Oliver
Wendell Holmes Jnr, the son of Oliver Wendell
Holmes, was born in Boston on 8th
March, 1841. Holmes joined Union Army during the American
Civil War and by the age of twenty he was first lieutenant in
the 20th Massachusetts Regiment of Volunteers. He was seriously wounded
three times and by the end of the war had reached the rank of captain.
In 1864 Holmes entered Harvard Law School and after graduating practised
law in Boston. He also edited the American
Law Review (1870-73) and Commentaries
on American Law (1873) before becoming professor of law
at Harvard University (1873-82).
Holmes became a national figure with the publication of his acclaimed
book, The Common Law (1881). He
was associate justice and then chief justice (1899-1902) of the Supreme
Court of Massachusetts (1899-1902).
In 1902 President Theodore Roosevelt
appointed Holmes as a member of the Supreme
Court and soon emerged as its leading liberal figure. A great
advocate of free speech, he argued that the only reason for curtailing
the right of freedom of speech was "clear and present danger"
to the well-being of society.
New York Legislature passed a law that set the hours of bakers at
no more than ten hours a day or sixty a week. In 1905 the owner of
a bakery was fined $50 for violating the law. He appealed to the Supreme
Court and it voted 5-4 that the law was unconstitutional. Holmes
was one of the four justices who disagreed with the decision that
was to hold back the passing of social welfare legislation.
In Supreme Court decisions Holmes often
found himself in the minority with only John
Harlan and Louis Brandeis supporting
him on issues such as progressive social and labour legislation. Oliver
Wendell Holmes died in Washington
on 6th March, 1935.
(1)
In
1897 New York Legislature passed a law that set the hours of bakers
at no more than ten hours a day or sixty a week. In 1905 the owner
of a bakery was fined $50 for violating the law. He appealed to the
Supreme
Court
and it voted 5-4 that the law was unconstitutional. Oliver Wendell
Holmes was one of those four justices who disagreed with this vote.
The liberty of the citizen
to do as he likes so long as he does not interfere with the liberty
of others to do the same, which has been a shibboleth for some well-known
writers, is interfered with by school laws, by the Post Office, by
every state or municipal institution which takes his money for purposes
thought desirable, whether he likes it or not.
Some of these laws embody convictions or prejudices which judges are
likely to share. Some may not. But a constitution is not intended
to embody a particular economic theory, whether of paternalism and
the organic relation of the citizen to the state or of laissez-faire.
(2) Oliver
Wendell Holmes, Supreme
Court
(1905)
The case is decided
upon an economic theory which a large part of the country does not
entertain. If it were a question whether I agreed with that theory,
I should desire to study it further and long before making up my mind.
But I do not conceive that to be my duty, because I strongly believe
that my agreement or disagreement has nothing to do with the right
of a majority to embody their opinions in law. It is settled by various
decisions of this court that state constitutions and state laws may
regulate life in many ways which we as legislators might think as
injudicious, or if you like as tyrannical, as this, and which, equally
with this, interfere with the liberty to contract. Sunday laws and
usury laws are ancient examples. A more modern one is the prohibition
of lotteries. The liberty of the citizen to do as he likes so long
as he does not interfere with the liberty of others to do the same,
which has been a shibboleth for some well-known writers, is interfered
with by school laws, by the post-office, by every state or municipal
institution which takes his money for purposes thought desirable,
whether he likes it or not. The Fourteenth Amendment does not enact
Mr. Herbert Spencer's Social Statics. United States and state statutes
and decisions cutting down the liberty to contract by way of combination
are familiar to this court. Some of these laws embody convictions
or prejudices which judges are likely to share. Some may not. But
a constitution is not intended to embody a particular economic theory,
whether of paternalism and the organic relation of the citizen to
the state or of laissez faire. It is made for people of fundamentally
differing views, and the accident of our finding certain opinions
natural and familiar, or novel and even shocking, ought not to conclude
our judgment upon the question whether statutes embodying them conflict
with the Constitution of the United States.
General propositions do
not decide concrete cases. The decision will depend on a judgment
or intuition more subtle than any articulate major premise. But I
think that the proposition just stated, if it is accepted, will carry
us far toward the end. Every opinion tends to become a law. I think
that the word liberty in the Fourteenth Amendment is perverted when
it is held to prevent the natural outcome of a dominant opinion, unless
it can be said that a rational and fair man necessarily would admit
that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our
law. It does not need research to show that no such sweeping condemnation
can be passed upon the statute before us. A reasonable man might think
it a proper measure on the score of health. Men whom I certainly could
not pronounce unreasonable would uphold it as a first installment
of a general regulation of the hours of work. Whether in the latter
aspect it would be open to the charge of inequality I think it unnecessary
to discuss.
(3)
Oliver Wendell Holmes Jr., statement on the Espionage
Act (1919)
I think that resistance to the United States means some forcible act
of opposition to some proceeding of the United States in pursuance
of the war. I think the intent must be the specific intent that I
have described, and, for the reasons that I have given, I think that
no such intent was proved or existed in fact. I also think that there
is no hint at resistance
to the United States as I construe the phrase.
In this case, sentences
of twenty years imprisonment have been imposed for the publishing
of two leaflets that I believe the defendants had as much right to
publish as the government has to publish the Constitution of the United
States, now vainly invoked by them. Even if I am technically wrong
and enough can be squeezed from these poor and puny anonymities to
turn the color of legal litmus paper; I will add, even if what I think
the necessary intent were shown; the most nominal punishment seems
to me all that possibly could be inflicted, unless the defendants
are to be made to suffer, not for what the indictment alleges but
for the creed that they avow - a creed
that I believe to be the creed of ignorance
and immaturity when honestly held -
as I see no reason to doubt that it was held
here, but which, although made the subject
of examination at the trial, no one has
a right even to consider in dealing with the
charges before the Court.
Persecution for the expression
of opinions seems to me perfectly logical. If you have no doubt of
your premises or your power and want a certain result with all your
heart, you naturally express your wishes in law and sweep away all
opposition. To allow opposition by speech seems to indicate that you
think the speech impotent, as when a man says that he has squared
the circle, or that you do not care wholeheartedly for the result,
or that you doubt either your power or your premises. But 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 accepted in the competition of the market, and that truth
is the only ground upon which
their wishes safely can be carried out. That
at any rate is the theory of our Constitution.
It is an experiment, as
all life is an experiment.
Every year, if not every day, we have to
wager our salvation upon some prophecy based
upon imperfect knowledge. While that
experiment is part of our system, I think
that we should be eternally vigilant against
attempts to check the expression of opinions
that we loathe and believe to be fraught
with death, unless they so imminently threaten immediate interference
with the lawful and
pressing purposes of the law that
an immediate check is required to save the
country.
I wholly disagree with
the argument of the government that the First Amendment left the common
law as to seditious libel in force. History seems to me against the
notion. I had conceived that the United States through many years
had shown its repentance for the Sedition Act of 1798 by repaying
fines that it imposed. Only the emergency that makes it immediately
dangerous to leave the correction of evil counsels to time warrants
making any exception to the sweeping command, "Congress shall
make no law . . . abridging the freedom of speech." Of course
I am speaking only of expressions of opinion and exhortations, which
were all that were uttered here, but I regret that I cannot put into
more impressive words my belief that in their conviction upon this
indictment the defendants were deprived of their rights under the
Constitution of the United States.
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