Political ideas of Justice Holmes

The Court opinions of Justice Oliver Wendell Holmes have been so influential and so persuasively stated that too little attention has been paid to his political philosophy. Yet a theory of government paralleled the development of his jurisprudence and was a consistent part of his total outlook. To determine the nature of that political philosophy, reliance must be placed largely on empirical evidence, very much as Holmes would have insisted. There should be no shying away from the fact that Holmes, as with other Supreme Court justices, was guided by a philosophy of government, even as he insisted that cases must be judged on their particulars. For example, Holmes was almost always prepared to allow Congress to determine policy as implemented by law; denying the will of Congress was to him a last resort. For constructing a Holmesian theory of government, the building materials are readily at hand. He was very much a man of his times in political outlook even as he became a leader in jurisprudential matters. Holmes was a social Darwinist and a fierce nationalist, but he also owed much to his Puritan inheritance transformed into a humanistic ethical code in which honor and honesty had secure places. By assembling his views of the place and function of government in the lives of the people from his extra-Court writings, Court opinions, and private letters exchanged with key correspondents, a theory can be constructed. Woodrow Wilson's The State, a standard piece of work for the period, serves as a method for organizing Holmes's thoughts on government, something he himself never did. Using Wilson's study as a guide and frame of reference, the many scattered observations Holmes made over a lifetime are brought together in a form that is cohesive, if incomplete, and in a fashion that unarguably speaks the mind of Justice Holmes on the science and art of government, with a special concern for American politics. His deeply felt convictions respecting the nature of government are an important feature of the total Holmes. To come to an awareness of his thinking pertaining to political affairs enables one to work forward from his basic postulates for a comprehension of the direction of his judicial growth. The organization of this particular commentary tends to bear this out. Only by working through his times, his mind, his rulings, and the candid expression of views discovered in his correspondence is it possible to make judgments on his political theory. In the logical order that theory should be the foundation of his jurisprudence, and thus the first order of business. But as with his study of the common law, the life of this investigation has not been logic but experience: the experience of Oliver Wendell Holmes as soldier, scholar, jurist, and philosopher. Then, and perhaps only then, can he be brought into focus as a significant American political thinker.