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embodiment of the common will. It has become a conscious reaction
upon itself of organized society knowingly seeking to determine its own
destinies.”

33 Holmes explained as follows:

Although this is not the place for extended economic discussion, and although the law
may not always reach ultimate economic conceptions, I think it well to add that I cherish
no illusions as to the meaning and the effect of strikes. While I think the strike a lawful
instrument in the universal struggle of life, I think it pure phantasy to suppose that
there is a body of capital of which labor as a whole secures a larger share by that means.
The annual product, subject to an in¬nitesimal deduction for the luxuries of the few, is
directed to consumption by the multitude, and is consumed by the multitude, always.
Organization and strikes may get a larger share for the members of an organization, but,
if they do, they get it at the expense of the less organized and less powerful portion of
the laboring mass. They do not create something out of nothing. (176 Mass. At 505, 57
N.E. at 1016)
34 This was most likely to take place as cases were taken from trial to appeal, the appel-
late courts ruled on questions of negligence in speci¬c situations, and such situations
were withdrawn from further submission to a jury. See, e.g., Lorenzo v. Wirth, 170 Mass.
596, 49 N.E. 1010 (1898), in which Holmes wrote in a personal injury case that it was
appropriate for the trial court to decide that no breach of duty had occurred and to
direct a verdict for the defendant, rather than leave the question to the jury. Two dis-
senting justices objected that the question of negligence should have been left for the
jury.
35 Holmes, “Law in Science “ Science in Law,” in Collected Legal Papers, 210.
Judges, Principles, and Policy 133

Morton Horwitz sees evidence, especially in writings such as “The Path
of the Law,” of a major transformation of Holmes™s thinking, a reversal of
his thesis in The Common Law.36 A change is evident, but it is related less
to Holmes™s basic vision than to the nature of the controversies ¬‚owing

36 Horwitz, Transformation of American Law 1870“1960, 138. Prof. Horwitz argues that
the fundamentally new problems brought on by social and economic turbulence in
the 1890s caused Holmes to abandon his advocacy of objective standards, adopt the
de¬nition of law as prediction of judicial decisions, separate law and morals, and assume
an Olympian skepticism leading to judicial restraint. While there is an important
transformation during this period, it does not go that far. Holmes had suggested the
prediction theory in lectures at Harvard College in the spring of 1872. His distinction of
law and morals in the 1890s remains the same as it was in the 1870s, as well as the roots
of his famous skepticism. And his restraint would remain closely linked to his theory of
objective standards, itself still part of the methodology of line drawing, although exactly
what was involved in this methodology would raise new questions for him as the nature
of legal controversies evolved.
Horwitz sees this transformation re¬‚ected in the famous lecture delivered by
Holmes to the students of Boston University Law School in 1896 titled “The Path of
the Law.” It was published the following year in the Harvard Law Review. The essay has
been called “the single most important essay ever written by an American on the law”
and “the best article-length work on law ever written.” It has been cited as seminal
for various later schools of jurisprudence, engendered strong views on Holmes, both
laudatory and critical, and has usually been at the center of attention for the more
occasional writers on Holmes. On its centennial in 1997, it alone was the subject of
several symposia of distinguished legal scholars and at least one book-length study.
Examined with care, and in the broad context of Holmes™s thought, the essay is
consistent with his already established perspective. The essay is organized into two
parts, very much reminiscent of the two phases of his research, demarcated by Holmes™s
remark, “So much for the limits of the law. The next thing I wish to consider is what are
the forces which determine its content and its growth.” Collected Legal Papers, 179. The
early years from 1870 to 1873 were devoted to the ¬rst topic, the years 1876 to 1880 to the
second.
The essay has had the effect of associating Holmes with the school of legal
positivism and its strict separation of law and morals. In fact it goes no further in that
direction than Holmes had ever gone. The discussion of “limits” is preceded on p. 168
by introductory remarks that note that the separation of rights and duties from their
legal consequences exempli¬es the confusion between legal and moral ideas. In the
ensuing discussion Holmes ¬rst demonstrates, as he did in the early essays, that legal
rights and duties are not coextensive with their ordinary “moral” meaning, re¬‚ecting
the initial focus of his critique of John Austin in 1870“72. He then observes that legal
malice, intent, and negligence follow an external standard, while “[m]orals deal with
the actual internal state of the individual™s mind,” re¬‚ecting his early equation of
“moral” with vengeance, and inspiring the evolutionary theme that began to emerge in
1873 with the analysis of negligence.
In the second part of the address, Holmes expands on the latter insight by observing
that, while in form the law may appear logical, any conclusion can be given logical
form and the law is actually shaped by tradition, tending toward an external standard.
Holmes now refers to this as a “general theory . . . of liability.” This is summarized as
holding that “malice, intent, and negligence mean only that the danger was manifest
Holmes, Legal Theory, and Judicial Restraint
134

into the courts. Disputes in the original model were related to estab-
lished patterns of conduct, allocating the burden of injury. Patterns were
discernible, from which standards of prudence could be inferred to deter-
mine outcomes and articulate rules. There the law was an “unconscious,”
or perhaps intuitive, embodiment of common will. In the new environ-
ment, opposing parties were seeking less to redress the past than to con-
trol the future. The courts were becoming a forum for the competition
among competing interests. Judges were asked not just to work out bound-
aries between distinct activities, governed by discernible precedents, but
to choose among competing interests battling for supremacy. When a
doubtful case arose, “with certain analogies on one side and other analo-
gies on the other,” it was important to remember

that what is really before us is a con¬‚ict between two social desires, each of which
seeks to extend its dominion over the case, and which cannot both have their
way. The social question is which desire is strongest at the point of con¬‚ict. The
judicial one may be narrower, because one or the other desire may have been
expressed in previous decisions to such an extent that logic requires us to assume
it to preponderate in the one before us. But if that be clearly so, the case is not a
doubtful one. Where there is doubt the simple tool of logic does not suf¬ce, and
even if it is disguised and unconscious the judges are called on to exercise the
sovereign prerogative of choice.37

From this it should be evident that the judicial prerogative, while
“sovereign,” was limited. The case must be decided, but not on general
grounds.
In the years after 1900, Holmes increasingly worked this observation
into his approach to constitutional law. The last sentence resonates with
the experience of Vegelahn and Plant. Judges must decide all cases, even
doubtful ones. A case is not doubtful where one “desire” already prepon-
derates, as expressed in prior precedent (he had unsuccessfully argued
such a preponderance in Plant). Where the case is truly doubtful, it has

to a greater or less degree, under the circumstances known to the actor.” This is the
formulation ¬nally set forth in The Common Law after external standards had been
applied across the body of the law.
However, a change of emphasis may be found in such statements as “For the rational
study of the law the black-letter man may be the man of the present, but the man of the
future is the man of statistics and the master of economics,” and the law is “a concealed,
half-conscious battle on the question of legislative policy.” This refers to Holmes™s
evolving sense of the nature of cases, discussed in chapter 8, from those involving
retrospective analysis of precedent to those entailing battling interests looking to the
future.
37 Holmes, Collected Legal Papers at 239.
Judges, Principles, and Policy 135

to be decided even if the doubt is “disguised and unconscious.” This is
a condition re¬‚ecting, as the address continues, “the uninstructed and
indolent use of phrases to save the trouble of thinking closely” and “the
danger of reasoning from generalizations unless you have the particulars
they embrace in mind”; “[a] generalization is empty so far as it is gen-
eral.”38 We may infer an area marked off for restraint: the law should
not embody views of policy that are still competing for dominance, but
encompass only those views of policy that have already prevailed. It is
better that this kind of doubtful case is not disguised by legal language,
that the ongoing competition is revealed and left to nonjudicial means
for resolution.
Contemporary legal philosophy is blind to this insight. Judges are fully
sovereign in doubtful cases, in a sense unlike the limited one described
by Holmes. Legal positivism in its stricter “exclusive” mode, presumably
precluding argument from morals, must somehow ¬nd an answer in the
authoritative texts, or let the judges “legislate” in the strong sense. Inclu-
sive positivism, such as Ronald Dworkin™s inclusion of rights and princi-
ples, invites reasoning from generalizations. Conventional theory assumes
that there must always be a right legal answer, while Holmes™s vision rec-
ognizes wide gradations of certainty.
Fourteen years after he delivered these views, and after eleven years on
the Supreme Court, Holmes gave the speech to the Harvard Law School
Association of New York containing the phrase “time for law.” In it Holmes
made a mature statement of his position with respect to the problem of
judicial interpretation, and implementation, of social desires:

It cannot be helped, it is as it should be, that the law is behind the times. I told
a labor leader once that what they asked was favor, and if a decision was against
them they called it wicked. The same might be said of their opponents. It means
that the law is growing. As law embodies beliefs that have translated themselves
into action, while there still is doubt, while opposite convictions still keep a battle
front against each other, the time for law has not come; the notion destined
to prevail is not yet entitled to the ¬eld. It is a misfortune if a judge reads his
conscious or unconscious sympathy with one side or the other prematurely into
the law, and forgets that what seem to him to be ¬rst principles are believed by
half his fellow men to be wrong.39

Holmes made this speech when popular discontent with the Court was,
as Holmes put it, palpable “ the public saw the Court as a tool of “the

38 Id., 239“40.
39 Holmes, “Law and the Court,” in Howe, Occasional Speeches, 171“72.
Holmes, Legal Theory, and Judicial Restraint
136

money power” and thought the Court had “usurped” the right to declare
an Act of Congress unconstitutional. The intense discontent to which
Holmes referred grew out of the Court™s decisions under the due process
clauses of the Fifth and Fourteenth Amendments that no person shall
be deprived of life, liberty, or property without due process of law. I now
turn to Holmes™s application of the principles of his philosophy to due
process jurisprudence from the turn of the century, and to the decision
of Lochner v. New York.
9

Common Law Constitutionalism




All rights tend to declare themselves absolute to their logical extreme. Yet
all in fact are limited by the neighborhood of principles of policy which
are other than those on which the particular right is founded, and which
become strong enough to hold their own when a certain point is reached.
O. W. Holmes, Hudson County Water Co. v. McCarter (1908)


In 1901, when the assassination of President McKinley elevated Theodore
Roosevelt to the presidency, Holmes had for three years been Chief Justice
of the Supreme Judicial Court of Massachusetts. Having sat on that court
for two decades, he was now sixty-one, pushing the limit of eligibility for
a Supreme Court appointment. Though Justice Horace Gray was ill and
expected to resign, creating an opening for another Massachusetts man (a
remarkable priority in the politics of the nation), McKinley had promised
the appointment to a prominent Boston lawyer, Albert Hemenway. With
the President™s sudden death, social and family ties came to bear in
Holmes™s favor.1 An old Roosevelt friend, Massachusetts Senator Henry
Cabot Lodge, intervened on the side of the judge whom he had known
from childhood, and made him the leading and ultimately successful
candidate.
For almost any other Republican the controversial dissents in the labor
cases would have disquali¬ed him. He had written them despite his own
doubts about the labor cause, following a theory that, if we take him

1 Roosevelt had also been impressed by a speech given by Holmes on Memorial Day, May
30, 1895, titled “The Soldier™s Faith.” Edmund Morris, Theodore Rex (New York: Modern
Library, 2002), 316; White, Justice Oliver Wendell Holmes, 299“307.

137
Holmes, Legal Theory, and Judicial Restraint
138

at his word, effectively removed his political and economic sympathies.
Unaware of that, the President wrote Lodge:
The labor decisions which have been criticized by some of the big railroad men
and other members of large corporations contribute to my mind a strong point
in Judge Holmes™ favor.
The ablest lawyers and greatest judges are men whose past has naturally
brought them into close relationships with the wealthiest and most powerful
clients, and I am glad when I can ¬nd a judge who has been able to preserve his
aloofness of mind so as to keep his broad humanity of feeling and his sympathy
for the class from which he has not drawn his clients.2

We know from the full record that sympathy and humanity had rather
little to do with it,3 leaving “aloofness of mind” “ Holmes™s extraordi-
nary intellectual detachment “ as an even more impressive force. Shortly
after his con¬rmation Holmes would disappoint Roosevelt with a dis-
sent in Northern Securities v. United States. This was the administration™s
successful challenge under the Sherman Act to the combination of the
Northern Paci¬c and Great Northern railway systems through a holding
company, the Northern Securities Company. Roosevelt is said to have

2 Theodore Roosevelt to Henry Cabot Lodge, July 10, 1902, in Lodge, ed., Selections from the
Correspondence of Theodore Roosevelt, 2 vols. (New York: C. Scribner™s Sons, 1925), I, 517“18.
3 The very opposite of a broad humaneness has become the contemporary image, fed
by a 1977 comment by Professor Grant Gilmore of Yale. Appointed Holmes™s of¬cial
biographer after the death of Mark DeWolfe Howe, and an expert in commercial law,
which suited him to understand the period of Holmes™s tenure on the SJC, Gilmore was
unpersuaded by Holmes™s insistent “theory” and formed a profoundly negative opinion of
him from letters and the Massachusetts opinions. Gilmore died in 1982 without publishing
the expected next volume, having re¬‚ected:
Put out of your mind the picture of the tolerant aristocrat, the great liberal, the eloquent
defender of our liberties, the Yankee from Olympus. All that was a myth concocted
principally by Harold Laski and Felix Frankfurter about the time of World War I. The
real Holmes was savage, harsh and cruel, a bitter, life-long pessimist who saw in the courts
of human life nothing but a continuous struggle in which the rich and powerful impose
their will on the poor and weak.
But if that mean-spirited vision appealed to him, Holmes in the labor decisions did not
succumb to it, apply it to law, or leave it undisputed in the record, especially insofar as
something similar might have motivated his fellow justices in re¬‚exively quashing strikes
and picketing. His response to con¬‚ict, as he had seen it in war, literature, and legal
history, is too subtle and important to be easily caricatured. So also his association with
liberalism, to which he may not have had a natural affection, but for which he came to
¬nd alternative sources of support. The same might be said of his view of the “ordinary
man” whom, if not necessarily loved, occupied (in a constructive sense) a pivotal place
in his theory and practice. See Grant Gilmore, Ages of American Law (New Haven: Yale
University Press, 1977), 48“49.
Common Law Constitutionalism 139

exclaimed of Holmes, “I could carve out of a banana a judge with more
backbone.”4
Like the labor decisions, the Northern Securities dissent is another study
of intellectual detachment. It is an example of Holmes™s common law
orientation in reading a legislative text, which will help us to under-
stand his reading of a constitutional text. Similar detachment is a factor
in the famous dissents from decisions overruling state regulatory leg-
islation, such as Lochner v. New York. As in the revealing second labor
dissent, Holmes was in Lochner making a point about jurisprudential
method.
Despite a prevalent notion to the contrary, Holmes was not averse
to all plausible use of the Fourteenth Amendment due process clause
to overrule state legislation threatening personal or economic liberty.
This too was governed by differences of degree. That is evident from
Pennsylvania Coal Co. v. Mahon, where he wrote for the majority that,
in what he saw as an extreme case, an uncompensated deprivation of
property value might constitute an unconstitutional taking.5 In Lochner
it was the substitution of a general proposition to cover the true ground
for decision that underlay the memorable lines of his dissent.
In both of these instances, the “ordinary man” and the objective stan-
dard were a vital force. In Northern Securities, Holmes read the Sherman
Act as he would all legal texts: by the objective meaning of its words,
informed in cases of doubt by the weight of common law precedent. The
combination of Northern Paci¬c and Great Northern was challenged
under the terms of the Sherman Act, outlawing “every contract, combi-
nation in the form of trust or otherwise, or conspiracy, in restraint of
trade among the several states.” If these words were to apply to the case
at hand, he wrote, they would have to be stretched so as to apply equally
to “a partnership between two stage drivers who had been competitors
in driving across a state line.” To settle this doubt, Holmes con¬ned the
words to their meaning in similar context under previous common law
precedent. This led to his dissent against applying them to Northern Secu-
rities, despite the notoriety of the case itself (“Great cases, like hard cases,
make bad law”).6


4 193 U.S. 197, 400 (1904); see Morris, Theodore Rex, 316; White, Justice Oliver Wendell Holmes,
307, 330“32.
5 260 U.S. 393 (1922).
6 193 U.S. 197, 400 (1903).
Holmes, Legal Theory, and Judicial Restraint
140

His approach to a text began with a comparison of the facts of a case
with the plain words of the text in question. While the precise words
of a statute were dispositive when their application was objectively clear,
where there was doubt the recourse was not to intent or the “spirit” of
the act. Precedent and ultimately the line-drawing method must resolve
questions of con¬‚ict or ambiguity, avoiding appeal to the empty maxim.
As a Massachusetts judge Holmes had frequently followed this approach,
and we should not be surprised to ¬nd that line drawing was applied to
cases in which statutes were involved, or even a constitution.7
Before he joined the SJC Holmes had seen no reason why an under-
standing similar to that outlined above could not apply to reading and
deciding a constitutional text. Constitutional law did not stand apart in
any scheme of classi¬cation with which he experimented in the 1870s.
It had not assumed the place it has today of a privileged area of legal

7 In Commonwealth v. Churchill et al., argued soon after Holmes arrived on the SJC and
decided in November 1883, two defendants, Churchill and Whittemore, were prosecuted
under a criminal statute prohibiting keeping and maintaining a tenement used for the
illegal sale of liquor. Whittemore had been employed as a salesperson, and Churchill had
rented the tenement to Whittemore™s employer. The question regarding Whittemore was
whether, as a sales employee, he had participated in “keeping and maintaining” the place.
The prosecution argued that sales in the presence of the employer, whose guilt was clear,
aided the latter in keeping the tenement. “But so do purchases,” wrote Holmes, and they
had already been ruled exempt from criminal liability:
The distinction between acts which amount to maintaining the nuisance, and those which
do not, is one of degree. We do not think that the misdemeanor of unlawfully selling,
committed by a servant, can be said as a matter of law to amount to maintaining a
nuisance, unless he has assumed a temporary control of the premises, or in some other
way emerged from his subordinate position to aid directly in maintaining it. This limit
seems to be indicated by the case upon which the Massachusetts decisions are founded.
And none of our cases have gone further than to leave the general question to the jury,
whether the defendant aided in keeping the tenement, when it appeared that he did so
by exercising some form of control. (citations omitted)
136 Mass. 148, 151 (1883). Here can be found all of the main elements of Holmes™s
common law model, as set forth in the 1873 article, at work in a statutory context: the
existence of opposing lines of precedent, one establishing the reach of statutory lan-
guage, the other de¬ning a limit to the kinds of conduct that would constitute aiding in
the maintenance of the tenement. The case of Whittemore appears to fall somewhere
between, obliging the court to mark a point on the line. Moreover, Holmes remarks that
“none of our cases have gone further than leaving the general question to the jury.” Leav-
ing the general question refers to the fact that in prior cases, after all the evidence had
been admitted concerning the employee™s sales of liquor in the tenement, the jury would
be permitted to decide for themselves whether such evidence constituted “maintenance.”
No rule governing purely sales employees, such as Whittemore, had yet been arrived at.
The case demonstrates that, for Holmes, statutes could indeed leave questions open in
virtually the same manner as the common law, for resolution in a parallel way.
Common Law Constitutionalism 141

doctrine, with special rules of application. It had not yet become the fer-
tile source of jurisdiction for so many areas of heated public controversy.
In retrospect, harbingers of such a development were already appearing
in decisions under the due process clauses of the Fifth and Fourteenth
Amendments.
Provisions limiting government power existed in many state constitu-
tions, including Massachusetts (“no part of the property of any individual
can, with justice, be taken from him, or applied to public uses, without
his own consent or that of the representative body of the people . . . and
whenever the public exigencies require that the property of an individ-
ual should be appropriated to public uses, he shall receive a reasonable
compensation therefore”8 ). Although constitutional challenges to state
statutes were rare, Holmes had occasion as a state judge to interpret such
language as early as 1886. In his second due process decision, Rideout v.
Knox, which involved the constitutionality of regulating the height of a
private fence, Holmes noted that

difference of degree is one of the distinctions by which the right of the Legislature
to exercise the police power is determined. Some small limitations of previously
existing rights incident to property may be imposed for the sake of preventing
a manifest evil; large ones could not be, except by the exercise of the right of
eminent domain.9

This observation contains clear elements of the common law method.
In 1900, with an increase in the number of constitutional challenges to
public economic regulation, we may ¬nd evidence of the line-drawing
analogy applied to due process cases. In Lincoln v. Dore, Holmes discussed
two earlier due process decisions10 in the following terms:

The distinction of constitutional law must be pretty technical if taking a man™s
money is unlawful in the latter case and is not equally so in the former. It may be
that the line between special and general bene¬ts is ¬xed by a somewhat rough
estimate of differences. But all legal lines are more or less arbitrary as to the
precise place of their incidence, although the distinctions of which they are the
inevitable outcome are plain and undeniable.11

Some years later, as a United States Supreme Court Justice, Holmes
would in Hudson County Water Co. v. McCarter describe the process of

8 Article 10 of the 1780 Massachusetts Constitution.
9 148 Mass. 368, 372“73, 19 NE 390, 392 (1889).
10 Harvard College v. Boston, 104 Mass 470 (1870); Sears v. Boston 173 Mass 71; 53 NE 138
(1899).

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