Hyperethered Holmes

...How did an unrelenting Darwinist and eugenicist come to be revered as the Grand Old Man of the law...

...One suspects that it is not so much a difference in legal philosophy that bothers Alschuler, but a quintessen-tially American discomfort with complicated personalities...

...In the text he tells us Holmes was the subject of a best-selling novel, a hit Broadway play, and a movie...

...The war had made him contemptuous of idealistic causes like Abolition, but his new Nietzschean outlook drew him inexorably to an ethos that found favor in late nineteenth-century America: Social Darwinism...

...Supreme Court justice to be the subject of a best-selling novel, a hit Broadway play, and a movie, but this frantic little book does BOOK REVIEWS everything it can to bork him into oblivion, and blames him for every crisis in contemporary American life from the politics of resentment to the spread of obesity...

...In his opinion, Holmes spoke of the dangers of "being swamped with incompetence" and said it was "better for all the world if, instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind...

...Holmes ruled that if the speech was intended to obstruct recruiting, and if that would be the probable effect, then it was not protected speech...

...Holmes's most famous cases produced phrases that have entered the language...

...Defining a right as "what a given crowd will fight for," he confessed:" [I] place no stock in abstract rights and equally fail to respect the passion for equality...

...No, said Holmes: "The Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real difference...

...the rest of this 325-page volume is taken up by footnotes—actually end notes—that require constant backing and for thing and lead to sprained thumbs...

...Not to be discounted is the fact that he looked like a Grand Old Man of the law...

...His best-known statement, used with stunning dramatic effect in the movie Judgment at Nuremburg, comes from the 1929 case of Carrie Buck, "a feeble-minded white woman," who was the daughter of a feeble-minded woman and the mother of a feeble-minded child...

...Then came his memorable wrap-up: "Three generations of imbeciles are enough...

...His decisions on bilingual education and women in the workplace would cause cardiac arrest today...

...Holmes is not for the fainthearted...

...Our ideal is a simplistic poltroon who fits the tag, "What you see is what you get...

...The best way to sort all this out, to the extent that an author like Albert W. Alschuler can ever be sorted out, is to begin at the beginning and examine what would today be called the post-Civil War Stress Syndrome that Holmes experienced firsthand and the nation as a whole subsequently experienced as a cultural and philosophical sea change...

...Alschuler may sound like a conservative but his grammar gives him away...

...The young Holmes shared this philosophy and laid his idealism on the line, joining the Abolitionist movement and leaving Harvard in 1861 to serve as a lieutenant in the 20th Massachusetts...

...Holmes came home full of Nietzschean conviction that war, heroism, and danger make life worth living, and everything hangs on the struggle for power...

...Whenever he needs a collective pronoun he uses neither the traditional and now sexist masculine singular, nor the prevalent "he or she" of standard political correct"I had my staff compose a special prayer...

...Applying the theory of the survival of the fittest to industry, commerce, and social problems was catnip to a rapacious Gilded Age...

...To the contrary, Alschuler argues that the revolt Holmes led was actually against natural law and objective standards of right and wrong, and now we are paying the price in the malaise, alienation, narcissism, and cultural collapse we see all around us...

...Lawyers will cite anything that moves, but Alschuler cites things that would stand perfectly still if only he would let them...

...It gave the buccaneers of capitalism a rationale for exploitation, and gradually replaced natural law with a judicial system of "utilitarian pragmatism"—the law of "what works" when competing groups vie for power and dominance in an increasingly complex modern society...

...Six-foot-three with a regal bearing and a snow-white walrus mustache, he filled the need for a philosopher king during the Harding-Coolidge era and liberals responded accordingly...

...The author devotes his best chapter to answering this question...

...The America into which Holmes was born in 1841 based its judicial system on natural law: intrinsic or divinely inspired moral absolutes that were simply "there," such as the "inalienable" rights to life and liberty...

...Holmes dissented in the name of "freedom for the thought we hate," but later, in private, he left no doubt that he hated the thought: "What damn fools people are who believe things....All isms seem to me silly—but this hyperethereal respect for human life seems perhaps the silliest of all...

...Their morbid thoughts and macabre descriptions might have signaled a nervous breakdown in another kind of young man, but instead he came home full of a Nietzschean conviction that war, heroism, and danger make life worth living, and that everything hangs on the struggle for power...

...Buck, an inmate in a Virginia institution, was sterilized without her knowledge before being released...

...First, early twentieth-century America admired Darwinian principles, especially the celebration of power, and while eugenics per se never caught on, the progressive movement in general did: Holmes's America was as committed to trading up as ours is to dumbing down...

...In general, he held that because the white South was the dominant de facto power in the community, it could subordinate blacks if it wished, and there was nothing the federal courts could or should do about it...

...America's most influential jurist from his appointment to the Supreme Court by Theodore Roosevelt in 1902 to his retirement in 1932, Holmes promulgated a "brutal worldview," was indifferent to the welfare of others, sneered at all progressive movements except eugenics, and was a nihilist and existentialist who held human life meaningless...

...What really makes this book exhausting is the author's unflagging enmity toward Holmes...

...When Debs was sentenced to ten years, Holmes opined that isms fare best when tested in the "marketplace of ideas...

...Enigmas like Oliver Wendell Holmes need not apply...

...For whatever reasons of their own (psychology is not the author's chief concern), this entourage convinced themselves that Holmes was a civil libertarian and New Dealer who had revitalized the American judicial system, led a revolt against legal formalism and deductive reasoning, and made the law a living instrument of progress and pragmatism able to meet the needs of a changing society...

...Do employers who impose lighter work standards on women violate the Equal Protection clause...

...THE AMERICAN SPECTATOR ¦ March 2001 101 ness, but the new usage favored by absolute paragons of sensitivity, the feminine singular: "In the end, a person can do no more than assert her own personal, existential belief...

...He believed that mankind was of no cosmic importance, and that it would not much matter "if the whole ant heap were kerosened...

...I see no right in my neighbor to share my bread...

...He was seriously wounded in the chest at Ball's Bluff, took a bullet in the neck at Antietam, and another in the heel at Chancellorsville.That he also suffered from battle fatigue is evident in his letters from the front...

...Rosita Schwimmer was a pacifist alien who applied for citizenship, but said she would refuse to swear to defend the Constitution...

...Instead of giving the titles then and there where they logically belong, he hits the brakes and finishes his thought in the notes (Yankeefrom Olympus by Catherine Drinker Bowen, and The Magnificent Yankee by Emmet Lavery, made into a movie of the same name starring Louis Calhern as Holmes...

...In racial matters he extended the separate but equal doctrine, ruling that Alabama could require a private college to segregate because it operated as a corporation at the pleasure of the state...

...In a flurry of isolationism after World War I, several states banned 100 THE AMERICAN SPECTATOR ¦ March 2001 the teaching of all foreign languages...

...The Supreme Court declared the laws unconstitutional, but Holmes dissented on the grounds that the laws were "a reasonable and even necessary method of encouraging a common tongue...

...Holmes, who never met a sycophant he didn't like, was engulfed by Harold Laski, Max Lerner, Walter Lippmann, Benjamin Cardozo, John Dewey, Francis Biddle, and the undisputed leader of the pack, Felix Frankfurter, who laid on flattery with a trowel, calling Holmes a "tender, wise, and beautiful being," and said that to discuss his legal opinions "is to string pearls...

...To a humanitarian incensed over the practice of "treating people like things," Holmes replied: "If a man lives in society, he is liable to find himself so treated...

...He ruled that socialist Eugene Debs had no right of free speech under the 1917 Espionage Act...

...Afterwards he wrote Harold Laski: "I felt that I was getting near the first principle of real reform...

...His text is only 194 pages long...

...It led to the formation of a point of view that he held for the rest of his life and never hesitated to express in his The author believes that the law has been on a downward path ever since, and blames Holmes for leading it there...

...disarming way: "I come devilish near to believing that might makes right...

...An unabashed elitist, he "loathed the thick-fingered clowns we call the people...

...Like the heavy-handed kid in the commercial who likes a little salad on his dressing, Alschuler, a professor of law at the University of Chicago, likes a little book on his footnotes...

...Welfare moved him not: "As to the right of citizens to support and education, I don't see it...

...University of Chicago Press, 325 pages, $30 Taki University of Chicago Press, 325 pages, $30 Taki...

...Since this oath was the crux of the naturalization ceremony, the Supreme Court denied her citizenship...

...Debs had publicly condemned the World War I draft but claimed he was speaking against war in general, not this particular war...

...Later he confided his private thoughts on free speech to a friend: "Little as I believe in it as a theory, I hope I would die for it...