RODELL, FRED

English

Yale Law School Legal Scholarship Repository

JUSTICE HOLMES AND HIS HECKLERS*
FRED RODELLt
WESTBROOK Pegler, the only man who ever made a living out of the sort
of stuff that small boys scrawl on back walls and fences, has recently turned his
dirty-name attack against Supreme Court Justice Oliver Wendell Holmes.
Holmes, of course, has been dead these sixteen years and so Pegler, with his
customary gallantry and courage, feels free to spit at the Justice's memory
some of the choicer epithets in his vocabulary of vulgar invective. As Pegler
puts it, Holmes was a "cynical and senile brutalitarian"; he was "the God
of an evil cult"; he was "a brutal old faker"; and he "had no more morals
than a pig."
The owner of these lovable traits was responsible, according to the limpid
Peglerian logic of guilt-by-association run backvards, for the subsequent sins
of Alger Hiss, Lee Pressman, and scores of unnamed others who made up
the "maze of perfidy which developed in the bureaucracy soon after Roosevelt
came to power"-all this by direct pipe-line, through the Harvard Law Review
and Felix Frankfurter, straight back to the arch-villain, Holmes. (Does West-
brook, I wonder, lie awake nights wishing Franklin Roosevelt had gone to
Harvard Law School instead of Columbia?)
Taken by itself, the picture of Pegler trying to "bring Holmes down" (the
phrase is Pegler's) is essentially a comic picture. It is as though a worm with
delusions of grandeur were to pick on a giant. For Holmes was one of the
finest minds and greatest spirits that American civilization has produced. And
only a man so bumpkin-ignorant that he thinks he need pretend ignorance in
his writings could fail to recognize Holmes' stature and be a little humble
before it. Indeed, no one would have laughed more heartily and unmaliciously
than Holmes himself at Pegler's temper tantrum in print, despite its distribu-
tion to the millions of comic-book lip-readers who make up Pegler's audience
and who probably confused his target-for-the-day with an outfielder, also
named Holmes, formerly on the Boston Braves.
But Pegler's attack on Holmes unfortunately cannot be taken by itself and
therefore cannot be laughed off and forgotten. Pegler, who probably never
read a word Holmes wrote in his life, got his lead elsewhere. He got his lead
from a group of men more responsible and thoughtful than he, most of whom
would doubtless deplore Pegler's blast for its vulgarity and its vicious stupid-
ity-but most of whom should recognize in what Pegler wrote a reaffirmation,
however offensively phrased, of their own ideas about Holmes and his phil-
osophy of law and life.
*The Editors are indebted to the Progressive Magazine for permission to publish
this article.
tProfessor of Law, Yale Law School.
JUSTICE HOLMES AND HIS HECKLERS
Thus Pegler makes extensive use in his column of a politely scholarly piece
on "The Secret of Mr. Justice Holmes" which was written by a respectable
San Francisco lawyer named Harold McKinnon, wgs published last year in
the eminently proper American Bar Association Journal, and was later re-
printed as a pamphlet with a laudatory foreword by Professor Mortimer Adler
of Chicago who also believes in The Great Books.
According to Mr. McKinnon, the "secret" of Holmes was that, though
he had "a very bad philosophy . . .fundamentally indistinguishable from the
amoral realism of those regimes of force and power that are the scandal of
the century" (which is a long-winded way of calling Holmes either a fascist
or a communist), he nevertheless attained great fame because of "the simple
fact that in the high realm of the intellect we have lost our principles." Hence
Holmes' "philosophy is a symbol of our intellectual wretchedness, a conspicuous
example of our abandonment of those spiritual, philosophical and moral truths
that have been the life of" etc. And Professor Adler of The Great Books says,
in introducing McKinnon, "his diagnosis is deadly accurate." Just how far
are McKinnon and Adler away from Pegler?
Nor did the more erudite efforts to disparage Holmes' reputation and under-
mine his influence begin with McKinnon and Adler. For roughly ten years, the
assault on Holmes and what he stood for has been out in the open-certainly
since Fathers John Ford and Francis Lucey published separate attacks on
the Justice back in 1942. The bluntness of Holmes' pre-Peglerian belittlers
is perhaps best illustrated by the title of a 1945 article written by Ben Palmer,
a Minneapolis lawyer, and printed, like the McKinnon piece, in the American
Bar Association Journal; it was called "Hobbes, Holmes, and Hitler." And
among those who have taken more restrained potshots at the Holmes prestige
and philosophy is Professor Lon Fuller from-of all places-the Harvard Law
School.
What lies at the bottom of all this desperate effort to discredit the almost
legendary figure who at his death, and long before it, was hailed as the grand
old man of U. S. law and as one of the great Americans of all time? Max
Lerner, writing in the New York Post about the Pegler piece but apparently
oblivious of the respectable soil from which it sprouted, opines that "in order
to destroy the democratic idea you have to destroy democracy's dead heroes
even more than its living champions." The explanation is too pat and too nar-
row; there is more behind even Pegler than this.
Says the Madison, Wisconsin, Capital Times, in an editorial typical of many
throughout the country: "Pegler and his pack are currently out to destroy the
name of . . .Holmes: The reason is obvious. Holmes was for many years
the great champion of individual liberties on the court." That is getting a little
closer, but only a little; too many of the Holmes critics believe, whether or not
Pegler does, in the individual liberties that Holmes, as a judge, upheld.
In a recent issue of the Harvard Law Review (if Pegler will forgive my
mentioning it) is an article by Professor Mark Howe, defending Holmes
1951]
THE YALE LAW JOURNAL
against his critics including Howe's colleague, Professor Fuller. Early in the
article Howe states: "The criticism of Fathers Ford and Lucey, popularized
by Mr. Palmer and perverted by Mr. Pegler, is . . . firmly grounded in the
Catholic philosophy of law" because "Holmes not only proclaimed himself a
skeptic in matters of religion and denounced man's relentless effort to give
human values a more than human significance, but he denied the existence of
that law of nature upon which the Catholic philosophy of law is based."
Now the real roots of the assault on Holmes begin to show. There is no
doubt that Catholic, and especially Jesuit, scholars plus Catholic laymen have
been in the forefront of that assault. But to say this is by no means to say-
nor does Professor Howe imply or say it-that the whole shebang is a Catholic
conspiracy against the name of Holmes. Indeed, one of the most devastating
denunciations of Pegler's column appeared in a Catholic publication, the
Commonweal. And, much more significantly, just as all Catholics are not joined
in the onslaught on Holmes (the late Justice Murphy, for one, bitterly re-
sented it) so that onslaught has a far broader base than its sometimes militant
Catholic participants.
The single trait that binds together the critics of Mr. Justice Holmes-be
they Catholics, Protestants or Jews-is a belief in some sort of Absolute, out-
side and beyond the minds of men. That Absolute may be strictly religious,
or philosophical or jurisprudential or, more often, a combination of all three
-and to those who believe, there is presumably comfort in believing. But with
the comfort, also presumably, there goes a lurking fear, that the faith in some-
thing certain and superhuman may be shaken or shattered. It was that sort
of fear that Holmes instilled, and still instills, in the faithful.
Holmes would have nothing of Absolutes. In religion he was an agnostic,
in philosophy a skeptic, in law a realist. The notion of any sort of ultimate
truth, above the capacity of the human mind to create or affect, was abhorrent
to him. He was expressing far more than liberal legal doctrine when he wrote:
"When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their
own conduct that the ultimate good desired is better reached by free trade in
ideas-that the best test of truth is the power of the thought to get itself ac-
cepted in the competition of the market and that truth is the only ground upon
which their wishes can safely be carried out."
By "competition of the market" he meant, of course, competition with other
ideas in the minds of men. And this "best test of truth" was his answer to
all the absolutes of authoritarianism, to having the answers handed down from
somewhere on high. It was also his tribute to the essential dignity and decency
of human beings.
This deeply democratic faith in man's power of reason is what Holmes'
detractors slur over or ignore when they denounce his philosophy, whether
politely or otherwise, as totalitarian-tended and hence unAmerican. Such
denunciations stem in part from the denouncers' own emotional need to feel
[Vol. 60: 620
JUSTICE HOLMES AND HIS HECKLERS
that their personal dependence on some sort of safe-and-sound cosmic morality
-- call it God or Ultimate Truth or Natural Law-must be a part of every
patriot's creed, that skepticism and Americanism are antithetical (a notion
that would have amused some of our best-known patriots of the past). But
these denunciations also stem from a complete misunderstanding, so stark as
almost to seem deliberate, of the realism about law and life that was the touch-
stone of all Holmes' thinking.
Holmes hated humbug. He was not one to confuse words with things. The
conventional way of scholarship, especially in the law, with its concentration
on abstract principles and concepts and rules to the disregard of down-to-earth
facts, was anathema to Holmes. And so a large part of his work was devoted
to digging beneath the deceptive claptrap of word-thinking and to finding and
stating the realities of living law.
His insistent realism led Holmes to proclaim many unpleasant truths about
the way law works, truths which the word believers, complacent in their con-
ceptual clouds, found hard to face. One of his most-quoted shockers went to
the effect that all that law really amounts to is what a bad man cannot get
away with-that is, what an utterly lawless and immoral person cannot do
without being legally punished for it. And much of Holmes' stuff, in and out
of the field of law, stresses force-whether of police or armies-as the ultimate
arbiter today of men's affairs.
It is to this sort of unpalatable realism-the truth of which could be bitterly
attested by most of the world's peoples today (and why should the U. S. bother
to build atom bombs if right makes might ?)-that Holmes' attackers point
when they call him totalitarian or worse. What they conveniently overlook,
as even the most scholarly of them quote Holmes out of context, is that Holmes
here was merely describing what is; he was not purporting to say what
ought to be. Indeed, in the very speeches and articles most commonly cited
against him, Holmes took pains to make clear that he was not defending the
status quo which he described, that his realistic analyses were meant as a basis
from which intelligent improvement might spring, that his skepticism had
never bred in him the cynicism of defeat and despair, and that, in the realm
of ought-to-be, he held strong moral and ethical views concerning decency and
justice among mankind.
The reason why his disparagers persist in confusing Holmes' is with his
ought-to-be and in closing their eyes to his clear moral sense of the good, the
decent, the desirable, goes straight back to Holmes' impatience with Absolutes.
His critics, authoritarians all, will accept no moral code as truly moral that
does not embody a set of timeless superhuman principles; to them, a system
of ethics which finds its sole source and its outer limits in the minds of men
is a contradiction in terms. To Holmes, who asked for no ultimate answers,
morality was no less moral-and perhaps a little more moral-because it was
the product of the innate decency of human beings.
19511
THE YALE LAW JOURNAL
When Holmes enraged the legal authoritarians by scoffing at their concept
of Natural Law-a supposed body of absolutes by which all manmade laws
should be tested-he did not mean that all manmade laws were good, nor that
manmade laws should not be judged in the light of ethical values, nor that
manmade laws should not constantly be changed to better achieve the ethical
ends of fairness and justice. He meant only that any ethical values or ends to
which laws could and should be related would always have to come out of
mortal minds rather than out of some jurisprudential heaven.
A couple of Holmes' best-known epigrams are aimed at the authoritarianism
implicit in Natural Law: "The common law is not a brooding omnipresence
in the sky." "The life of the law has not been logic; it has been experience."
For Holmes saw that those who claimed for their ideas, as he never did, a
validity apart from the facts of life, a validity said to be grounded in the ab-
stractions of logic or the absolutes of Natural Law, were in essence trying to
raise those ideas to a stature not inherent in the ideas themselves and so scare
away any irreverent skeptics who might want to ask Why.
Small wonder, then, that the boys who know all the answers, be they col-
umnists or scholars, have been trying to "bring Holmes down." They know
him, even sixteen years dead, as their mortal-or maybe immortal---enemy.
So long as his words can still be read, their philosophy and their teachings
are insecure.
For so long as Holmes' words can still be read, they will penetrate and
influence the minds of the men who read them-those human minds to which
Holmes' whole credo paid such respect. And if the men who read Holmes
read his detractors too, they will see which of the two conflicting views of
life is more nearly fascist (authoritarianism is the essence of fascism) and which
is more deeply democratic (democracy postulates the intelligence of each in-
dividual man). Perhaps they will also come to see some element of moral
cowardice in him who turns to Absolutes for solace and some touch of in-
tellectual arrogance in him who tries to impose his Absolutes on others.
Justice Holmes had the moral courage to accept uncertainty and the intel-
lectual humility to know that he could not know-This is Truth.
[Vol. 60: 620
THE YALE LAW JOURNAL
VOLUME 60 APRIL, 1951 NUMBER 4
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WILLIAM DILL ROGERS
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CONTRIBUTORS TO THIS ISSUE
ARTHUR L. CORBIN. B.A. 1894, University of Kansas; LL.B. 1899, M.A. (Hon.)
1909, Yale University. Author CORBIN ON CONTRACTS, CASES ON CONTRACTS; editor
ANSON ON CONTRACTS. Co-reporter, American Law Institute Restatement of Contracts.
Advisor, Sales Section, American Law Institute Uniform Commercial Code. Visiting
Professor of Law University of California; William K. Townsend, Professor of Law,
Emeritus, Yale University.
REGINALD PARKEM J.S.D. 1927, University of Vienna; private practice in Vienna
1927-38. Government and private practice in the U.S. from 1939. Has taught law
at National University of Washington, Columbus University of Washington, University
of Idaho. Member of the Supreme Court Bar, District of Columbia Bar and the
Illinois Bar. Visiting Professor of Law, University of Arkansas.
TOBIAS WEISS. B.S. City College of New York, LL.B. Columbia University.
Member of the New York Bar.
FRED RODELL. B.A. 1926, Haverford College; 1926-27, University of London; LL.B.
1931, M.A. (Hon.) 1939, Yale University. Assistant Literary Editor of the Century
Publishing Company 1927-28; legal advisor to Governor Pinchot of Pennsylvania
1931-33. Editor of Fortune 1937-38, contributing editor of The Progressive, member
of the National Panel of Arbitrators, American Arbitration Association. Professor
of Law, Yale Law School.


JUSTICE HOLMES AND HIS HECKLERS

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JUSTICE HOLMES AND HIS HECKLERS

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