at a relatively young age and only succeeded in completing two volumes. This volume, the first, covers Oliver Wendell Holmes, Jr.'s early years as the famous son of a famous father, his service in the Civil War following his attendance at Harvard, and his time in private practice after the war. All this would lay the groundwork for his eventual ascension to associate justice on the U.S. Supreme Court. It is an excellent work for young lawyers, people of a historical bent, or simply those who want to learn something about the Yankee From Olympus
---Review by Robert Bolton on goodreads

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2. Justice Oliver Wendell Holmes: The Proving Years, 1870 - 1882

Unfortunately the book is not in goodreads.


This is the review in the Maine Law Review.


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3. Honorable Justice: The Life of Oliver Wendell Holmes

(no image) Honorable Justice: The Life of Oliver Wendell Holmes by Sheldon M. Novick Sheldon M. Novick


Generations of law students have been raised on his inspiring dissents. His book, THE COMMON LAW, still in print after 100 years, dominates the history of legal thought in America. He is still one of the best known justices of the Supreme Court...yet until now there has been no biography of Oliver Wendall Holmes.
Born into mid-19th century Boston society, Holmes grew up knowing everyone. As a young man, he fought in the Civil War and was seriously wounded. He recovered and returned from the war to practice law and teach at Harvard Law School before his appointment to the bench.

Holmes was always contrary. In the hysteria surrounding WW I, he stood firm for free speech. Later, bucking the tide of public opinion, he refused to uphold the voting of Southern blacks

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4. The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes

(no image) The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes by Liva Baker (no photo)


Baker (Miranda, 1983, etc.) presents a highly readable, scholarly biography of the distinguished and enigmatic jurist.

Holmes's life prior to his elevation to the Supreme Court in 1902 was largely an insular and intellectual one, occupied with the arcana of legal scholarship and devoid of events of great drama (with the important exception of the Civil War, in which Holmes received wounds at Ball's Bluff, Antietam, and Chancellorsville).

Nonetheless, Baker demonstrates that Holmes made enduring contributions to American legal thought during this period, first as a Harvard professor and author of the classic The Common Law, and later as a Massachusetts judge.

Baker shows how the horrors of the Civil War shaped Holmes's pessimistic, skeptical, and highly rationalistic view of human nature, how his background as heir to the intellectual and cultural legacy of Puritanism made him an autocrat who "didn't believe much in rights,'' and how his vast legal scholarship did not prevent him from rejecting hoary common- law rules.

The author discusses Holmes's great (and infamous) opinions for the Supreme Court with intelligence and objectivity- -Giles v. Davis, in which Holmes upheld Alabama restrictions on the voting rights of black Americans; his free-speech dissents, which, although articulating the basis of modern free-speech jurisprudence, Holmes privately dismissed as upholding the "right of a donkey to talk drool''; his notorious decision in Buck v. Bell, in which he upheld the sterilization of an allegedly feeble- minded woman with the declaration that "three generations of imbeciles are enough.''

Although some of Holmes's decisions shock modern sensibilities, Baker rightly finds value in his careful and intellectually honest judicial restraint, even regarding legislation he disliked.

A fine, thoughtful biography of one of American legal history's most formidable intellects. -- Review by Kirkus Associates, LP. All rights reserved.

Book Discussion on C-Span:

The Common Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.

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The Common Law

The Common Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.


Only paperback edition of great legal classic by noted Supreme Court Justice. Lucid, accessible coverage, from a historical perspective, of liability, criminal law, torts, bail, possession and ownership, contracts, successions, many other aspects of civil and criminal law. Indispensable reading for lawyers, political scientists, interested general readers.

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5. Justice Oliver Wendell HolmesL Law and the Inner Self

Justice Oliver Wendell Holmes Law and the Inner Self by G. Edward White by G. Edward White (no photo)


By any measure, Oliver Wendell Holmes, Jr., led a full and remarkable life. He was tall and exceptionally attractive, especially as he aged, with piercing eyes, a shock of white hair, and prominent moustache.

He was the son of a famous father (Oliver Wendell Holmes, Sr., renowned for "The Autocrat of the Breakfast Table", a thrice-wounded veteran of the Civil War, a Harvard-educated member of Brahmin Boston, the acquaintance of Longfellow, Lowell, and Emerson, and for a time a close friend of William James.

He wrote one of the classic works of American legal scholarship, The CommonLaw, and he served with distinction on the Supreme Court of the United States. He was actively involved in the Court's work into his nineties.

In Justice Oliver Wendell Holmes, G. Edward White, the acclaimed biographer of Earl Warren and one of America's most esteemed legal scholars, provides a rounded portrait of this remarkable jurist. We see Holmes's early life in Boston and at Harvard, his ambivalent relationship with his father, and his harrowing service during the Civil War (he was wounded three times, twice nearly fatally, shot in the chest in his first action, and later shot through the neck at Antietam).

White examines Holmes's curious, childless marriage (his diary for 1872 noted on June 17th that he had married Fanny Bowditch Dixwell, and the next sentence indicated that he had become the sole editor of the American Law Review) and he includes new information on Holmes's relationship with Clare Castletown.

White not only provides a vivid portrait of Holmes's life, but examines in depth the inner life and thought of this preeminent legal figure.

There is a full chapter devoted to The Common Law, for instance, and throughout the book, there is astute commentary on Holmes's legal writings.

Indeed, White reveals that some of the themes that have dominated 20th-century American jurisprudence--including protection for free speech and the belief that "judges make the law"--originated in Holmes's work. Perhaps most important, White suggests that understanding Holmes's life is crucial to understanding his work, and he continually stresses the connections between Holmes's legal career and his personal life. For instance, his desire to distinguish himself from his father and from the "soft" literary culture of his father's generation drove him to legal scholarship of a particularly demanding kind.

White's biography of Earl Warren was hailed by Anthony Lewis on the cover of The New York Times Book Review as "serious and fascinating," and The Los Angeles Times noted that "White has gone beyond the labels and given us the man."

In Justice Oliver Wendell Holmes, White has produced an equally serious and fascinating biography, one that again goes beyond the labels and gives us the man himself.

The Common Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.

Autocrat of the Breakfast Table by Oliver Wendell Holmes Sr. by Oliver Wendell Holmes Sr. Oliver Wendell Holmes Sr.

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Abrams v. United States

MR. JUSTICE HOLMES dissenting.
MR. JUSTICE BRANDEIS concurs with the foregoing opinion.

Russian émigrés, charged with espionage, who were at the center of the Court's 1919 decision in Abrams v. United States - See more at:

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The White Court

The White Court, 1910-1921

When the Supreme Court reviewed the Standard Oil antitrust case in 1910, it affirmed the order but altered the law. Congress, said Chief Justice Edward Douglass White, only meant the law to punish "unreasonable" restraint of trade. White’s "rule of reason" became a rule of law.

In 1914 the Supreme Court announced that if federal officers seize things illegally, federal judges must not admit such things in evidence in their courtrooms. But that decision did not bind state courts. Until 1961 the Court left states free to admit such evidence if they chose.

In January 1916, President Woodrow Wilson nominated Louis D. Brandeis for Associate Justice. Brandeis had successfully argued Muller v. Oregon before the Supreme Court in 1908, but the New York Times thought the Court no place for "a striver after changes." William Howard Taft and Joseph H. Choate called him "not a fit person" for the bench. The Senate wrangled for almost five months before confirming him.

Of all challenges to reform, child labor was the most poignant; "a subject for the combined intelligence and massed morality of American people to handle," said Senator Albert J. Beveridge. In 1916 Congress passed a law to keep goods made by child labor out of interstate commerce.

As a result, John Dagenhart, less than 14, would lose his job in a textile mill in Charlotte, North Carolina. His brother, Reuben, not yet 16, would lose 12 hours of piecework a week.

Their father asked the federal district court to enjoin the factory from obeying the law and United States Attorney William C. Hammer from enforcing it. As "a man of small means," with a large family, he complained, he needed the boys’ pay for their "comfortable support and maintenance." Their work was "altogether in the production of manufactured goods" and had "nothing whatsoever" to do with commerce.

When the district judge granted the injunctions, the U.S. attorney appealed to the Supreme Court. Five Justices thought that in enacting the Child Labor Law Congress had usurped the powers of the states; such laws might destroy the federal system.

Legislation can begin where an evil begins, retorted Justice Oliver Wendell Holmes, dissenting. If Congress chooses to prohibit trade in "the product of ruined lives," the Court should not outlaw its choice. He added: "I should have thought that if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States."

Three Justices joined Holmes’s dissent. So did Congress; it promptly set high taxes on products of child labor.

Two months after Congress declared war on Germany in April 1917, it passed an Espionage Act that punished attempts to obstruct enlistment and discipline in the armed forces. In 1918 it passed a Sedition Act so broadly worded that almost any critical comment on the war or government might incur a fine of $10,000, or 20 years in prison, or both.

Under the 1917 law, government attorneys filed almost 2,000 prosecutions, among them United States v. "The Spirit of ’76." Only a handful of these cases reached the Supreme Court. Only after the Armistice did the Justices hear a case challenging the law by the First Amendment guarantee of free speech.

Charles T. Schenck and other members of the Socialist Party in Philadelphia were convicted of conspiring to mail circulars to drafted men. In forbidding slavery, these leaflets said, the Thirteenth Amendment forbade the draft.

For a unanimous Court, Holmes wrote that "in many places and in ordinary times" the Socialists would be within their constitutional rights. But the Bill of Rights does not protect words creating a "clear and present danger" of "evils that Congress has a right to prevent." Schenck was sentenced to six months in jail.

But Holmes and Brandeis dissented when the 1918 Sedition Act, and leaflets in English and Yiddish, came before them. Flung from a factory window to the New York streets on August 23, 1918, these papers summoned "the workers of the world" to defend the Russian Revolution against despots. "P.S.," said some, "We hate and despise German militarism more than do your hypocritical tyrants." By a seven-to-two majority, the Court upheld criminal convictions under the Act.

In his elegant dissent, Holmes remarked, "Congress certainly cannot forbid all effort to change the mind of the country." He saw no national danger in the "usual tall talk" of "these poor and puny anonymities." But he saw danger in persecution of opinions, for "time has upset many fighting faiths" and the national good requires "free trade in ideas." To reach the truth, people must weigh many opinions. "That at any rate is the theory of our Constitution. It is an experiment, as all of life is an experiment," Justice Holmes concluded.

The Court's decision in a child labor case prompted Congress to set high taxes on the products of child labor but not prohibit the practice entirely. Library of Congress - See more at:

Uncle Sam rounds up enemies of the state in this 1918 cartoon after Congress passed an act imposing severe penalties on speech that interfered with the prosecution of the war. Library of Congress - See more at:

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Tomerobber | 334 comments Bentley wrote: "The Common Law

The Common Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr.Oliver Wendell Holmes Jr.


Only paperback edition of great legal classic by noted Supreme Court..."

Hi Bentley . . . I downloaded an eBook copy of this for free from the iBookstore . . . for those who have access.

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There are many free copies on line - I hope you enjoy it.

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There is a wonderful new book out about Oliver Wendell Holmes Jr, who is featured in The Metaphysical Club by Louis Menand.

The Great Dissent: How Oliver Wendell Holmes Changed his Mind—and Changed the History of Free Speech in America

The Great Dissent How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy by Thomas Healy (no photo)


In the Atlantic Monthly - article

Seton Hall law professor Healy traces the evolution of the iconic United States Supreme Court Justice Oliver Wendell Holmes’s understanding of the U.S. Constitution’s First Amendment in this excellent work of history and legal scholarship. The author masterfully depicts the transition from Holmes’s limited view of First Amendment protections to an expansive, eloquent, and precedent-setting interpretation. In one of the landmark dissents in Supreme Court history (in the 1919 case of Abrams v. United States), Holmes said that the “ultimate good desired is better reached by free trade in ideas”; that sentiment has since become a bedrock of American jurisprudence and culture. The story of Holmes’s change of heart and mind unfolds gracefully, and features fellow justices, the legacy of John Stuart Mill, legal scholars, and social critics, all of whom provide the intellectual raw material that lead to the great jurist’s conversion. Along with clear explanations of the legal theories at play, the author provides context to Holmes’s decision with informative descriptions of the historical events of the time and insightful forays into Holmes personal psychology. This is a fascinating look at how minds change, and how the world can change in turn. 8-page photo insert. Agent: Ryan Fischer-Harbage, Fischer-Harbage Agency.

Atlantic Monthly:

The Most Powerful Dissent in American History
By Andrew Cohen

If there is a more relevant or powerful passage in American law, I am not aware of it. Relevant because it expressed a universal concept -- free trade in ideas -- that 125 years after the Constitution was ratified still had not yet taken hold in our democracy. Powerful because it went beyond legal precepts to a fundamental fact of human existence: We all make mistakes. We all have good opinions and bad ones. None of us are right all the time. All of us at one point or another have to respect what someone else says. And life is an experiment from the moment we wake in the morning until the moment we lay our heads down at night.

It's a passage written 94 years ago that both explains and preserves our op-ed pages and the Internet, talk-radio shows, and blogs, in the brilliant blending of two American institutions that were not always destined to go together: the free market and free speech. It's a passage that both acknowledges human weakness and strives to master it, that recognizes the roiling diversity of American thought and seeks to make something clear and profound from it. From United States Supreme Court Justice Oliver Wendell Holmes in his dissent in Abrams v. United States:

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

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, and that truth is the only ground upon which their wishes safely can be carried out.

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think 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 imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

Of course, the story of free speech in America neither begins nor ends with Abrams. But it is a clear pivot point. In that 1919 case, a dispute decided one year minus one day after the end of the first "war to end all wars," the United States Supreme Court sustained the convictions of five Russian-born men who were prosecuted under the Espionage Act of 1917, as it had been amended by the Sedition Act of 1918, for "provoking and encouraging" resistance to the government's war efforts (and its hostile maneuvers toward Russia) through a series of pamphlets.

Such prosecutions would be unthinkable today, not because modern officials embrace criticism more bravely than their predecessors but because we have come as a nation and as a people to acknowledge that the First Amendment's protections are (and ought to be) especially stout when it comes to dissent about the public workings of government. And that nearly universal acknowledgment, which has survived America's four major wars since World War I and guides the way we both conduct business and handle our own personal affairs, was born in Justice Holmes' dissent.

Just in time for your August beach reading, Thomas Healy, a former federal appeals court law clerk and reporter for The Baltimore Sun, has written an excellent book about how Justice Holmes, perhaps the most famous and influential justice of all time, came to write this passage -- and came around, at last, to a rousing defense of the First Amendment. Titled The Great Dissent: How Oliver Wendell Holmes Changed His Mind-- and Changed the History of Free Speech in America, the book is a fascinating glimpse into an art that seems lost in law and politics today: the art of changing one's mind.

In meticulous detail, Healy tells us how the great jurist, who had staunchly upheld criminal convictions in free speech cases just months before, changed his mind in Abrams. He changed it because of an intense lobbying effort by his political friends and fellow judges. He changed it because he had been reading the work of legal and political philosophers in Europe, both living and dead. He changed it because he came gradually to realize how broadly the Justice Department was relying upon federal statutes to punish even that dissent which was obviously unlikely to undermine the government's ability to function.

Healy begins his book with an anecdote about a visit Justice Holmes received at home from three of his fellow justices, after he had distributed his dissent in Abrams but before he would publicly announce it. What transpired in that meeting isn't just "a remarkable piece of constitutional history," as Healy puts it, but remarkable for what it suggests about the way the Supreme Court does (or does not) operate today. Can you imagine Justices Scalia, Thomas and Alito visiting Justice Anthony Kennedy in this fashion? I cannot. From Healy's book, on the 1919 Court's initial reaction to Holmes' words:

"No one else on the Court wrote like this. Only Holmes could translate the law into such stirring, unforgettable language. Yet even by his high standards this was unusually fine, and his colleagues worried about the effect it might have. Although the war had ended a year earlier, the country was still in a fragile state. There had been race riots that summer, labor strikes that fall. A bomb had exploded on the attorney general's doorstep-- the opening strike, the papers warned, in a grand Bolshevik plot. A dissent like this, from a figure as venerable as Holmes, might weaken the country's resolve and give comfort to the enemy.

The nation's security was at stake, the justices told Holmes. As an old soldier, he should close ranks and set aside his personal views. They even appealed to [Holmes' wife] Fanny, who nodded her head in agreement. The tone of their plea was friendly, even affectionate, and Holmes listened thoughtfully. He had always respected the institution of the Court and more than once had suppressed his own beliefs for the sake of unanimity. But this time he felt a duty to speak his mind. He told his colleagues he regretted he could not join them, and they left without pressing him further.

Three days later, Holmes read his dissent in Abrams v. United States from the bench. As expected, it caused a sensation. Conservatives denounced it as dangerous and extreme. Progressives hailed it as a monument to liberty. And the future of free speech was forever changed.

There have been other instances where a justice changed his mind in a case of profound constitutional import. As Harvard Law School professor Laurence Tribe reminded me this week, Justice Potter Stewart shifted on the issue of reproductive autonomy from dissent in Griswold v. Connecticut in 1965 to the majority in Roe v. Wade in 1973. Justice William J. Brennan shifted on obscenity standards from Roth v. United States in 1957 to Paris Adult Theatre v. Slaton in 1973. Justice Harry Blackmun belatedly changed his mind about the constitutionality of the death penalty. Then there was Justice Owen Roberts' "switch in time" in West Coast Hotel v. Parrish in 1937. None come close to Holmes' "fighting faith" passage.

Judges, and politicians, are too often criticized for changing their minds. Are you not smarter today than you were 10 years ago? Twenty years ago? Have not life's many "experiments" given you wisdom that you did not previously have? The genius of Justice Holmes' dissent in Abrams wasn't just its eloquence it was "meta-ness." He was changing his mind about the need, the value, the glory, the benefit, of changing one's mind and of accepting the changing of other people's minds. Healy has written a magnificent book about a magnificent moment in American legal history -- and in the life of a magnificent man who was smart enough to understand just how wrong people can be.

message 21: by Tomerobber (new)

Tomerobber | 334 comments This is on my to buy list . . . I saw it when I was researching info about the Supreme Court.

message 22: by Bentley, Group Founder, Leader, Chief (new) - rated it 5 stars

Bentley | 44200 comments Mod
It looks very good and my interest is heightened of course due to The Metaphysical Club read.

message 23: by Bentley, Group Founder, Leader, Chief (last edited Aug 18, 2013 10:25PM) (new) - rated it 5 stars

Bentley | 44200 comments Mod
Oliver Wendell Holmes Senior - Oliver Jr's Father

Oliver Wendell Holmes, Sr. Notman Photographic Co., photographer. Cabinet photograph, Boston, undated. b MS Am 2246 (10)

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