Thursday, August 20, 2009

Polygamy, astrology or cannibalism -- or torture, it turns out

Over at the Volokh blog, Bernstein and Somin are hatin' on Oliver Wendell Holmes, Jr., and having the good taste to do so via Mencken's takedown, which deserves to be more widely read. One does not have to read farther than the second paragraph to find a gem like this:
In three Espionage Act cases, including the Debs case, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside by any jury that has been sufficiently alarmed by a district attorney itching for higher office.
Less satirically:
The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased, save indirectly, to be even the creature of the people: it is the creature, in the main, of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty. Laws are no longer [sic] made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle -- a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.
That "no longer" seems a touch optimistic, but otherwise Mencken appears quite correct.

... Uh-oh. Volokh blogger Orin Kerr strikes back with "Justice Holmes Rocks." Given that I am usually much more likely to agree with Prof. Kerr than with Profs. Bernstein and Somin, this gives me pause. OTOH, Mencken's authority is difficult to deny.

Perhaps we can appreciate Holmes aesthetically if not legally?


  1. It is possible both are so. There are few other legal writers of his age worth attending to, and almost no other justices. Or perhaps I have that backwards.

    And we are talking about a reviewer who, passing on the first casebook (Langdell's Contracts casebook) called the author "our leading theologian of the law." Has to be the best realist put-down possible. And I've never forgot the p.o.v. of that casebook since encountering that sentence about it as a law student.

  2. That Mencken essay lists the "forward looking" Holmes opinions, and includes Buck v Bell, I think non-ironically, as one of those. That's the Virginia case on sterilizing the retarded.

  3. Mencken probably would've preferred the sterilizations of "idiots" on a much broader basis. We don't always realize how widely eugenics was mainstream pre-WW2.

    (Mencken also translated Nietzsche's Antichrist, an effort one can still pick up at bookstores here & there.)

    Used to have The Essential Holmes sitting around but dunno where it is now ....