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9 “Given a suf¬cient hardihood of purpose at the rack of exegesis, and any document, no
matter what its fortitude, will eventually give forth the meaning required of it.” Edward S.
Corwin, “The Supreme Court and the Fourteenth Amendment,” in American Constitutional
History: Essays by Edward S. Corwin, ed. Gerald Garvey and Alpheus T. Mason (New York,
Evanston, and London: Harper & Row, 1964), 68.
Holmes, Legal Theory, and Judicial Restraint
4

means all) state regulatory legislation for over a decade, as a misreading
not of principle but of timing? Holmes had the reputation then, as now,
of a deep but dimly visible foundation beneath his ¬‚uent utterances.
The invisibility of the ostensible ground beneath his frequently skeptical
remarks has left his skepticism open to characterization as cynicism.10
This impression is buttressed by a lifelong tendency to glorify struggle, in
a way that often seemed “childish” to his friend William James.11 The role
of con¬‚ict is easily oversimpli¬ed in interpretations of Holmes; though
he had a personal side, and experiences as a soldier, to reinforce the
impression, a cynical deference to power has on careful examination
almost nothing to do with his judicial philosophy.
My purpose is to explore the background to Holmes™s 1913 comment,
to focus on its derivation in Holmes™s development as a scholar and the-
orist, and to consider its intellectual contours, how it ¬ts into a theory
of law and compares with other leading theories “ both historically and
in a contemporary context, especially as regards the leading theories of
this past century, those expounded by H. L. A. Hart, Joseph Raz, Ronald
Dworkin, and their contemporary critics and followers.
First I note a connection between Holmes™s 1913 comment and three
writers and jurists whose thoughts and lives overlapped with his: James
Bradley Thayer, lawyer, scholar, and Harvard law professor through whom
the younger Holmes gained editorship of Kent™s Commentaries on American
Law, a move that would profoundly affect his thinking; Felix Frankfurter,
the Harvard law professor who supplied Justice Holmes with his per-
sonal secretaries and later became a Supreme Court Justice himself; and
Learned Hand, by all accounts “the greatest judge never appointed to the
Supreme Court,” who venerated Holmes and seems to have in¬‚uenced
his attitude toward free speech in time of war.12
Characterizing the spirit of judicial restraint, Thayer would write in
1893: “The safe and permanent road towards reform is that of impress-
ing upon our people a far stronger sense than they have of the great
range of possible harm and evil that our system leaves open, and must
leave open, to the legislatures, and the clear limits of judicial power; so
that responsibility may be brought sharply home where it belongs.” This
runs counter to the common acceptance of ¬nal judicial interpretations

10 E.g., Alschuler, Law without Values.
11 William James to Frances R. Morse, April 12, 1900, in Ignas K. Skrupskelis and Elizabeth
M. Berkeley, eds., The Correspondence of William James, vol. 9 (Charlottesville and London:
University Press of Virginia, 2001), 184.
12 See Kellogg, “Learned Hand and the Great Train Ride,” 56 American Scholar 471 (1987).
A Time for Law 5

of the Constitution. There is a renewed concern among legal scholars
that the public, in our litigious society, is being left out of the shaping
of constitutional law and hence of our most fundamental rights. Mark
Tushnet, in his book Taking the Constitution Away from the Courts (1999),
and Larry D. Kramer, in The People Themselves: Popular Constitutionalism
and Judicial Review (2004), have lately brought this concern back to the
forefront.13
The sentiment, or one very like it, goes back to Thayer (1901):

[T]here has developed a vast and growing increase of judicial interference with
legislation. This is a very different state of things from what our fathers contem-
plated, a century or more ago, in framing the new system. . . . Great, and indeed,
inestimable as are the advantages in a popular government of this conservative
in¬‚uence, “ the power of the judiciary to disregard unconstitutional legislation,
it should be remembered that the exercise of it, even when unavoidable, is always
attended with a serious evil, namely, that the correction of legislative mistakes
comes from the outside, and the people thus lose the political experience, and
the moral education and stimulus that come from ¬ghting the question out in
the ordinary way, and correcting their own errors.14

Citing this passage in a dissenting opinion, the famous 1943 ¬‚ag salute
case, Felix Frankfurter at the height of World War II opposed the court
majority in its decision to reinstate a young Jehovah™s Witness expelled
from school for refusing on religious grounds to participate in the Pledge
of Allegiance. “The reason why from the beginning even the narrow
judicial authority to nullify legislation has been viewed with a jealous eye
is that it serves to prevent the full play of the democratic process.” We
can imagine the outcry if the current Court were to stay its hand in such
a case.15
Even more extreme, consider Learned Hand, who in the Oliver
Wendell Holmes Lectures at Harvard in 1958 (funded by the Holmes
Devise, created after the childless Holmes willed the balance of his estate
to the federal government), caused an academic uproar by denounc-
ing the Bill of Rights as grounds for overturning legislation, likening
such Supreme Court jurisdiction to the ordination of a council of moral
censors: “For myself it would be most irksome to be ruled by a bevy of

13 Mark Tushnet, Taking the Constitution away from the Courts (Princeton: Princeton University
Press, 1999), and Larry D. Kramer, The People Themselves: Popular Constitutionalism and
Judicial Review (Oxford: Oxford University Press, 2004).
14 James B. Thayer, John Marshall (Boston: Houghton Mif¬‚in, 1901), 106.
15 West Virginia State Board of Education v. Barnett, 319 U.S. 624, 667“71 (1943) (Frankfurter,
dissenting).
Holmes, Legal Theory, and Judicial Restraint
6

Platonic Guardians, even if I knew how to choose them, which I most
assuredly do not. If they were in charge, I should miss the stimulus of
living in a society where I have, at least theoretically, some part in the
direction of public affairs.”16
Insofar as there is a connection with Holmes, the notion of timing in
judicial self-restraint is connected with the preservation of democratic
debate, of the popular grounding of democratic institutions. What do
we know about this reason, and what are its contours? How may it be
understood as a consistent, coherent theory of law “ if a theory of law
at all? The popular constraint on judges is the claim of a dominant text,
illuminated only by its putative “original understanding.” But we are in a
skeptical moment just now; textualism as a judicial guide to ¬nal consti-
tutional meaning cuts both ways, and can result no less in the exercise of
a constitutional litmus test.
The two competing notions, that of an authoritative law that always
contains the right answer, and that of a law of timing, of consensus,
are radically opposed. The notion of a judicial system that somewhere
holds a right or better answer for every legal question is found in Ronald
Dworkin™s Taking Rights Seriously, where if necessary the judge must turn to
principles and rights. Here we encounter Holmes™s second point above:
“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.”17
What guidance can Holmes give us? Perhaps his notion here, though
sounding conservative, may hide a licentious set of assumptions “ that
there is no legal answer, that the justices simply hoist their ¬ngers to
the wind. They sit down to assess the state of the national conscience,
whatever that means, and decide whether the time is right to implement
the enduring principles of the United States Constitution as they see
them.
This book addresses a threefold subject: the intricate intellectual path
of Justice Holmes, his relation to contemporary legal theory, and the
controversial subject of judicial restraint. Oliver Wendell Holmes, Jr., was
the rare son who could eclipse a famous and dominant father, an acutely

16 Learned Hand, The Bill of Rights (Cambridge, Mass.: Harvard University Press, 1958), 73.
17 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press,
1977); Holmes, supra n. 1.
A Time for Law 7

ambitious workaholic without children, a prodigious scholar who mas-
tered in his time the history, theory, and practice of American law (a feat
perhaps never again to be matched), judge for ¬fty years on the high-
est courts of Massachusetts and the United States. He has cast a long
shadow upon the judges and scholars of our time “ over a century now
since he took a seat at sixty-one on the highest court of the land. Yet
Holmes scholarship has been disorderly, even schizophrenic. His in¬‚u-
ence is undoubted, but its source ill-understood, giving rise to cycles of
severe criticism. We are in one now.
Much of this criticism is responsible and illuminating. Once an icon,
Holmes has been humanized. Where it falls short is in understanding the
sources and development of his thinking. Confusion is understandable,
given his unusual path and the subtlety of the original position, estab-
lished early in his career. Before trying to characterize it, and where it
might enlighten us, I give an example that demonstrates both the prob-
lem of understanding Holmes and its potential.
Two eminent scholars, Louis Kaplow and Steven Shavell, have recently
published a controversial book about law entitled Fairness versus Welfare
(2002), addressing a fundamental question about law. To what degree
should we consider the impact on general welfare, as opposed to notions
of fairness, in deciding legal matters? The authors take an extreme posi-
tion against the advocates of fairness; they claim, and attempt to demon-
strate, that any policy pursued on grounds other than social welfare “
including fairness among the parties in the case “ may end up making
everyone worse off.18
Holmes, as many scholars have noted, often sounded a similar view
in such comments as “I think that the judges themselves have failed
adequately to recognize their duty of weighing considerations of social
advantage” and “Moral predilections must not be allowed to in¬‚uence
our minds in settling legal distinctions.”19 Such comments sounded rad-
ical in their day and have maintained a ring of contemporary relevance.
Did Holmes adopt a position similar to Kaplow and Shavell, as has often
been suggested? That would be inconsistent with the distinctive position
that is captured in his 1913 speech. The law is behind the times; while


18 Louis Kaplow and Steven Shavell, Fairness versus Welfare (Cambridge, Mass.: Harvard
University Press, 2002).
19 Holmes, “The Path of the Law,” in Collected Legal Papers (New York: Harcourt Brace,
1920), 184; The Common Law (Boston: Little, Brown, 1881), 118.
Holmes, Legal Theory, and Judicial Restraint
8

convictions still clash, they are not to be preferred; judges should avoid
reading their own convictions into the law. There is such a thing as “a
time for law.”
While these three comments, from widely separated decades, may at
¬rst seem incongruous, there are hints of consistency. It is not morals or
fairness per se that Holmes eschews in 1881, writing his major treatise
The Common Law. It is moral predilections. The notion of deep uncertainty,
of a process akin to a search, is embedded in his thinking about law. A
search for what? Where does this idea come from, and what is it like?
Nor indeed is it social advantage, or perhaps I should say the matrices of
economic advantage or disadvantage presumed discoverable by Kaplow
and Shavell, that he advocates in 1897 (in “The Path of the Law,” his best-
known essay). Rather, it is a recognition that he urges, a form of honesty:
the judges “have failed adequately to recognize” their involvement in
this aspect of the search, however murky the waters. There are inklings
here of a complex venture, with hidden perils lurking to shipwreck the
unready, rather than a socio-economic calculus.
Judicial restraint “ a phrase hardly common in Holmes™s time “ is in
his case associated with a theory of the law as a process of critical inquiry,
a dynamic rather than static enterprise, but one involving a high degree
of caution, of perspective, of learning. Holmes as a judge was not always
a paragon of such restraint. He had a powerful mind and a sophisticated
set of views “ indeed a theory of history “ that he sought constantly to
bully past his colleagues on the Supreme Judicial Court of Massachusetts
and write into the law. In 1902 he would arrive on a Supreme Court of
the United States that was embroiled in controversy not unlike our own,
over judicial invocation of the due process clause of the Constitution20 to
invalidate state social welfare legislation. Here his fame would be made
in several ringing dissents, although his actual record is not as pure as
the dissents might suggest; he did not resist all, or even most, substantive
interventions under the due process clause.
The search for what lies beneath this unique vision of judicial restraint,
unlike anything that can be found among the writings of judges or schol-
ars today, takes us back to the earlier days of intensive study and con-
versation following Holmes™s return to Cambridge and Boston from the
Union Army in 1863. I will connect him more clearly with the in¬‚uences


“No state shall . . . deprive any citizen of life, liberty, or property, without due process of
20

law. . . .” United States Constitution, Amendment XIV, sec. 1 (1868). A similar provision
in Amendment V (1789) constrains the federal government.
A Time for Law 9

of this period, from both New England and abroad, establishing how his
legal conception developed and how it might ¬t into a larger picture that
is usefully comprehensible today.
The slogan “popular constitutionalism” has emerged in the recent writ-
ings of certain legal scholars. I already mentioned Tushnet and Kramer,
reacting to the fact that virtually all contemporary debate over judicial
review of legislation, liberal or conservative, accepts the assumption of
judicial supremacy, or more precisely judicial “determinism.” That is,
the context of all contemporary argument over judicial activism versus
restraint is one in which no real alternative exists to the courts ¬nally
deciding, one way or the other, under one sweeping constitutional prin-
ciple or another, the outcome of controversies affecting fundamental
values. Hence the battle comes down to membership on the courts them-
selves. This has led some liberals to advocate what used to be conser-
vative political tools for controlling federal court nominations, lest they
become vested with politically approved nominees, such as congressional
¬libusters of controversial nominations or stripping the federal courts of
controversial areas of jurisdiction.
There is revelation here “ the notion that judicial determinism is
embedded and will not yield easily to argument “ but it is not enough
revelation to work a revolution. Whether such political measures would
be effective is not within my purview “ but rather the question of whether
there is any alternative comprehensive context within which judicial
determinism is not accepted unquestioningly, indeed one in which it is
convincingly overthrown. A revolution might then begin with new under-
standing and belief, leading to a new standard for both public and pro-
fessional conduct.
2

Playing King
Connections and Misconceptions




What intellectual fun all of this is! It explains why ¬rst-year law school is
so exhilarating, because it consists of playing common-law judge, which in
turn consists of playing king “ devising, out of the brilliance of one™s own
mind, those laws that ought to govern mankind. How exciting! And no
wonder so many law students, having drunk at this intoxicating well, aspire
for the rest of their lives to be judges.
Supreme Court Justice Antonin Scalia, A Matter of Interpretation (1997)



On a December day in 1882, Oliver Wendell Holmes, Jr., at forty-one, was
at lunch in Cambridge, Massachusetts, with a colleague on the faculty
of Harvard Law School. He had recently published a book, The Common
Law. It was the culmination of ¬fteen years of effort, including numerous
scholarly essays and a grueling revision of the leading American legal
encyclopedia, Kent™s Commentaries on American Law. His scholarship had
been mixed with work as a private lawyer, half of them bachelor years
of evening and weekend conversation with friends such as the James
brothers, William and Henry, and a long visit to England in 1866. His
wedding to Fanny Dixwell in June 1872 was curtly noted along with new
editorial responsibilities in a diary devoted mainly to his reading and
writing. (“June 17. Married[.] sole editor of Law Rev. July no. et seq.”).
The book had gained the serious attention Holmes longed for. It had
received highly respectful reviews by American journals, albeit traced
with caution. A favorable review by the British legal historian Frederick
Pollock, whom he had met on a visit to England with Fanny in 1874, as
well as a strong but conditional endorsement by the prominent English
legal scholar Albert Venn Dicey, would soon appear. Unhappy with private
10
Playing King 11

practice in Boston, already unsuccessful in obtaining a judicial appoint-
ment, he had accepted a professorship endowed on his behalf by the
Weld family at the behest of James B. Thayer. To Thayer™s considerable
distress, Holmes would teach for only two months.1
His lunch on Friday, December 8, 1882, and his academic career, was
abruptly cut short by George Shattuck, a recent law partner, who had
Fanny Holmes in a carriage waiting to rush him to the governor™s of¬ce
in Boston. The retiring Republican John Long had been persuaded by
Shattuck and others to appoint Holmes to an unexpected opening on
the Supreme Judicial Court of Massachusetts. Formal acceptance of the
nomination would have to reach the Governor™s Council by three that
afternoon. An anxious ride through what is now East Cambridge and
across the Charles River was all that stood between the forty-one-year-old
lawyer-scholar and his forty-nine-year judicial career.2
Several components frame my account of Holmes. One is the vain-
glorious self-regard he carried from his days of scholarship to the Mas-
sachusetts high court, where, according to Patrick J. Kelley, he forced
an unorthodox legal theory into the law like the king in Justice Scalia™s
comment above.3 This characteristic would repeatedly haunt him, in
the regard of his oldest friends, in the way he framed and argued his
book and in its effect on his language, the pithy, rhetorical facility with
words and ideas, shared with his famous doctor-poet father but formally
dense and informally often inclined to the shocking one-line closer. Along
with his celebration of struggle and con¬‚ict, it overshadows his reputation
today.
Another less-noted problem is the derivation and design of the theory
itself, in¬‚uenced by diverse sources, the English scholars John Austin and
Henry Maine, as well as American literary and philosophical friends, such
as the Jameses, Chauncey Wright, Nicholas St. John Green, and Charles
S. Peirce, and the unique and changing literary, theological, and philo-
sophical attitudes of nineteenth-century Cambridge and the continuing
in¬‚uence of leading ¬gures of the Scottish Enlightenment. Evidence of
in¬‚uence is circumstantial; Holmes dispensed little credit.4

1 Novick, Honorable Justice, 164“5; White, Justice Oliver Wendell Holmes, 182“191.
2 Id.
3 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton
University Press, 1997), 7.
4 There are several excellent references for the early and formative intellectual in¬‚uences
on Holmes. He grew up in a family prominent among the Cambridge and Boston intel-
ligensia, with family friends including Ralph Waldo Emerson and the William James
Holmes, Legal Theory, and Judicial Restraint
12

Still another is the unsettled place of his theory in the also unsettled
context of legal theory today, suggested in the passage above wherein
Scalia rejects the common law tradition as devoid of intellectual legiti-
macy. All this is linked to the dubious place of Holmes™s The Common Law,
for reasons that go back to the comments of Dicey, who called it “the most
original work of legal speculation which has appeared in English since
the publication of Sir Henry Maine™s Ancient Law,” even while ¬nding his
“attempt to unite the historical with the analytical method” at the root of
a “doubt whether Mr. Holmes is contending that a given principle is in
conformity with the decisions to be found in the year-books, or that it is
in conformity with the dictates of right reason, or expediency.”5
Misunderstanding of the main thrust of his research and writing, com-
bined with his frequent celebration of soldiering and social struggle, has
given rise to Holmes™s reputation as a power-oriented amoral relativist,
recently elaborated at book length by Albert W. Alschuler. It must be
addressed if Holmes™s contribution is to be recognized as more than a
clever but quirky nineteenth-century comment on Thomas Hobbes, the
still-in¬‚uential seventeenth-century philosopher of law and the modern
state.
In a commentary in the New York Times, “The Competing Visions of the
Role of the Court,” the Times™s Supreme Court editor Linda Greenhouse
observed that the main dividing line on the late Rhenquist Court has
been between textualists, led by Justice Antonin Scalia, and contextualists,
typi¬ed by Justice Stephen G. Breyer:


family. His Harvard education and associations make Bruce Kuklick™s The Rise of American
Philosophy: Cambridge, Massachusetts 1860“1930 (New Haven and London: Yale University
Press, 1977), detailing the role of both Harvard and the intelligensia in shaping con-
temporary attitudes, an important reference. Kuklick pays particular attention to the
in¬‚uence of non-university intellectuals, such as Chauncey Wright, and teachers, such
as Alford Professor of Philosophy Francis Bowen (who in¬‚uenced Holmes™s generation
even while ¬nding Holmes an occasionally obstreperous student “ see White, Justice Oliver
Wendell Holmes, 44, “ and who may have participated in the revived Metaphysical Club
in 1876), and emphasizes the profound and lasting Scottish in¬‚uence, as do Elizabeth
Flower and Murray G. Murphey in A History of Philosophy in America (New York: G. P. Put-
nam™s Sons, 1977).
Also helpful are H. S. Thayer, Meaning and Action: A Critical History of Pragmatism (Indi-
anapolis and New York: Bobbs-Merrill, 1977); Herbert W. Schneider, A History of American
Philosophy (New York: Liberal Arts Press, 1946); and Philip P. Wiener, Evolution and the
Founders of Pragmatism (Cambridge, Mass.: Harvard University Press, 1949).
5 Albert V. Dicey, “Holmes™s Common Law,” 55 The Spectator (Literary Supplement, June 3,
1882), reprinted in Saul Touster, “Holmes a Hundred Years Ago: The Common Law and
Legal Theory,” 10 Hofstra L. Rev. 673 (1982).
Playing King 13

For Justice Scalia, who focuses on text, language is supreme, and the court™s job
is to derive and apply rules from the words chosen by the Constitution™s framers
or a statute™s drafters. For Justice Breyer, who looks to context, language is only
a starting point to an inquiry in which a law™s purpose and a decision™s likely
consequences are the more important elements.6

Textualism has had many precursors, including the political slogan “strict
construction,” popular among conservatives in the Nixon era. It has come
into renewed prominence, re¬‚ected in the publication of Justice Scalia™s
A Matter of Interpretation, in 1997. This consisted of his 1996 Tanner
Lectures at the Center for Human Values at Princeton University, with
four critical commentaries by distinguished scholars: historian Gordon
S. Wood, law professors Laurence Tribe and Mary Ann Glendon, and the
renowned American legal philosopher Ronald Dworkin.
In that remarkable essay, Scalia derides the common law, notwithstand-
ing its prominence within the American law school, as a license for judges
to do as they please. He anoints a strict textualism as the only sure restraint
on freewheeling judges. Not one of the commentators has much in par-

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