Oliver Wendell Holmes

Oliver Wendell Holmes: A Willing Servant to an Unknown God

By Catharine Pierce Wells

Cambridge University Press, Cambridge, UK 2020 222 pages, $99.99

Reviewed by Christopher C. Faille

Catharine Pierce Wells records early in her new book on the life and times of the renowned Supreme Court Justice, that in a wartime diary, young Oliver Wendell Holmes told us of his near-death thoughts after he was badly injured in the Battle of Ball’s Bluff in October 1861. Holmes sustained other injuries later in the war, but that was the one that gives Wells the following poignant anecdote.

“Perhaps the first impulse was tremulous,” Holmes would write of himself as he became convinced of his coming demise. He was fearful of going to hell, as the idea had been taught to him, and he considered that perhaps he should turn to God, as God was conventionally understood, and make a deathbed recantation of certain heretical views of his own. Then, Holmes asserted “I thought I couldn’t be guilty of a deathbed recantation.” Guilty? He explains further, before getting to a turning point: “Then came in my Philosophy—I am to take a leap in the dark—but now as ever I believe that whatever shall happen is best—for it is in accordance with a general law.”

Therefore, at the age of 20, Holmes had a settled “Philosophy” with a capital

P, the sort one looks to for guidance in his or her final moments. His Philosophy was important enough for him to occasion a deliberate refusal to recant it at such a moment. What was it? It was the very old idea (I would call it the stoic idea, though

Wells does not use the term) that God is to be identified with a “general law” that determines all that happens, and that we are to rest content in this law, although we do not understand it and often will be baffled by its operations. At such moments, one might well see one’s own contentment—one’s decision to be content—as a leap in the dark.

That attitude gives this book its subtitle but not really its thesis. For Wells’ thesis is that Holmes’ jurisprudence is to be explained not as that of a stoic, but as a pragmatist, or rather that the stoicism is incidental to the pragmatism. Further, Wells’ understanding of pragmatism takes us to a generation before Holmes or his friend, William James. It takes us back to Ralph Waldo Emerson. As Wells tells it, Emersonian pragmatism was a third way between the inherited European philosophies of rationalism and empiricism. The rationalist works from first principles and self-evident definitions. The empiricist works from facts as revealed by the sense. The pragmatist works from values, largely defined by social consensus, as “we learn to admire some things and scorn others.”

I will refer to this compound of ideas hereafter as Wells/Holmes pragmatism—the sort of view Wells calls “pragmatism” and assigns to Holmes. I set aside until after further exposition, many quarrels with her take on the relevant intellectual history. Wells deserves to have her views expounded with some care first. So, let us proceed.

The Disappearance of Subjectivity

Wells/Holmes pragmatism has consequences for how we think of subjectivity. Rationalism can take the subject as a starting point: An “I” convinces itself that it thinks; therefore it exists, and it has to validate itself as a subject in this way before it can even work on establishing an objective reality. Empiricism, too, can take the subject as a starting point: “I” see red and get a roundish feel from an object presented to “my” senses, and only then start wondering whether this is a rubber ball or an apple. Wells/ Holmes pragmatism, though, considered as a third way, does not offer subjectivity as a starting point. After all, as noted above, social consensus is a starting point. “We” appears in the world before “I,” and we set the problems that I will reflect upon and seek to solve.

This gets us back to those deathbed thoughts of Holmes. One way of reading it is that he was willing to have his subjectivity disappear when the functions of the body ceased, because “whatever shall happen is best.” Death is the overcoming of the subjective by the objective, and a peaceful death is the willing demise of that which is overcome.

Wells believes that her reading of Holmes justifies a more charitable understanding of Holmes’ life’s work than some other readings, such as Albert Alschuler’s debunking take on Holmes in Law Without Values (2000). Wells’ reading allows us to see Holmes not as someone hopelessly marred by the war and helplessly spinning out dark amoral views from the bench. Rather, we can see him as someone working through and by the light of a coherent philosophy, even when we may disagree with the results in particular decisions or where he may have expressed himself too pithily for today’s comfort zones. Holmes was advancing the values he took to be those of the society in which he lived, seeking what would work, given what that society admired and scorned. And, though those values were not defined by legislation, the success of legislative initiatives was an indication of what they were. The development of the common

law was also an indication of what constitutes society’s consensus over values, and one gathers from Wells’ book that if Holmes (or her Holmes) did have an Archimedean “place to stand” in applying a rational lever to the ideas of legislatures, the common law tradition was that place.

The Alschuler view of Holmes, and the analogous views of other writers, often begin with his wartime experiences. They treat Holmes as a medical patient who has had morality driven out of him by something akin to shell shock. The Wells view can start earlier, noting that Holmes survived the war by adherence to what he called “my Philosophy,” something which had been formed already before he enlisted.

Contracts and Race

Wells addresses three big and contentious issues in Holmesian historiography: his pushback against his colleagues’ embrace of social Darwinism as expressed in the 1905 Lochner opinion; his view of race in America; and his notorious embrace of eugenics in the cause of an active weeding out of “imbecilic” gene lines in Buck v. Bell. I will not speak of his famous Abrams dissent and free speech issues in general because Wells, oddly, barely mentions them.

Wells does discuss Lochner, and for her it is an exhibit both of what Homes was really about, and of how the political left misunderstood him, thinking him one of them on slender evidence. The question in Lochner was whether state-imposed limits on working hours at a bakery constituted a violation of the liberty of both employees and employers. A bare majority of five said that it did, relieving the owner of the bakery, Joseph Lochner, of any obligation to pay the fine for violating this limit. The misunderstanding was that Holmes, by dissenting in this case, was taking the side of working people. He was not (and on this, Holmes himself, Alschuler, and Wells all agree).

Holmes was dissenting from the view that the Constitution can be read to instantiate any particular set of first principles, especially an economic theory, that “a large part of the country does not entertain.” The problem with the majority opinion, given Wells/Holmes pragmatism, is that there is no social consensus that the freedom of contract is as fundamental a value as it needs to be to justify Peckham’s opinion for the majority. The New York statute at issue is not the only evidence of dissension: Homes makes reference in his dissent likewise to laws against Sunday trading and usury. Both violate freedom of contract, yet it would have been a fringe move even in 1905 to invoke substantive due process in either context. The evidence for the absence of any broad societal consensus for unlimited freedom of contract was, Holmes reasonably thought, pretty pervasive.

As to racial questions, the touchstone is the case of Bailey v. Alabama (1911). Bailey was a Black man who quit his job. The terms of the job offer he had accepted sound a lot like peonage, also known as indentured servitude, or slavery on an installment plan. The law in Alabama that criminalized nonperformance of such a contract and that provided for the imprisonment of slacking peons seems on its face to have been a violation of the 13th Amendment.

The majority of the Supreme Court struck down Alonzo Bailey’s conviction. One peculiar but important point in the posture of this case was that the pertinent statute described the nonperformance of an employment duty under certain circumstances as “fraud.” The defendant had presumably defrauded the employer by promising to work for a year and in fact only working for a month. But the Alabama courts did not allow the defendants in such cases to testify as to their own intent.

Since fraud is historically an offense that does require a mens rea, this refusal to admit testimony on the point of the defendant’s state of mind indicated to the court that the appeal to the language of “fraud” was pretextual. Alschuler, in a Law without Values, credited Justice Hughes’ decision here with the adoption of realism before the days of the “legal realists.” Holmes, though, deserves no such credit.

Holmes dissented from the decision in Bailey, writing for himself and for Justice Horace Lurton, a former Confederate soldier. Why the dissent? One could suggest racism. (Indeed, the fact that Bailey was “a Negro” was accepted as evidence during his trial). No one would be surprised should we offer that as an explanation for Lurton’s vote, but in explaining Holmes, at least by convention, we require more. Amoral and war-born acceptance of the decisions of the Alabama legislature and its judiciary’s practices? That is Alschuler’s view but not Wells’. In fact, Wells finds that the majority opinion in this case violated one of Holmes’ most “deeply held convictions”—that the common law conception of contract was not about subjectivity. A contract is an objective fact, not a “meeting of the minds” in a sense that involves subjectivity, but the objective fact of a signature on a piece of paper or, perhaps, just a shaking of hands. Public, observable, physical matters of fact make up the agreement. Wells expresses Holmes’ view of contract as a rhetorical question, “What does it matter that I intended to sell you five cows if I signed a contract that promised ten?” His insistence on this point may reasonably be said to follow from Wells/ Holmes pragmatism, which is in essence an escape from subjectivity. Holmes was, then, unbothered by the fact that the law at issue in Bailey prohibited the defendant from testifying about his own intentions.

Yet, that was not the only point that failed to bother Holmes here. He was unbothered by the fact that the state was enforcing what might normally be considered a mere civil debt by the force of the criminal law. He was also so unbothered, in this case, by so many fairly obvious contextual matters, that Wells dips into Alschulerian language after all, describing Holmes as the victim of a “deadening process” or of a “numbing,” as he worked to forget the sacrifices of the war that had brought about the 13th Amendment.

Excited by Dramatic Themes

We arrive now at what may be the favorite case for anti-Holmes polemicists, Buck v. Bell (1927). A Virginia statute provided for the sexual sterilization of the inmates of institutions for the feeble minded, should their condition be deemed hereditary. Eugenics, a belief in the possibility of improving the human species by encouraging the reproduction of people deemed to have desirable heritable traits and/or discouraging or forcibly preventing the reproduction of people who did not, was enjoying a big run in the English-speaking world at the time. Virginia’s statute was in this line. Holmes, writing for the majority in an 8-1 split, said:

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.”

Note that it is not the Commonwealth of Virginia that is “calling upon” Carrie Buck to make a sacrifice here. Holmes says that

something more abstract, the “public welfare,” is doing the calling. The analogy entails that, because a soldier may be called upon to sacrifice himself to protect a collective entity against foes, foreign or insurgent, Carrie Buck can appropriately be called upon to protect the public against … Carrie Buck, her mother, and her unborn children, deemed incompetent by genetic fate. “Three generations of imbeciles are enough.”

As with Bailey, so with Buck, Wells makes it clear that she is not defending these opinions as a matter of substantive justice. But she again wants to adopt a more sympathetic view of Holmes’ reasons for voting and writing the way he did than do his detractors. And again, she focuses on subjectivity as, for Holmes, a great culprit. This is a more sympathetic view because Holmes’ orientation toward objectivity is, in her view, a feature, not a bug, in his thought. She thinks he is right that without a tether to objective facts, law quickly becomes merely a power struggle.

Beyond the objective/subjective distinction, Wells tries to explain where Holmes went wrong in a sympathetic way by explaining that he was “excited by the dramatic themes” exhibited by the facts of the case. “Science, evolution, eugenics—it was all there.” We may become more sympathetic to Holmes if we see him as prodded to support Virginia because of his own intellectual curiosity, and the way in which that state seemed to be at the forefront of scholarship and science.

The problem, though, is that Carrie Buck as an individual—as a subject, one might even say, rather than an object—seems to have been completely absent from Holmes’ mind. Note that in the passage quoted above, Holmes argues that the sacrifice Buck was called upon to make was “often not felt to be [a sacrifice] by those concerned.” Someone below some level of intelligence, however managed, may be incapable of understanding the significance of a tubal ligation (or a vasectomy) and so may not feel it to be a sacrifice. But Buck certainly did see it as such. So, why focus on what is “often” not here the case? Because what she actually felt about her sacrifice was not Holmes’s concern. That is a matter of her subjectivity after all.

Final Thoughts

I do not know whether Wells, a professor of Boston College Law School, has in fact made a lasting contribution to the study of Justice Holmes. I am sure that specialists in Holmes’ life and work, far more expert than I, will review it and, over time, the extent of Wells’ contribution will become clear to the broader circle of interested parties. I have to note that as to Lochner, Wells and Alschuler are in accord. As to Bailey, she takes a different tack, but ends up referring to a war-related “deadening.” As to Buck, she may be marking out distinctive terrain.

The contribution I wish to make is this: what Wells lays out, and what I have been calling here Wells/Holmes pragmatism, is not classical pragmatism. It warrants some other label: post-Emersonian Stoicism, perhaps. The views under discussion bear little or no relationship to the views of Charles Peirce and William James, paradigmatically considered pragmatic. In James’ classic article, “The Moral Philosopher and the Moral Life,” he writes the following:

Or if the hypothesis were offered us of a world in which Messrs. Fourier’s and Bellamy’s and Morris’ utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain?

James’ “specifical and independent” emotion was an unabashedly subjective response to the torture of a subject, a “certain lost soul.” He was overstating a bit, it might be, the condition of an Alonzo Bailey or a Carrie Buck (and we should probably refrain from seeing Joseph Lochner in those terms at all). But contemplation of this passage might have complicated Wells’ thesis for the better, at least insofar as that thesis presumes to tell us not about Justice Holmes but about pragmatism. 

Christopher C. Faille is a member of the Connecticut Bar and the author of Gambling with Borrowed Chips, a heretical account of the Global Financial Crisis of 2007-2008. He regularly writes for AllAboutAlpha.com, a website devoted to the analysis of alternative investment vehicles, and for InsidetheNation.com, part of the OneQube network.