Sunday, October 18, 2009

On Oliver Wendell Holmes Jr.

To drive home his contempt for the majority’s approach, [Justice] Holmes included in his Lochner dissent [Lochner v. New York, 198 U.S. 45, 65 (1905)] a snide, sarcastic gem that has become the most quoted sentence in this much-quoted opinion: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” For a modern reader to grasp the meaning of this reference, some factual background is required. The English author Herbert Spencer (1820–1903) was a prominent intellectual whose most important book, Social Statics, was originally published in 1853 and reissued continually thereafter. ... Central to Spencer’s thinking was a belief that our emotions dictate our moral values, which include an “instinct of personal rights.” That “instinct” Spencer defined as a “feeling that leads him to claim as great a share of natural privilege as is claimed by others—a feeling that leads him to repel anything like an encroachment upon what he thinks his sphere of original freedom.” This led Spencer to conclude: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.” Holmes, by coyly denying that Spencer’s “law of equal liberty” had the solemn status of a constitutional principle, masterfully conveyed two points: that any principle of individual liberty must emanate from a source outside the Constitution, not within it—and that the Peckham majority’s “liberty of contract” had the same intellectual status as Spencer’s emotionalist rubbish. --Thomas A. Bowden, Justice Holmes and the Empty Constitution, The Objective Standard, Summer 2009 (via Arts & Letters Daily)

Mr. Justice Holmes, by H. L. Mencken, The American Mercury, May 1930, review of The Dissenting Opinions of Mr. Justice Holmes (via David Bernstein at The Volokh Conspiracy)


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