The story of Justice Oliver Wendell Holmes is the story of his country. The narrative cannot begin with the flat date of his birth -- 1841. This was a man whose presence carried tradition. Everyone who met him felt it, and it was not oppressive but inspiring. Over his shoulder one glimpsed somehow his ancestors. His roots reached deep into American earth; it was the strength of these roots that permitted so splendid a flowering.
And Bowen evidently means it, because this is not just a biography of Justice Oliver Wendell Holmes, but also a biography of his father and his grandfather. His father was a doctor and his grandfather was a reverend, and together the lives of these three men described in this book begin in 1800 and end in 1935.
Personal and Social History
As such, Bowen is writing a kind of social as well as a personal history. The story, not just of three men, but of the society in which they lived, and the transitions -- sometimes painful ones -- that it went through.
Holmes’s grandfather was named Abiel, and, like any true reverend, early on he is worried about the very soul of the American nation. Here is he, shortly after the death of his own father, encasing that national worry in concern for his son, also named Oliver.
Oliver missed his grandfather. Abiel Holmes, observing his son, whose customary chatter was stilled, wondered if he had been seeing too little of the boy. He began inviting Oliver to drive with him to Dorchester or Lexington to hear him preach; the two would jog off together in the two-wheeled chaise behind a quiet horse, and the boy loved it. They would leave on Saturday and come home on Monday. Abiel, on these trips, talked religion to his son. Oliver listened vaguely. By the time he was ten the Westminster Catechism had lost its bite not only for Oliver Holmes but for most of New England. Oliver was still afraid of the Devil, but the doctrine of transmitted sinfulness, justification, sanctification, meant no more to him than the mystic syllables by which his friends counted each other out in their games.
But to Abiel Holmes the old doctrines had become more important than ever. It seemed to him that New England was rushing toward Unitarianism like the Gadarene swine to destruction. Theologically, Unitarianism meant God as One, rather than God as Three in One. As long as the movement had been confined to theology, Abiel had paid little heed. Any good historian knew such quarrels were forgotten in a generation and the true doctrine prevailed. But Unitarianism had obviously gone far beyond doctrinal matters. The old morality was disappearing with the old religion. Abiel, who had cautioned his congregation against singing Watts’s hymns with levity, saw crowds go to church gayly, in their best bonnets, as if they were going to a show. Pipe organs and mummery took the place of solemnity and the Long Prayer; if men still loved God they most certainly did not fear Him. And fear of the Lord, Abiel told himself passionately, was the beginning of wisdom.
Were drifting away from personal and towards social history -- something Bowen does regularly with grace and skill.
The truth was that the Unitarian movement was a natural concomitant to events that were not churchly but sociological, not local but nation-wide. The Jeffersonian ideal of individualism, opportunity for all, refused to jibe with the notion that man was born wicked, doomed forever. Federal or Democratic-Republican -- no matter what one’s politics, the ideas of Jefferson and of Rousseau before him had penetrated too far to be revoked. The Rights of Man -- was this consistent with a doctrine of total depravity and everlasting damnation? If you could get ahead on earth, said Yankee common sense, you could get ahead in heaven. And to this notion the new applied science was a potent ally. A man who had seen his mother die of the smallpox and who now saw his son saved by vaccination could no longer believe that prayer was the only salvation against present danger. Lavoisier had said that matter was indestructible; even smoke was but another form of the wood it rose from. John Dalton advanced his atomic theory. Down in Monticello, Thomas Jefferson was experimenting with the rotation of crops, using calculus as well as common sense on his farm, and at the same time planning a university that was to embrace all creeds.
And now, back to the personal -- connecting and encompassing the social in the lives of her subjects.
With every step that science took, Abiel was in keen accord, setting it down in the Annals whether it was a mere tally of the number of spindles in Baltimore’s cotton factories or the founding, in 1818, of the Massachusetts General Hospital in Boston. But to the new spirit that went along with science, the new agnosticism, Unitarianism -- whatever name man called it -- Abiel was deeply opposed. When a man invented a cotton loom, a water-driven spindle, let him dedicate it to the glory of God! Let him go down on his knees and thank the Father who had put this invention into the mind of His humble servant. Life was becoming easy, conditions of daily living much softer. And man, Abiel Holmes observed, no longer feared his Maker. His house warmed by stoves, man looked out at the raging blizzard and smiled, forgetting to propitiate his God.
Generational Divides
In part because Bowen is telling the story of three lives -- a man, his son, and his grandson -- and in part because of her helpful bent towards social history, generational differences grow into a major theme in her overall work. The defining generational event for the grandson was clearly the American Civil War -- in which he fought and was wounded several times. Bowen expertly uses those experiences to illuminate the generational divides that were already then beginning to shape changes in the American experiment.
In the excerpt below, the grandson, the future Supreme Court justice, is called Wendell to distinguish him from his father of the same name.
To Wendell it seemed incredible that people would ask for stories of the battlefield as for tales of a circus, or of a boat race on the river Charles. He had forgotten his own eager garrulousness after Ball’s Bluff -- a battle in which he had not seen ten minutes of fighting before being carried unconscious from the field. What he knew now of battlefield was better forgotten, but Wendell could not forget. Dead men sprawled among the corn, naked, stripped of trousers and boots, eyes staring, limbs flung out in awful abandon. For those boots and trousers the Rebels had fought like tigers. If the North fought for “victory,” for “Union,” “freedom,” the South fought for shoes to put on its bleeding feet, pants for its legs, and fought no less bravely. Here on the streets they called the Rebels cowards. They were not cowards.
Cowardice, gallantry, chivalry -- how wearily a soldier, returned from the field, met such words! At home they thought of battle as if it were fought on Boston Common. As if a man came down the steps of his house pulling on his gloves, smoking a cigar -- then got on his horse and charged a battery up Beacon Street while the ladies waved handkerchiefs from a balcony. What really happened was that you spent the night on the wet ground with your bowels open and fought on a breakfast of salt meat and dirty water.
There is much of the weary soldier in this, the clash between the swelling patriotism of the homefront and bitter vigilance and desperation of the front lines. But there is also something generational going on here.
Wendell had heard his father talk of Antietam battlefield; apparently he had gone out there while waiting for the evening train from Frederick. He had brought home souvenirs -- a Rebel canteen, a note that said, “tell John that nancy’s folks are all well and has a verry good Little Crop of corn a growing.” Half a dozen times, Wendell had heard his father tell the story; he strongly suspected it had been written down in some kind of memoir his father made of the trip.
The visitors who came to Charles Street to pay their respects to the wounded hero were charmed with this story. But when they turned to the hero himself they were offended by what he said. “War?” Captain Holmes repeated coldly, his gray eyes remote. “War is an organized bore.”
The visitors went down the steps shaking their heads. “Captain Holmes used to be so agreeable. How changed he is! Is it possible,” they asked one another doubtfully, “that he is going over to the radicals? How hard for his dear father and mother!”
How changed he is, indeed. And not just him, but an entire generation. And the worry over “the radicals” is also telling, conjuring, as it does, the great and unremitting battle of ideology that is the very essence of the American experiment. More on that in a minute. For now let’s dwell a little longer on the generational divide that the Civil War so clearly illuminates, with Captain Wendell Holmes as far from his father and the world he would make for his son as the non-intersecting orbits of two planets going around the same sun.
The most disagreeable episode of his stay at home had not been a national matter at all, but something highly personal. Proof sheets of the Atlantic had arrived; Wendell’s father with a pleased smile had turned them over to his son. Carrying the story upstairs to his room after the family was in bed, Wendell read them, his flesh crawling. He tried to skip, tried to stop reading, but continued in horrid fascination to the end … “for this our son and brother was dead and is alive again, and was lost and is found … Lay him in his own bed, and let him sleep off his aches and weariness …”
Oh my God! thought Captain Holmes, blushing to the roots of his hair. What if Company A should get hold of this?
“In the first car, on the fourth seat to the right, I saw my Captain; there I saw him, even my first-born, whom I had sought through many cities.
“‘How are you, Boy?’
“‘How are you, Dad?’”
Boy? … His father had never called him “Boy” in his life. What would the Twentieth Regiment think of that for a salutation? And the details of the battlefield. That gimlet eye had missed nothing. How could a man be so infernally curious about every stick and stone, every sound and sight? … “tell John that nancy’s folks has a verry good Little Crop of corn a growing.” Those notes his father made on the train must have been calculated straight to this article. As far as description went it was all true, too. Those army wagons, bearing down the road, changing their course for no man. …
It was extraordinary how fast the Atlantic Monthly traveled. From Sharpsburg, Virginia, with the Forty-first Massachusetts, John Gray wrote home to his mother: --
“I was much obliged for the Atlantic Monthly. The little doctor’s conceit and pertness appears more fully than in anything else of his I ever read (though I should make such a statement with hesitation) and I should think his “Hunt” would be considered too long by those who take no personal interest in the persons and things described, and he certainly talks more freely about the appearance and character of those he meets than he had any right to do; but I was very much interested in it and his description of the people and country is wonderfully correct and graphic, considering what a cursory view of them he must have had.”
Captain Holmes is referring here to a piece his father had written for the Atlantic Monthly, “My Hunt After the Captain,” in which the elder Holmes describes his frantic search through Civil War-torn landscapes for his wounded son. It was wildly popular, but it embarrassed the Captain, illustrating like little else the generational divides that existed even then.
But if the young disapproved the “Hunt,” the old loved it. New England read it aloud to the family, read it from the school desk and the lecture platform. It told people what they wanted to know about Antietam battlefield and told them in a tone they were familiar with -- a kindly tone, filled with sentiment. A father’s tone, with none of the nonchalance of youth, so baffling to middle age in the face of danger and horror. There was no need for Wendell Holmes to tell his father what he thought of this latest performance of the literary mind. Dr. Holmes knew what his son thought -- and ignored it cheerfully. If Wendell did not like the Atlantic he could read Hobbes’s Leviathan. The young were ridiculously sensitive; why should not a man desire to share his experiences with a waiting world?
It is very much like Roth’s American Pastoral -- with Dr. Holmes as Swede Levov and the Captain as Merry -- two people and two generations that love but do not understand each other.
The Great and Unremitting Battle of Ideology
Although three generations of the Holmes family come on and off the stage in Bowen’s work, the bulk of the spotlight is reserved for the grandson in this story -- the Civil War Captain who would one day be a United States Supreme Court Justice. And just as it seems that the Captain’s service in the War Between the States exemplified a period of great generational transformation for the still young nation, his service on the bench would come to exemplify another of the great class struggles in our history -- the never ending fight between collectivism and individualism.
When Holmes came to the Bench, the burning issues of the day were labor’s grievance against the employer, and the people’s grievance against the corporations: two manifestations of the individual’s battle for survival in a collectivist world. The battle was just beginning; it would rage all during Holmes’s lifetime and beyond. And in court the fight hinged always around two clauses of the Constitution: the Commerce Clause and the Fourteenth Amendment that declared “no State shall deprive any person of life, liberty or property without due process of law.” There was no way for the lawmakers of 1866 to foresee this, to foresee the emergence of a huge corporate ownership that would seek to construe “due process of law” to its own ends.
Things get pretty dense in this section, but I think Bowen does an excellent job keeping the currents of thought and perspective separate from one another, much the way she claims Justice Holmes was able to do. It takes some explaining, but it’s worth it.
After the Civil War, America found a new symbol. Once she had looked to the Declaration of Independence. But the Declaration was a trifle vague -- to a Massachusetts businessman, almost transcendental. By 1880, there was more than a suspicion that in spite of the hopes of the Fathers, political liberty would never result in economic equality. Men became less interested in being born free and equal, more interested in regulating commerce. If the Declaration had been a profession of faith, the Constitution was its working instrument, and America looked now to the Constitution.
The trouble was that the courts gave this working instrument no elasticity; they regarded it as immutable, written in stone on Sinai. Desperately, the people needed judges who possessed historical as well as judicial awareness, judges whose social prejudices were levelled by the long view of the scholar. Only such men, fearing neither socialism, capitalism, nor any other ism, could construe the Constitution according to the needs of the times.
Holmes was such a man. “A constitution is not intended to embody a particular economic theory,” he said, “whether of paternalism … 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. … Constitutional law, like other mortal contrivances, has to take some chances. … The Constitution is an experiment, as all life is an experiment.”
It’s a refreshing perspective, this idea that the Constitution is neither a socialist nor a capitalist manifesto, that neither of those economic theories should find a natural home within its articles and sections. The Constitution, in other words, is a document that can be used to govern a nation comprised of those and many other economic theories.
It is a perspective that not everyone holds -- indeed, today, as well as in Justice Holmes’s time. And in the great battle between capital and labor, many a demagogue on both sides of the fight have tried to bend Holmes’s neutral Constitution to their own partisan ends.
One such demagogue, the trustbuster himself, Theodore Roosevelt, did not understand where Justice Holmes was coming from, even after appointing him to the Supreme Court. The case in point was Northern Securities Company v. the United States, in which Roosevelt’s government accused James J. Hill’s railroad company of growing too large and violating the Sherman Anti-Trust Act. After the case was heard and before a decision came down, the President thought he had it in the bag.
Theodore Roosevelt himself, counting over his nine Justices, was well satisfied. He would win by a seven-two decision, or at worst a six-three. A righteously aroused public opinion would surely react upon what T. R. might have called the conscience of the Court. Let the Justices look to their conscience and settle this case as it should be settled! The atmosphere was auspicious for victory. Concerning his new judicial appointee from Massachusetts, the President had no doubts. Holmes’s labor decisions in Boston, notably Vegelahn v. Guntner and the later case of Plant v. Woods, showed clearly where his sympathies lay.
The President could not have been more mistaken. To Holmes, the Supreme Court existed for the purpose of interpreting the statutes according to the Constitution of the United States -- not as a whipping post for malefactors of great or little wealth. If the Northern Securities Company was proved, under the Sherman Act, to be in restraint of trade, it should be dissolved. If not, it should stand. All this pressure of public opinion served merely to cloud the issue.
Holmes, it was true, had said again and again that judges must bear in mind the economic changes in society, the “felt necessities of the time.” But that was a very different matter from being stampeded by a public opinion which the exigencies of the moment dubbed “righteous.” If the public would come out frankly and say it desired to sock the rich, it would be, Holmes thought, far more admirable than this pretense of using the courts to call the rich illegal simply because they were rich. As for the conscience of the Court, a court that ruled according to its “conscience” would be no court at all. Law was neither morality nor politics nor expediency nor art. Theodore Roosevelt, obviously, chose whichever definition suited the moment.
Justice Holmes, in other words, thought it was his job to be a referee, not on the team of the President that appointed him.
This perspective often got him in trouble.
Theodore Roosevelt heard the decision of the Court and was jubilant. The suit, he said, was one of the greatest achievements of his administration. The Knight case had been overruled, the Northern Securities Company was dissolved, the power of the government against the monopolies was established. The government -- Roosevelt called it “we” -- had gained the power.
But it was a crime that the decision had not been more nearly unanimous. Justice Holmes’s dissent in particular was outrageous. What did the man mean, turning against him that way? Obviously, Holmes had simply lost his nerve. “I could carve out of a banana,” shouted T. R., “a judge with more backbone than that!”
It’s no surprise to this reader that Theodore Roosevelt saw Holmes’s decision as a “turn against him.” Indeed, from that titan’s point of view, what else could it have been?
But Holmes would have none of it.
Holmes himself cared nothing whatever about the Presidential reactions. He was, in fact, as angry as the President. Years later, he wrote to Pollock about it. “[The affair] broke up our incipient friendship, however, as [Roosevelt] looked on my dissent … as a political departure (or, I suspect, more truly, couldn’t forgive anyone who stood in his way). We talked freely later but it was never the same after that, and if he had not been restrained by his friends, I am told that he would have made a fool of himself and would have excluded me from the White House. … I never cared a damn whether I went there or not. He was very likable, a big figure, a rather ordinary intellect, with extraordinary gifts, a shrewd and I think pretty unscrupulous politician. He played all his cards -- if not more.”
It’s fascinating. A struggle between two men and two philosophies -- one focused on calling balls and strikes, the other on swinging for the fences. When Holmes “opposed” Roosevelt, the political animal could interpret no other way. So how confused must he have been when Holmes swung the other way in the next major case to come before the Court?
In Lochner v. New York, the Court ruled that a state placing legal limits on the amount of time a company could ask its employees to work was a violation of the Fourteenth Amendment. At the time, it was a landmark case in the battle between capital and labor. And Justice Holmes, like in the Northern Securities case, was in the dissent.
To Justice Holmes, combination on the one side was as lawful, within limits, as on the other. In the Northern Securities dissent he had upheld the side of capital -- although he would have disliked to hear it called a “side.” Now, a year later, he was to uphold the other -- the right of a state to regulate the hours of labor. Holmes’s dissent in the Lochner case was among his most significant utterances in Court. It heralded a long a noble list of such dissents, opinions which were to prove him, old though he was, far younger in spirit than his brethren, at once prophetic in vision and tough-minded in the law.
It is all evidence that Holmes did the best he could to rule in the absence of political or economic philosophy -- and in an age when the foundations of collectivism and labor were being laid. Many viewed collectivism as the fundamental right of the underclass, while others viewed individualism (and its close cousin the ownership of property) as just a fundamental right guaranteed by the republic. Each side had its political champions who sought to bend the Court to its perspective, believing that stakes high enough to warrant the meddling. Holmes disagreed.
Whether these theories, these economic experiments, resulted in disaster was not, Holmes thought, a judge’s business. Just now, in 1905, the experiments tended all towards combination, collectivism. And whether the combination was of capital, as in the Northern Securities case, or of labor wishing to protect itself by state laws, as in the Lochner case -- at all events let the experiments be made. Those men who, fearing experiment, desire to preserve the status quo, let those men -- be they judges, capitalists, or laboring men -- not hide behind the Sherman Act or the vague phrases of the due process clause.
To the partisan, Holmes was trying to have it both ways. He “lacked a backbone.” But Holmes was trying to avoid partisanship and focus solely on what he believed was required in his role as judge. The question was never what do we wish the law said? It was always what does the law actually say?
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This post first appeared on Eric Lanke's blog, an association executive and author. You can follow him on Twitter @ericlanke or contact him at eric.lanke@gmail.com.
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