The Three Ps of Liberty by Allen Mendenhall

Author:Allen Mendenhall
Language: eng
Format: epub
ISBN: 9783030396053
Publisher: Springer International Publishing

It has become commonplace to refer to Holmes as a progressive,10 but Louis Menand points out that “[t]here have been hundreds of efforts since Holmes published The Common Law … to sew a political label on him. Commentators have tried to prove that he was a progressive, a liberal, a civil libertarian, a democrat, an aristocrat, a reactionary, a Social Darwinist, and a fascist.”11 Menand adds that “Holmes has been called a formalist, a positivist, a utilitarian, a realist, a historicist, and a pragmatist (not to mention a nihilist). Commentators who cleave to one of these terms usually find themselves spending a good deal of time explaining why commentators who favor one of the other terms cannot possibly be right.”12

Menand scoffs at these careless exercises in labeling, which merely assume that “[Holmes] was interested in the political consequences of his ideas.”13 Menand asserts, correctly, that “one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes …. [H]e was utterly, sometimes fantastically, indifferent to the real-world effects of his decisions.”14 In other words, Holmes did not reach his decisions because they would produce results he approved of; he reached them because he thought they were conclusions he had to reach in light of the facts, circumstances, and rules.

Holmes was not necessarily hostile to the workaday effects generated by the freedom of contract principles espoused by the majority in Lochner;15 instead, he was hostile to the federal-judicial regulation of citizens based upon the vagaries of an ideal like “liberty,” a word so vacuous that it could be appropriated, as it is today, by disparate ideological camps supporting vastly different political agendas.16

The pragmatist in Holmes disliked making decisions that were not rooted in lived experience or based upon observable, concrete phenomena relating to commonplace interactions among regular people.17 Holmes also disliked any tendency to marry morality and law, since law, for him, was nothing more than “the prophecies of what the courts will do in fact.”18 Holmes considered a judge’s positions to be subject to the restrictions of the Constitution, which he believed only on rare occasions permitted federal judges and Supreme Court Justices to overturn the legislative acts of state governments.19

Holmes was not an opponent of big business or industry.20 He claimed that “the man of the future is the man of statistics and the master of economics,”21 and he adored titans of industry and once remarked that “if they could make a case for putting Rockefeller in prison I should do my part; but if they left it to me I should put up a bronze statue of him.”22

Menand points out that Holmes’s “personal sympathies were entirely with the capitalists” and that Holmes “thought that socialism was a silly doctrine.”23 Richard Posner submits that Holmes had “made laissez-faire his economic philosophy” years before Lochner and that Holmes “doubtless thought the statute invalidated in Lochner [was] nonsense.”24

Posner doubts “whether the Fourteenth Amendment was intended to authorize

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