Oliver Wendell Holmes Jnr

Oliver Wendell Holmes Jnr

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.

© , September 1997 - April 2014

Primary Sources

(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.