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the statute itself, as there would be no prior cases deciding what conduct
was suf¬cient to ful¬ll the legislative standard. Scalia associates all com-
mon law with a rank form of subjective instrumentalism, leaving no room
for the process of examining prior interpretations of legal concepts that
Holmes describes in considerable and compelling detail.32
Such is the predicament of the modern judge and lawyer, absent a bet-
ter conception of common law than that found in the wake of analytical
positivism. Reasoning from precedent is taught at all American law

31 Id., 23, citing Holmes, “The Theory of Legal Interpretation,” in Collected Legal Papers,
32 David A. Strauss notes that the notion that the text of the Constitution is an effective limit
on judges is plausible only if one assumes a background of highly developed precedent.
Strauss, “Common Law Constitutional Interpretation,” 907“25.
Holmes™s Theory in Retrospect 169

schools and used throughout the judicial system, but it has hardly more
intellectual justi¬cation than the stability it might provide through the
time-honored practice of stare decisis.33 Even stare decisis is portrayed by
Scalia as undermining the validity of majoritarian government: reasoning
from precedents “would be an unquali¬ed good, were it not for a trend in
government that has developed in recent centuries, called democracy.”34
The will of the majority is embodied in a ¬nal authoritative text or not
at all. With this stance the foundation for stare decisis is virtually incoher-
ent, grounded in sheer tradition, but violating a putatively fundamental
democratic principle.
When the discussion is brought from the abstract to the particular,
in the actual world of judging, can any text qua text, any discrete form
of words, handle the entire responsibility? The Churchill case affords a
glimpse of the fact that there exists a diversity of problems in the applica-
tion of legal language. In proscribing the “maintenance” of a tenement
for illegal sale of alcohol, the legislature had expressed its intent as com-
prehensively and explicitly as possible. The language itself does not call
for legislative de¬nition of the nature of activity constituting maintenance.
The legislature may not anticipate every situation to which a lawyer or
prosecutor might apply its enactments.35

33 A leading contemporary reference, Corpus Juris Secundum, says of stare decisis, “The rule
is founded on considerations of expediency and sound principles of public policy, to
preserve the harmony and stability of the law. . . . The rule represents an element of con-
tinuity in law and is rooted in the psychologic need to satisfy reasonable expectations, but
it is a principle of policy and not a mechanical formula of adherence to the latest deci-
sion however recent and questionable when such adherence involves collision with prior
doctrine more embracing in scope, intrinsically sounder, and veri¬ed by experience.”
21 C.J.S., sec. 140, 164“65 (1990) (citations omitted).
34 Scalia, A Matter of Interpretation, 9.
35 See Levi, An Introduction to Legal Reasoning, 27“31:

It is customary to think of case-law reasoning as inductive and the application of statutes
as deductive.

The legislature may have had a particular case uppermost in mind, but it has spo-
ken in general terms. . . . The speci¬cation of particular instances indicates that similar
but unmentioned instances are not to be included. But the speci¬cation of particular
instances, when in addition a word of a general category is used, may be the indication
that other like instances are also intended; hence the ejusdem generis rule.
[T]he words of advice [of Justice Reed in United States v. American Trucking Ass™n, 310
U.S. 534, 542 (1940)] force one to re-examine whether there is any difference between
case law and statutory interpretation. It is not enough to show that the words used by the
legislature have some meaning. Concepts created by case law also have some meaning,
but the meaning is ambiguous. It is not clear how wide or narrow the scope is to be.
Can it be said that the words used by the legislature have any more meaning than that,
Holmes, Legal Theory, and Judicial Restraint

The question is, then, whether a legislative or constitutional text is a
comprehensive embodiment of the common will, or whether that will
must be further understood to include the experience of the same com-
munity in the past and future, through relevant formal and public inquiry.
Holmes™s view seems to be that such words are the words of an ongoing
community, and as formed over time in the legal process, they cannot be
fully understood in insulation from their history of interpretation. Evalu-
ating this insight, so central to Holmes™s jurisprudence, seems foreclosed
by the context of contemporary debate. Absolute textualism is more than
a mere intellectual trend, a conservative ideology, or a blind commitment.
It is informed by a belief concerning the nature of law, such that if demo-
cratic sourcing works only through legislative enactment, law must then
remain discrete from its customary source, with a strict and identi¬able
boundary. By privileging the legal text, it is assumed that an identi¬able
entity called “law” has alone produced the outcome.

or is there the same ambiguity? One important difference can be noted immediately.
Where case law is considered, there is a conscious realignment of cases; the problem is
not the intention of the prior judge. But with a statute the reference is to the kind of
things intended by the legislature. All concepts suggest, but case-law concepts can be
Regarding the legislative ambiguity, Levi observes:
This is not the result of inadequate draftsmanship, as is frequently urged. Matters are
not decided until they have to be. . . . If the legislature were a court, it would not decide
the precise effect until a speci¬c fact situation arose demanding an answer. . . . Despite
much gospel to the contrary, a legislature is not a fact-¬nding body. . . . The members of
the legislative body will be talking about different things; they cannot force each other
to accept even a hypothetical set of facts. The result is that even in a non controversial
atmosphere just exactly what has been decided will not be clear.


I have argued that an overall consistency may be found throughout
Holmes™s work, in tracing his path from the earlier critical to the later con-
structive stage of his scholarship, and on into his judicial career. Although
his place in American jurisprudence is still controversial, I have suggested
that his conception of law may clearly be understood by comparison with
contemporary legal positivism, as it has developed from Austin to Hart,
bearing a distinct view of the nature and method of law. Having discerned
a relationship between law and morals that formerly appeared to be a gloss
on John Austin™s strict separation, Holmes developed instead what must
be described as an original common law theory. Finally, I have claimed
that Holmes provides a more comprehensive and compelling approach
to judicial restraint than strict textualism and original understanding,
grounded as they are in the positivist tradition.1

1 Given the diverse in¬‚uences on Holmes, from nineteenth-century Boston, Harvard, and
the Metaphysical Club to Austin, Maine, and Pollock, and the wide range of his specialized
research and reading, it is not easy to characterize his “philosophy.” However, Kuklick™s
The Rise of American Philosophy provides a helpful reference, shedding light on the dis-
tinctive context of philosophical speculation in the nineteenth century, especially the
amateur or “club” philosophizing in which Holmes was involved, and the gradual emer-
gence of professionalization in the twentieth, with its eventual emphasis on logic and
By the time H. L. A. Hart came to Harvard and reinvigorated the analytical separation
of law and morals in America, “noncognitivism” in philosophy had overwhelmed moral
naturalism with the linguistic turn of C. L. Stevenson™s Ethics and Language (New Haven:
Yale University Press, 1933) (Kuklick, The Rise of American Philosophy, 496“515). This had
an in¬‚uence on legal theory; the analytical separation of fact and value supported Hart
while obscuring the naturalistic roots of Holmes™s own distinction of law and morals.
The latter is rooted in the naturalist empiricist theorists of the Scottish Enlightenment,

Holmes, Legal Theory, and Judicial Restraint

In the following passage from The Supreme Court and the Idea of Progress,
Alexander Bickel emphasizes that the Supreme Court does not act as
a mechanical interpreter in isolation from the prevailing standards of
society at large.

The Supreme Court™s judgments may be put forth as universally prescriptive; but
they actually become so only when they gain widespread assent. They bind of
their own force no one but the parties to a litigation. To realize the promise that
all others similarly situated will be similarly bound, the Court™s judgments need
the assent and the cooperation ¬rst of the political institutions, and ultimately of
the people.2

He observes that its judgments “need the assent and the cooperation
¬rst of the political institutions, and ultimately of the people.” We should
expect such an obvious and signi¬cant fact to be incorporated in our
theory of legal interpretation.
Contemporary legal philosophy, dominated by the debate of whether
law and morals are separate, recognizes no dynamic relation between pop-
ular assent and the interpretation, as opposed to the enactment, of law.
With Holmes, legal interpretation is understood as continually informed
by the standards of conduct of the community at large. His conception
replaces the question of whether law is separate from morals by the inquiry
of how the two may be understood to interact. He may not have left us with
an entirely complete and satisfactory account of the dependent relation
between interpretation and popular assent, but this should not detract
from the fact that the relation is, uniquely among contemporary theories,
fully recognized. It is informed by the account Holmes provided of the
origin and speci¬cation of rules and the resolution of con¬‚icts between
them, and his attempt to de¬ne and distinguish constitutional review as
an aspect of the same relation.
Holmes abandoned the positivist effort to gain a comprehensive ana-
lytical understanding of law in favor of a naturalized historical one. He
did not simply reject Aristotelian logic, a logic rooted in classi¬cation and
deduction based on natural kinds, leaving nothing in its place but empty
skepticism. He replaced it with an account drawn from historical materials

especially the anti-Hobbes “moral sense” theories of Shaftesbury, Hutcheson, Kames, and
Adam Smith, and their in¬‚uence on the intellectual attitudes of other major theorists
and on eighteenth- and nineteenth-century American attitudes, as well as in the in¬‚uence
of Alexander Bain and others on the early “pragmatism” of the Metaphysical Club. See
chapter 3, n. 33, and chapter 5, n. 5 supra.
2 Alexander Bickel, The Supreme Court and the Idea of Progress (New York, Evanston, and
London: Harper & Row, 1970).
Conclusion 173

showing how common law concepts have emerged, with the growth and
reconciliation of diverse legal classes, assisted in part by logic, but in
fact deeply driven by practice and judgment, the repeated outcomes of
cases informed by the standards of the ordinary person. This naturalized
understanding is remarkably explicit in the 1899 article “Law in Science
and Science in Law,” where Holmes stressed that law is inescapably the
study of the history of legal precepts in order to understand their true
scope and limits.
It is perfectly proper to regard and study the law simply as a great anthropological
document. It is proper to resort to it to discover what ideals of society have been
strong enough to reach that ¬nal form of expression, or what have been the
changes in dominant ideals from century to century. It is proper to study it as an
exercise in the morphology and transformation of human ideas.3

Holmes™s account of deciding dif¬cult cases addresses an issue in con-
temporary political theory, in particular the nature of social and polit-
ical reasoning. It might be said that he has taken a naturalist detour
around Hegelian logic.4 Rather than the idealist vision of thesis engen-
dering antithesis and leading to synthesis, his is a concrete and anti-
rationalist model of conceptual development through a succession of
litigants encountering each other in the courts. In the case-by-case nego-
tiation of clashing purposes and interests, and the judicial abstraction
of responses to them, con¬‚icting principles (which lack “commensura-
bility” not from logical incompatibility but because they are rooted in
independent courses of conduct) may eventually be reconciled.
The insight came from the historical common law, discovered in the
1870s within the dry, citation-¬lled pages of Kent™s Commentaries on Amer-
ican Law. Resolutions come not from the mind of a single heroic judge,
the Hercules of Ronald Dworkin or the philosopher-king caricatured
by Justice Scalia, or even, strictly speaking, from the minds of many
judges. They eventuate over time, even across succeeding generations,

3 Holmes, Collected Legal Papers, 212.
4 As Professor Friedrich summarizes Hegel™s view, “Law is the embodiment of the ethical
idea emanating from the state; as such it is embedded in history which consists in the
unfolding of the world spirit™s idea of freedom by way of the states which progressively
realize it” (Friedrich, Philosophy of Law, 237). The notion that law embodies an innate
ethical idea undervalues the real struggles that produced recognition of areas of consti-
tutionally protected conduct, by presuming that a “world spirit” was inexorably pushing
human history toward them, and ignores the need for continued vigilance and the pos-
sibility of retrogression. Holmes often mocked the Hegelian concept of Geist; his diary
records reading secondary sources on Hegel in 1865“66; Little, “The Early Reading of
Justice Oliver Wendell Holmes,” 172.
Holmes, Legal Theory, and Judicial Restraint

through a combination of judicial and popular thought and action. When
points marked over time eventually suggest a reconciliation of con¬‚icting
views, it is one re¬‚ecting increasing experience and adjustment, among
all the actors in the ongoing ¬eld of con¬‚ict, within and without the
We might compare this with the detached rationalist model of the
philosopher John Rawls, who constructs the notion of a “re¬‚ective equi-
librium” under given hypothetical conditions (and behind a “veil of igno-
rance”) to explain the derivation of general principles of justice from
speci¬c conditions.5 Holmes™s model also aims at reconciling diversity
through the application of rules reached re¬‚ectively. But it is vastly dis-
similar in its dependence on historical detail rather than ivory-tower
re¬‚ection on presumptive competing ideas and interests. Insofar as it
embodies principles of liberalism, they are rooted in the historical expe-
rience of a civic republican community and its legal tradition, including
the conditions of adoption and implementation of the United States
Liberal and communitarian political theorists have battled in recent
years over the competing demands of individual rights and social solidar-
ity. The emergence of communitarianism in the late twentieth century
came in reaction to liberalism™s foundationalist or a priori picture of indi-
vidual rights. Michael J. Sandel, in Liberalism and the Limits of Justice, iden-
ti¬ed this “deontological” view of rights as rooted in the utilitarian and
Kantian traditions and re¬‚ected in the depiction by Rawls in his A Theory
of Justice.7 Holmes rejects such a view in his critique of John Austin, apply-
ing a naturalized view of emerging consensus to the rights enshrined in
the United States Constitution. Rights are de¬ned through experience,
not as innately “higher” principles that trump competing considerations.
They maintain a communitarian vitality in Holmes™s theory of law as
public inquiry. Rather than fundamental propositions, they are funda-
mental questions. In place of “deontological” foundations, Holmes gave
constitutional rights a naturalized, popular foundation, a meaning hard-
earned over time, hammered out in the real trials of an ongoing national

5 John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971).
6 Rawls addressed the objection that his original position was overly foundationalist in Polit-
ical Liberalism (New York: Columbia University Press, 1993); see Richard Rorty, Objectivism,
Relativism, and Truth (Cambridge: Cambridge University Press, 1991), 175“96.
7 Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University
Press, 1982), 1“10.
Conclusion 175

So described, this entails a vision of law with a unique notion of judicial
timing and restraint. Beneath each ¬nal ruling lies a tacit, multifaceted,
multiparty, slow-moving negotiation approaching at last some semblance
of a civic consensus. As such, a truly desirable outcome, indeed the notion
of “social desirability” itself, embodies something more complex than a
choice between the policy views on either side of a given controversy.
Judges must avoid proposing a formula too early, before all aspects of
the matter have been explored. As he explained in an opinion for the
Massachusetts court in 1900:

We do not forget the continuous process of developing the law that goes on
through the courts, in the form of deduction, or deny that in a clear case it might
be possible even to break away from a line of decisions in favor of some rule
generally admitted to be based upon a deeper insight into the present wants of
society. But the improvements made by the courts are made, almost invariably,
by very slow degrees and by very short steps. Their general duty is not to change
but to work out the principles already sanctioned by the practice of the past. No
one supposes that a judge is at liberty to decide with sole reference even to his
strongest convictions of policy and right. His duty in general is to develop the
principles which he ¬nds, with such consistency as he may be able to attain.8

In constitutional law, Holmes™s common law vision is illuminating,
even if tenuous and dif¬cult in practical application. Unlike contempo-
rary conservatives, many of whom still decry with Professor Corwin the
abandonment of strict procedural due process, Holmes yielded to what
Corwin conceded to be the powerful exigency to ¬nd room in the text
to weigh urgent new disputes against constitutional values. Conservatives
and liberals alike would agree that such values must be carefully weighed
somewhere in the governing process, or remain meaningless as they did
in the Soviet constitution.9 Holmes suggests a model through which con-
stitutional evaluation may take place concretely, without conceding ¬nal
judicial authority to determine their meaning for all time.
The Justices, while unable to enlist direct input from the public,
are largely bound by prevailing public standards and restrained where
standards are yet undeveloped or cannot be known. This is not to say
that they must remain silent when they believe that a widely accepted
practice “ such as forced confessions in the twentieth century “ is plainly

8 Stack v. New York, NH & HRR, 177 Mass 155, 158, 58 NE 686, 687 (1900), quoted in
Tushnet, “The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial
Court,” 1005.
9 See Harold J. Berman, Justice in the U.S.S.R.: An Interpretation of Soviet Law (New York:
Vantage Books, 1963), 376“80.
Holmes, Legal Theory, and Judicial Restraint

inconsistent with the Bill of Rights. Yet the language of the Constitu-
tion, and its Fourteenth Amendment, speaks to everyone, not just to the
Supreme Court. A way must be found, even in original controversies,
for the “absolute compulsion of the words” to have some force, without
conceding a license to make new law ahead of the popular conscience.
What, we might ask, is constitutional law, and how does it protect val-
ues so fundamental as liberty, equality, and freedom of expression? What
it does is not different from what the common law has done in multi-
ple contexts throughout centuries of experiment with free institutions
in England: it has focused the inquiry, it has forced the question, repeat-
edly. This is what is meant by First, or Fifth, or Fourteenth Amendment
jurisdiction: it asks whether a given public purpose is consistent with free
expression, equal protection, or denial of liberty without due process of
law. It does so in a continuing succession of urgent but particular con-
troversies, in which the stakes are high and all are held to account; and
it has asked relentlessly. Answers gradually have come out, but they were
and are not ¬nal. “Clear and present danger,” a test for free speech ¬rst
suggested by Holmes in 1919, now plays a subordinate role in First Amend-
ment law.10 The answers have not come only from inherent content in
the document, the understanding of its framers, or patent logical incon-
sistencies between statutory and constitutional language. They emerge
within a tradition, and have arisen from the speci¬c exigencies of main-
taining popular government through civil strife and world war, on into a
risky and uncertain future.

10 See Kellogg, “Learned Hand and the Great Train Ride,” 56 American Scholar 471 (1987).


1. Holmes™s classi¬cation of law as a system of duties (from 7 American Law Review
48 (1872)).
Appendix 179

2. Holmes™s classi¬cation of succession (from 7 American Law Review 67 (1872)).
3. Holmes™s classi¬cation of duties in his 1873 essay “The Theory of Torts” (from 7 American Law Review 663 (1873)).

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. Mr. Justice Holmes. New York: Charles Scribner™s Sons, 1942.

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