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Holmes joined the court in overruling state laws even on particular

33 Id.
34 Pennsylvania Coal Co. v. Mahon, 260 U.S. at 413.
35 Bork, The Tempting of America, 45, quoted in Michael J. Phillips, “The Substantive Due
Process Decisions of Mr. Justice Holmes,” 36 American Business Law Journal at 437.
Common Law Constitutionalism 151

contract grounds.36 The difference between Otis and Lochner is that Jus-
tice Peckham™s opinion absolutizes free contract, voicing his view that
the New York law was “passed for other motives,” opening the door to
regulation extending to “bankers, brokers, lawyers, real estate, and many
other kinds of business, aided by many clerks, messengers, and other
employees.” Peckham, in effect, ignored that constitutional liability could
turn on matters of degree, and applied a subjective test to ¬nd the law
unreasonable. As in other dissents, Holmes would insist that the test be
objective, and invoked a community standard.37
All this is rooted in the early common law research. Today the notion
that a judge in any jurisdiction should explicitly apply principles of
common law to a state or the federal constitution would be shocking.
Yet the remark in Hudson County Water Co. v. McCarter, taking rights as
matters of degree, describes Holmes™s method concisely.38 The com-
ment illustrates line drawing at work in a constitutional context: even
constitutional rights, while declaring themselves absolute, are limited

36 The common assumption that the Supreme Court was dominated by laissez-faire con-
servatives wielding the Fourteenth Amendment to favor business interests overlooks the
fact that the majority of state regulatory laws challenged under the Fourteenth Amend-
ment were actually upheld by the notorious “Lochner Court”; the number of overrul-
ings is generally in¬‚ated. Michael J. Phillips, “The Substantive Due Process Decisions of
Mr. Justice Holmes,” 441. As Howard Gillman noted in 1993, the court™s motivation
in overruling many state laws was less a bias in favor of business than antipathy to
what the justices considered “class” or “partial” legislation, laws that promoted narrow
interests over the general welfare, which Holmes apparently shared in joining such
decisions. Howard Gillman, The Constitution Beseiged: The Rise and Demise of Lochner Era
Police Powers Jurisprudence (Durham, N.C., and London: Duke University Press, 1993).
Notwithstanding his dissent in Lochner, Adkins, Adair, and other now celebrated instances,
Holmes did not resist every overruling of state legislation by his Court on Fourteenth
Amendment grounds. Of 89 cases identi¬ed in 1999 by Michael J. Phillips in which
the Court used the due process clause to strike down substantive government action
while Holmes was a Justice, Holmes joined or wrote 62, principally involving utility
and rate regulation. Phillips, “The Substantive Due Process Decisions of Mr. Justice
Holmes,” 461.
In these cases Holmes appears to have been willing to engage in “marking points on
the line”: of 32 cases in which the Court during his tenure overturned rate orders against
such due process plaintiffs as railroads and utilities, he joined all but ¬ve. Id., 456. Of
the ¬ve dissents, he wrote only one, City of Denver v. Denver Union Water Co., dissenting on
technical legal grounds. 246 U.S. 178, 195“98 (1918). As during his days on the SJC in
rulings under the takings clause, he saw his duty as contributing to individual determi-
nations of whether a state action against private property was con¬scatory in violation
of the constitutionally protected right.
37 Coppage v. Kansas, 236 U.S. 1, 27 (1914) (Holmes, dissenting), and Schlesinger v. Wisconsin,
270 U.S. 230, 241 (1926) (Holmes, dissenting).
38 Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908).
Holmes, Legal Theory, and Judicial Restraint
152

by contrary principles of policy, which may be found throughout the
law.39
For a few contemporary legal scholars, there is merit to the idea of
seeing a parallel between common law and interpretation of the Consti-
tution. David A. Strauss has written:

The common law method has not gained currency as a theoretical approach to
constitutional interpretation because it is not an approach we usually associate
with a written constitution, or indeed with codi¬ed law of any kind. But our written
constitution has, by now, become part of an evolutionary common law system,
and the common law “ rather than any model based on the interpretation of
codi¬ed law “ provides the best way to understand the practices of American
constitutional law.40

Comments such as this re¬‚ect a growing discomfort with treating the
U.S. Constitution purely as a text, even while so much of judicial practice

39 Some clari¬cation is required to address a criticism of Professor Patrick J. Kelley, who
claims that Holmes violated “the traditional understanding of our constitutional order”
because he failed to apply the principle that “legislative enactments . . . are deemed
invalid if judged to be inconsistent with the constitution.” The key word here is “judged.”
If, as most scholars assume, this is the exclusive prerogative of judges, then for Holmes
to imply common law limits to that prerogative is a fundamental error:

Holmes™s takings jurisprudence re¬‚ects a deep-seated discrepancy between Holmes™s
constitutional theory and the traditional understanding of our constitutional order,
which recognizes two fundamental principles as ordering norms. First, since the people
are sovereign, constitutional provisions, which formally express the will of the people,
have priority over legislative enactments, which are deemed invalid if judged to be incon-
sistent with the constitution. Second, the legislature in our system of separation of pow-
ers is a lawmaking body superior to the courts, so that statutes control over inconsistent
common-law precedent.” (Patrick J. Kelley, “Holmes™s Early Constitutional Law Theory
and Its Application in Takings Cases on the Massachusetts Supreme Judicial Court,”
18 S. Ill. U. L. J. 357, 415 (1994))

Drawing on various comments by Holmes on policy that I have discussed, Kelley
further claims that Holmes had a consequentialist theory of law in which social policy was
“the object and ground of all law,” including decisions under constitutional jurisdiction.
In other words, Kelley attributes to Holmes the view that “[c]onstitutional law is thus just
a subcategory of judge-made common law. Like all judge-made law, constitutional law
can only be justi¬ed by its social consequences for the community.” Id., 362“63, 364.
Kelley cites the 1872 book notice where Holmes ¬rst observes that “public policy
must determine where the line is to be drawn.” But as I have noted in chapter 8, this
must be read in the context of Holmes™s deference to community standards. Where
constitutional questions are raised in litigation regarding matters yet unsettled, judges
should refrain from implementing any ¬nal policy determination.
40 David A. Strauss, “Common Law Constitutional Interpretation,” 63 University of Chicago
Law Review 877“935 (1996).
Common Law Constitutionalism 153

and the growth of constitutional doctrine resembles the common law.
But Strauss holds a judge-oriented view of common law, relying only on
the text for a limiting balance, still vulnerable to the objections voiced by
Justice Scalia.
As the scholarly responses to Scalia™s attack on common law in A Matter
of Interpretation demonstrate, no clear idea exists today as to precisely what
“common law” means. Nor is there a general understanding as to why it
should be considered a legitimate alternative to the positivist tradition.
The roots of textualism are, if not grounded in analytical positivism, cer-
tainly closer to it than to common law. Professor Strauss concedes that the
text, and thus aspects of strict textualism in constitutional interpretation,
are important “ they act as a restraining force “ but he notes that “our
written constitution has, by now, become part of an evolutionary common
law system” (emphasis added).41
In the quali¬er Strauss suggests that the common law resemblance
of constitutional jurisprudence is a relatively recent development.
Preoccupation with the recent past obscures that Professor Corwin, in
“Due Process of Law before the Civil War” (1911), could trace this resem-
blance back into the eighteenth century, if not indeed to the Magna
Carta.42 Due process, the key term of the Fifth and Fourteenth Amend-
ments, is undeniably a common law concept.43 Something akin to com-
mon law reasoning might even be applied to the grounds on which Chief
Justice John Marshall drew to defend judicial review in the ¬rst place, even
while withholding its use, in Marbury v. Madison. At best, the framers deftly
or discreetly avoided, and hence left open, whether the Supreme Court
should have the ¬nal word on the constitutionality of legislation.44
The contemporary argument that the text governs is, we should recog-
nize, associated with the assumption that the Court governs. That, in turn,
is something that has been drawn gradually “ perhaps excessively “ out
of the document over a long period of time. Marshall™s notion of judicial

41 Id., 885.
42 Corwin, “Due Process of Law before the Civil War,” in Garvey and Mason, American
Constitutional History, 46.
43 Id.; Corwin, “The Basic Doctrine of American Constitutional Law,” in Garvey and Mason,
American Constitutional History, 25.
44 Larry D. Kramer observes that, in the national debate over adoption of the Constitution,
only a “smattering” of references to judicial review was available on which to base any kind
of judicial assessment of the constitutionality of legislation, and that the best assessment
of its meaning at the time was something well short of judicial supremacy “ that is, a ¬nal
judicial say in constitutional interpretation. Kramer, The People Themselves, 83.
Holmes, Legal Theory, and Judicial Restraint
154

review was actually a modest one, described by Larry Kramer as falling
well short of judicial determinacy or supremacy. His goal in Marbury v.
Madison was (in Kramer™s words) “to get judicial review into the record “
not to establish its existence, but to de¬‚ect an incipient movement to
delegitimate it.”45 In that sense Marshall had rather little to do with its
subsequent emergence as the powerful trump over state and federal leg-
islation.
“Original understanding,” as the new bellwether of judicial review, is
rendered more tenuous if there was no original understanding, whether
by intention, compromise, or even indecision, empowering the Supreme
Court to exercise such de¬nitive review at all. It may be useful as a starting
point for particular kinds of cases, as de¬ned in Bork™s The Tempting of
America.46 But its explanatory power seems limited to that, and by the fact
that it fails to question the assumption of conclusive judicial supremacy
in interpreting the Constitution as a ¬nal forum.
Original understanding is particularly hard-pressed to account for the
single path that has led to the greatest expansion of the Court™s most
controversial work: the use of the Fourteenth Amendment to decide sub-
stantive matters involving personal rights, such as privacy. The Fourteenth
Amendment was a post“Civil War enactment, moved by the immediate
concerns of that tumultuous time, such that looking to its original under-
standing, within that of the original Constitution or Bill of Rights, requires
already something of a leap.47
Questions regarding its scope arose later. By 1889, before the Court
had yet intruded into the realm of state economic regulation, the same
year that Professor Kent was ruminating fretfully that “jurisdiction exists
in all this class of cases,” a prize was awarded to an equally fretful graduate
of Harvard Law School for a paper entitled “The True Meaning of the
Term ˜Liberty™ in Those Clauses in the Federal and State Constitutions
which Protect ˜Life, Liberty, and Property™ ”:

One is obliged to ask why it should include thus much and no more. If it includes
the right to pursue any lawful trade, why should it not include the right to worship
in any lawful manner, to print or speak in any lawful manner? Possibly, if the point


45 Id., 124.
46 Bork, The Tempting of America, 162“63. See also Kalman, The Strange Career of Legal
Liberalism (New Haven: Yale University Press, 1996).
47 Originalists generally look to the original understanding of the Bill of Rights for the
language of the Fourteenth Amendment, which assumes without evidence that the 1868
amenders shared or adopted precisely the earlier understanding.
Common Law Constitutionalism 155

should arise, it would be held to include all the above liberties, although the writer
has not found any statements in the books to that effect.48

Thirty-¬ve years later, in Gitlow v. New York, where the Court upheld a
conviction of the publisher of The Left Wing Manifesto for advocacy of the
overthrow of organized government, Holmes would write in dissent:
The general principle of free speech, it seems to me, must be taken to be included
in the Fourteenth Amendment, in view of the scope that has been given to the
word “liberty” as there used, although perhaps it may be accepted with a somewhat
larger latitude of interpretation than is allowed to Congress by the sweeping
language that governs or ought to govern the laws of the United States.49

Seventeen years earlier, in the majority opinion in Patterson v. Colorado,
he had written, “We leave undecided the question whether there is to be
found in the Fourteenth Amendment a prohibition similar to that in the
First.”50
I recall this to give a sense of the distance traveled by the Court dur-
ing Holmes™s tenure, as well as its relation to the uncertain future seen
in 1889. The movement would accelerate before his retirement in 1932.
The previous year, in Near v. Minnesota, the Gitlow dissent became law, with
liberty of the press assimilated to the other liberties already protected.
Liberty of association would follow close behind in 1937 with De Jonge
v. Oregon. The protection of defendants in criminal cases would gather
steam in the late 1930s, including right to counsel (Powell v. Alabama),
exclusion of forced confessions (Brown v. Mississippi), and race discrimi-
nation in jury lists (Norris v. Alabama). Religious belief and exercise was
included in Cantwell v. Connecticut, in 1940. Also in the 1930s, the separate-
but-equal doctrine of Plessy v. Ferguson began to be gradually undermined
in decisions involving state higher education.51 All this came a full gener-
ation before Earl Warren arrived and took his controversial seat as Chief
Justice.
There is little light to be shed on these developments from strict tex-
tualism or any original understanding of the Reconstruction Congress
of 1866 that drafted the Fourteenth Amendment, or the states that

48 Charles A. Shattuck, “The True Meaning of the Term ˜Liberty™ in Those Clauses in the
Federal and State Constitutions which Protect ˜Life, Liberty, and Property,™” 4 Harv. L.
Rev. 265 (1891), cited in Freund, On Law and Justice, 5.
49 Gitlow v. New York, 268 U.S. 652, 672 (1925).
50 205 U.S. 454, 462 (1907).
51 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). Plessy is 163 U.S. 537 (1896); Near,
283 U.S. 697 (1931); De Jonge, 299 U.S. 353 (1937); Powell, 287 U.S. 45 (1932); Brown,
297 U.S. 278 (1936); Norris, 294 U.S. 587 (1935); Cantwell, 310 U.S. 296 (1940).
Holmes, Legal Theory, and Judicial Restraint
156

rati¬ed it.52 More helpful, I submit, is Paul Freund™s observation in
1963:
All of this movement and ferment, so obscure to the vision of 1889, re¬‚ected
a sensitivity to values that had emerged in the society and that were sharpened
by visible and powerful threats here and abroad. It is no accident, after all, that
during the tenure of [the ¬rst] Justice Roberts, which coincided with the rise
of totalitarian dictatorships, the Court found occasion to set aside the action
of Mayor Hague of Jersey City in handpicking the speakers permitted to use
the public square, the action of a Huey Long“dominated legislature of Louisiana
levying an oppressive tax on the big-city press, and the action of Governor Sterling
of Texas in declaring martial law in de¬ance of a federal court order.53

For Freund, much of the expansion of due process jurisprudence was
a response to world con¬‚ict and the implication of American consti-
tutional rights in the worldwide challenge to democracy.54 If Holmes
reconstructed the common law as a theory of public inquiry “ the ask-
ing of legally pertinent questions, however arising “ then this attitude
must color his approach to cases arising under the Constitution. The
Fourteenth Amendment, adopted for reasons profound but pertinent to
1868, has since repeatedly posed the ultimate question for a free demo-
cratic society, from generation to generation: whether controversial gov-
ernment actions are consistent with the protection against deprivation of
“life, liberty, or property without due process of law.”

52 See Paul Horowitz, “The Past Tense: The History of Crisis “ and the Crisis of History “
in Constitutional Theory,” 61 Albany L. Rev. 459 (1997).
53 Freund, On Law and Justice, 7.
54 On Law and Justice, 3“22. As this source re¬‚ects, Professor Freund™s in¬‚uence on my
account of the growth of Fourteenth Amendment jurisdiction has been considerable.
10

Holmes™s Theory in Retrospect




Controversies over Holmes linger, seventy-four years since his death. In
retrospect we gain insight into the work of an original thinker, but one
may wonder how long the settlement of Holmes™s reputation must take.
Not quite a half century ago, Paul Freund remarked:

In England until recently it was a tradition that living authors were not to be
cited as authority in judicial opinions. On one occasion the Lord Chief Justice,
despite the tradition, could not refrain from citing Professor Holdsworth™s History
of English Law, but when he did so he was careful to refer to Professor Holdsworth
as one “who is happily not an authority.” The reporter of decisions, in puzzling
over this passage, concluded that it must have been a slip of the pen, and so
when it was published it read “Professor Holdsworth who is unhappily not an
authority.”1

While among over two thousand opinions, in ¬fty years of judging, there
are ample matters for which Holmes is happily, as well as unhappily,
not an authority, I have bypassed much relevant criticism to suggest that
contemporary legal and political theory has something to gain from a
comprehensive reassessment. The Common Law has passed its 125th year,
still widely misunderstood.
Much hinges on the turn Holmes™s work took in 1876, examined in
chapter 6, after his early critical scholarship had developed a deep skep-
ticism of the project of analytical classi¬cation and an alternative rooted
in common law. Having debunked the prospects for a universal or fun-
damental legal classi¬cation offered by John Austin, and conceiving a
law without determinate boundaries in which no such essentialism was

1 Freund, On Law and Justice, 147.

157
Holmes, Legal Theory, and Judicial Restraint
158

to be found, he proposed the historical inevitability of evolution from
moral toward external standards of liability. This, a less frequent objec-
tion than his pronounced skepticism and tendency to glorify struggle,
has nevertheless diverted attention from the balance of his theory and
continues to bedevil his reputation. Holmes would apply the precept in
his Massachusetts judicial opinions, as Patrick J. Kelley has shown in some
detail.2 Kelley ¬nds a doctrinaire character in many instances, as well as
a rigidity in the results. Both he and G. Edward White have noted cases
where Holmes, despite his emphasis on the jury™s role in informing the
court of “common experience,” refused to let the jury determine and
apply the relevant community standards.3
Holmes™s overall vision of the common law might have better with-
stood the test of time as a more moderate statement, such as given by Sir
Frederick Pollock in 1900:

One of the most characteristic and important features of the modern Common
Law is the manner in which we ¬x the measure of legal duties and responsibili-
ties, where not otherwise speci¬ed, by reference to a reasonable man™s caution,
foresight, or expectation, ascertained in the ¬rst instance by the common sense
of juries, and gradually consolidated into judicial rules of law.4

For Pollock (who, we may recall, published a parallel critique of Austin
in 1872 that prompted Holmes to get his own developing views into print
the same year5 ) the gradual speci¬cation of rules through the test of
common prudence was not connected with the necessary removal of all
moral (in the sense of subjective) standards, and it was not the essential
principle of Anglo-American law, just “one of the most characteristic and
important.” In a looser formulation, we ¬nd Postema concluding recently
that “the law is inclined only to look at behavior not on motivation.”6 For
Holmes the general theory implied a uniform evolution and was sweeping
and rigorous. It was the main thesis of the book that would launch his
career, and the projected basis for the ongoing development of English
and American law.
It required a stretch to demonstrate that subjective tests of legal liabil-
ity were always reducible to an objective standard, a fact that has proved

2 Kelley, “Holmes on the Supreme Judicial Court: The Theorist as Judge,” 283“99.
3 E.g., id. at 292“97 (Holmes interjecting his own view of community standards in cases
involving res ipsa loquitur and speci¬cation). See also White, Justice Oliver Wendell Holmes,
381.
4 Sir Frederick Pollock, “History of the Law of Nature,” in Essays in the Law (London:
Macmillan,1922), 69.
5 See chapter 5, n. 34, supra.
6 Postema, “Philosophy of the Common Law,” 610.
Holmes™s Theory in Retrospect 159

inconsistent with the very local ¬‚exibility within the system that his over-
all conception recognizes. In effect, Holmes resisted the conclusion that
locally derived standards, re¬‚ected as they are in a decentralized adju-
dicative framework, might insist on recognizing individual subjectivity in
speci¬c areas of law, through some approximation of an actual mental
state or attitude.7
Although the general theory (and his judicial insistence on it) could
have bene¬ted from a larger dose of Holmes™s own skepticism, part of
the problem is semantic. Holmes never adequately addressed the uneasy
relationship between ancient liability based on vengeance and a con-
temporary understanding of the term “moral.” This confusion, between
morality and subjectivity, would vex him in dealing with persistent exam-
ples of subjectively based liability such as libel and slander, and it has
muddled his position with respect to analytical positivism. Like the ghost
of Sir Henry Maine, an earlier universal evolutionist, the ghost of John
Austin must share responsibility. Austin had focused attention upon a
prominent feature of mature Anglo-American legal systems, which he
misperceived as an innate separation of law and morals. Holmes would,
in a sense, build upon both Austin and Maine by reconceiving the separa-
tion as an objectivization of liability, while turning it into an evolutionary
end-state, not unlike Maine™s notion of a historic shift of legal relations
based on “status” to “contract.”8
Holmes™s accomplishment was more than simply following a path
away from what James Herget has called the “expository” toward the
“evolutionary” paradigm for law.9 His immersion in Austin™s exposition,
as well as that of Chancellor Kent, obliged him to construct an alternative
understanding of the ubiquitous tendency toward classi¬cation, and an
explanatory mechanism for change within a putatively consistent and dis-
positive system. This focus on change, on the nature and weight of prece-
dent, the role of juries and judges, the standard of prudence in original


7 Were he following the same line of inquiry today, Holmes would ¬nd a process that is
messier, more divergent, and riddled with specialized legislative and administrative rules,
even if still involving elements of successive approximation in the adjudicative process,
not unlike what he had pictured in the early 1870s. Professor Atiyah in 1981 credited
Holmes for the radical insight that juries participate in determining legal standards. It
was his notion that “what commonly was called a question of ˜fact™ in a negligence action
involved not only issues of pure fact but normative issues as well; amazingly, this was ¬rst
acknowledged by English Courts only in 1955.” Atiyah, “The Legacy of Holmes through
English Eyes,” in Holmes and the Common Law: A Century Later, 27“73.
8 Henry Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to
Modern Ideas (New York: Henry Holt, 1885).
9 Herget, American Jurisprudence 1870“1970, 29.

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