In the Other American Tradition
MENDELSON, WALLACE
In the Other American Tradition A CASUAL PAST By Francis Biddle Doubleday. 408 pp. $5.95. JUSTICE HOLMES, NATURAL LAW AND THE SUPREME COURT By Francis Biddle Macmillan. 77 pp....
...With the precision of an accomplished lawyer, Biddle parries the attack while sparing Church doctrine...
...What Jesuit critics particularly resent is pragmatism's insistence that morality is not less moral, nor law less legal, for being the product of human forces...
...As the Victorian era came to an end, John Dewey, Thorstein Veblen, James Harvey Robinson, Charles A. Beard and Holmes led a pragmatic revolt against formalism, abstraction and the deductive approach in the social sciences...
...It also led to his appointment as chairman of the National Labor Relations Board...
...He preferred to formulate his major premises not from revelation, but from observation and experience...
...It ends with some thoughts (within the layman's grasp) on the nature of the judicial function, and provides the framework for an answer to Holmes' Jesuit critics— whom Biddle deems a small minority even within their own persuasion...
...The brutality he discovered there, and his reaction to it, cost him important clients...
...Although for the most part working independently of one another, they had in common a deep appreciation of the scientific (i.e., inductive) method...
...For him there were no heretics...
...This is hardly the occasion to break a lance in that dispute, but it may be well to sketch in the broad context in which it occurs...
...In Francis Biddie's words, he "had the moral courage to accept uncertainty, and the intellectual humility to know that he could not know—this is Truth...
...Its critics, believing that Natural Law springs from the divine, feel that to build on anything less is to build on human conceit and perversity...
...Pragmatism maintains that Natural Law is nothing more than a man-made concept to assuage an all-too-human sense of insecurity in this ruthless world...
...It was not so much the conclusions of the great pragmatiste that gave them victory as their common approach which promised freedom from the tyranny of outworn social dogma...
...Here one finds the perception, grace and warm understanding that are the hallmarks of wisdom...
...2.50...
...One result is that we now have Justice Holmes, Natural Law and The Supreme Court, the embodiment of Biddle's lectures at the University of Texas late in 1960...
...Perhaps the basic error of Holmes' critics, he maintains, lies in their failure to distinguish between skepticism and cynicism, though it may be that by their standards there is no difference...
...True to the democratic tradition, Holmes honored the inquiring mind...
...Before that time he had a brief flash of a broader world, serving as secretary to Justice Holmes in the early days of the Progressive movement...
...Not least among the honors that have come to Francis Biddle was the invitation to give the first Holmes Lectures...
...In place of Natural Law, it seeks a rational, human basis for law and other social institutions...
...A turning point in his career seems to have come during the Great Depression when he served Governor Gifford Pinchot by investigating "company police" in the Pennsylvania coal and iron industries...
...of the Robinsons who built some of the country's first canals and railroads...
...An exemplar of the latter tradition is Francis Biddle—scion of the "eccentric Randolphs" who ruled Virginia for 200 years...
...Their often violent response to pragmatism is based on the concept of Natural Law— to which our moral and legal systems "must" conform or be damned...
...By the author's standards, though, the perspective may not seem long at all...
...Biddle practiced law in Philadelphia for 20 years (1916-36) with marked success—and with some of the blinders that this often entails...
...When Holmes left the bulk of his estate to the nation, Congress decided to devote the proceeds to his memory...
...A Casual Past, Biddle's recently published memoir, may turn out to be only the first volume of an autobiography...
...Later, Biddle served as a Federal judge, as Attorney General of the United States and, after the War, as a member of the International Military Tribunal at Nürnberg...
...The book begins with an exquisite little picture of Holmes' "beliefs and disbeliefs," which provides important clues to the great Supreme Court Justice's personal philosophy...
...Another tradition, however, deserves more attention than it has received: that of the boy born into a great family who somehow resists the temptations of his lot, and achieves distinction in his own right...
...After all, he remembers his grandfather Robinson, who dined with Lafayette...
...This recalls the attacks upon physical scientists not so long ago when they tried to free themselves from the same "eternal verities.' What Holmes is undergoing now is simply a milder form of what Galileo suffered in his day...
...From this, it follows for some that Holmes was "the first fascist" (the phrase suggests that belief in Natural Law does not bring complete immunity from the human failings in question...
...As for Holmes himself, he did not need the occult to bolster his sense of decency, nor to justify his faith in the perfectibility of man...
...His skepticism was in the Greek tradition that saw questioning as the road to knowledge...
...Beginning with the Randolphs and the Robinsons, it takes a "long view...
...Reviewed by WALLACE MENDELSON Professor of Government, University of Texas It is a celebrated tradition in America that the underprivileged boy may rise to greatness despite all obstacles of hardship and obscurity...
...Biddle's re-creation of the old heroes—and those less than heroic —among his ancestors is highly entertaining...
...and of the "sturdy Biddies" who did so much to bring greatness both to the nation and to their own family...
...But it is surpassed by the descriptions of people and events in his own life...
Vol. 45 • July 1962 • No. 14
